OPTION AGREEMENT
OPTION AGREEMENT (the "Agreement"), dated as December 9, 1998,
by and between Xxxxxx Products Company, a Delaware corporation (the "Seller"),
and The Cutex Company, a Delaware corporation (the "Buyer").
WHEREAS, the Seller and the Buyer have entered into an Asset
Purchase Agreement dated as of December 9, 1998 (the "Purchase Agreement";
capitalized terms used herein but not defined herein shall have the meanings set
forth in the Purchase Agreement), which provides for, among other things, the
purchase by the Buyer from the Seller of all of the Seller's right, title and
interest in and to (I) all intellectual property relating to the CUTEX name for
use in the United States and Puerto Rico (the "Territory") and certain related
assets (including without limitation the intellectual property and certain
related assets relating to the sale, distribution, packaging, manufacture and
marketing of the Option Products (as defined below) (the "Option Business"),
which intellectual property relating to the Option Business shall be licensed by
the Buyer to the Seller pursuant to the License Agreement (as defined below) and
(II) the assets used in the business of selling, distributing, packaging,
manufacturing and marketing CUTEX products in the Territory, including, without
limiting the foregoing, nail polish remover products and nail care implement
products (together, the "Transferred Products"), which Transferred Products do
not, except as set forth in Section 1.1 of the Purchase Agreement, include the
assets used by the Seller exclusively in the business of selling, distributing,
packaging, manufacturing and marketing CUTEX nail enamel products and nail care
treatment products in the Territory, which are being retained by the Seller (the
"Option Products");
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Seller and the Buyer are entering into a License Agreement (the
"License Agreement") which permits the Seller to use certain intellectual
property relating to the CUTEX name in connection with the Option Business
following the Closing; and
WHEREAS, as a condition and inducement to the Buyer's
willingness to enter into the Purchase Agreement and the License Agreement, the
Buyer has required that the Seller agree, and the Seller has so agreed, to grant
to the Buyer an option to purchase the Option Business on the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein and in the Purchase Agreement,
the parties hereto agree as follows:
1. Grant of Option. The Seller hereby grants the Buyer an
irrevocable option (the "Option") to purchase all inventories of finished Option
Products ("Inventories") owned by the Seller on the date of the Option Closing
(as defined below) and the items set forth in clauses (ii), (iii), (ix), (x) and
(xi) of Section 1.1 of the Purchase Agreement to the extent they relate to the
Option Products and the Option Business (together with the Inventories, the
"Option Assets") in the manner and at the price provided for in Section 3 and
Section 4 below.
2. Exercise of Option. The Option may be exercised by the
Buyer at any time following the date hereof and on or prior to June 9, 1999 (the
"Option Period"); provided that if the Option cannot be exercised on the last
day of the Option Period because of any injunction, order or similar restraint
issued by a court of competent jurisdiction, the Option shall expire on the
tenth business day after such injunction, order or restraint shall have been
dissolved or when such injunction, order or restraint shall have become
permanent and no longer subject to appeal, as the case may be. In the event the
Buyer wishes to exercise the Option, the Buyer shall deliver to the Seller a
written notice (an "Exercise Notice") specifying that it wishes to purchase the
Option Assets in accordance with the terms hereof. The closing of a purchase of
the Option Assets (the "Option Closing") shall occur at a place, on a date and
at a time agreed upon by the parties, but in no event more than ten (10)
business days following delivery of the Exercise Notice subject to the receipt
of all requisite consents and approvals and the satisfaction of all other
conditions precedent set forth herein. The date on which the Option Closing
takes place is herein called the "Option Closing Date". If the Buyer does not
deliver an Exercise Notice prior to the close of business on the last day of the
Option Period, the Option shall terminate and be of no further force or effect.
3. Further Assurances. During the Option Period, the Seller
will afford the Buyer, its counsel and its accountants, during normal business
hours, reasonable access to the books, records and other data relating to the
Option Assets in its possession and the right to make copies and extracts
therefrom, to the extent that such access may be reasonably required by the
Buyer in connection with the Buyer's decision to exercise the Option. In the
event that the Buyer delivers an Exercise Notice to the Seller, the parties
agree to negotiate in good faith instruments of sale, transfer, conveyance,
assignment, assumption and confirmation in order to transfer, convey and assign
to the Buyer all of the Seller's right, title and interest in, to and under the
Option Assets (the "Transfer Documents") and to execute and deliver all such
further documents and instruments and to take all such further action as may be
necessary to put the Buyer in actual possession and operating control of the
Option Assets (including obtaining any consent, approval, order or authorization
of, or any registration, declaration or filing with, any governmental entity,
domestic or foreign, or other person, required to be obtained or made in
connection with the taking of any action contemplated by this Agreement).
Without limiting the foregoing, the Seller will transfer and assign to the Buyer
such Contracts, assets, properties and rights of the Seller and its Affiliates
relating exclusively to the Option Business and the Option Products as the Buyer
shall reasonably request in order to enable the Buyer to conduct such business
in the same manner as the Seller. The Buyer shall not assume or agree to pay,
perform or discharge or to indemnify the Seller or hold it harmless from any
obligations not expressly assumed by the Buyer under the Transfer Documents
(which shall be limited to obligations accruing with respect to periods after
the Option Closing under the contracts that the Buyer agrees to assume and
liabilities arising out of the Buyer's ownership or use of the Option Assets or
the Option Business after the Option Closing). The Seller agrees to pay, perform
and discharge, and agrees to indemnify the Buyer and hold it harmless from, all
obligations and liabilities of the Seller except those that Buyer shall have
expressly assumed under the Transfer Documents. If the Buyer shall purchase the
Option Assets in accordance with the terms of this Agreement, from time to time
and without additional consideration the Seller will execute and deliver, or
cause to be executed and delivered, such additional or further bills of sale,
endorsements, assignments, consents and other instruments as the Buyer may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement, including, but not limited to, the sale,
conveyance, assignment, transfer and delivery of the Option Assets to the Buyer
and the release of any and all claims, liens, charges, security interests and
encumbrances with respect thereto.
4. Delivery of Inventory Statement; Payment of Closing
Payment. (a) If the Buyer delivers an Exercise Notice to the Seller pursuant to
Section 2, the Seller shall, as soon as reasonably practicable prior to the
Option Closing, deliver to the Buyer a statement (the "Inventory Statement") of
the value of the Inventories as of the Option Closing Date determined in
accordance with paragraph (e) below (the "Inventory Amount"), The Inventory
Amount shall reflect a physical count of the Inventories conducted by the Seller
and its representatives at the opening of business on the second business day
prior to the Option Closing Date. The Buyer and its representatives shall have
the right to observe the physical count of the Inventories, review all books,
work papers and procedures in connection with the preparation of the Inventory
Statement and perform any other reasonable procedures necessary to verify the
accuracy thereof.
(b) At the Option Closing, the Buyer shall pay to the Seller,
against delivery of Transfer Documents necessary or appropriate to sell, convey,
assign, transfer and deliver to the Buyer good title to the Option Assets and to
evidence the satisfaction of the conditions to the obligations of the Buyer
hereunder, by wire transfer of immediately available funds to the Seller's
account at the bank and account number which the Seller will provide to the
Buyer at least three (3) days prior to the Option Closing, an amount equal to
the Inventory Amount set forth in the Inventory Statement (the "Closing
Payment").
(c) Unless the Buyer notifies the Seller in writing within 30
days after receipt of the Inventory Statement that the Buyer objects to the
Seller's calculation of the Inventory Amount on the grounds that the Inventory
Statement (i) was not prepared in accordance with this Section 4 and/or (ii)
contained arithmetic or counting errors and specifies in reasonable detail the
basis for such objection, the Inventory Statement shall become final and binding
upon the parties. If the Buyer submits written objections to the Seller within
such period, the Buyer and the Seller shall negotiate in good faith to resolve
such objections during the 30-day period after the Seller's receipt of the
Buyer's notice of objections. During such 30-day period, the Seller and its
representatives shall have the right to review all books and work papers and
procedures related to such notice of objections, the calculation thereof and
basis therefor. If the Buyer and the Seller are unable in good faith to resolve
such objections within such 30-day period, the disputed matters shall be
submitted to a nationally recognized public accounting firm mutually agreed upon
by the Buyer and the Seller to determine the Inventory Amount in accordance with
paragraph (e) below (or, if the Buyer and the Seller are unable to agree upon a
firm within five (5) days after the end of such 30-day period, then the Buyer
and the Seller shall each select a nationally recognized public accounting firm
and such firms shall jointly select a third nationally recognized independent
accounting firm to resolve the disputed matters). The accounting firm selected
in accordance with the previous sentence is referred to herein as the
"Independent Accounting Firm". The decision of the Independent Accounting Firm
shall be final and binding on the parties. The fees, costs and expenses of the
Independent Accounting Firm shall be borne by the Buyer and the Seller in the
inverse proportion as they may prevail on matters resolved by the Independent
Accounting Firm, which proportionate allocations shall also be determined by the
Independent Accounting Firm at the time the determination of the Independent
Accounting Firm is rendered on the merits of the matters submitted. After final
determination of any disputes with respect to the Inventory Amount as set forth
on the Inventory Statement, the parties shall have no further right to make any
claims against each other with respect to any element of the calculation of the
Inventory Amount.
(d) Within five (5) business days after the Inventory Amount
has been finally determined in accordance with the paragraph (c), the excess of
such amount over the amount of the Closing Payment, if any, shall be paid by the
Buyer to the Seller, or the shortfall of such amount below the amount of the
Closing Payment, if any, shall be paid by the Seller to the Buyer, as the case
may be, together with interest thereon at a rate equal to the rate of interest
from time to time announced publicly by Citibank N.A. as its prime rate,
calculated on the basis of the actual number of days elapsed divided by 365,
from and including the Option Closing Date to but excluding the date of payment.
Such payment shall be made by wire transfer of immediately available funds by
the Buyer or the Seller, as the case may be.
(e) For purposes of this Section 4, Inventory shall be valued
at lower of market value or cost using the first-in, first-out method in
accordance with generally accepted accounting principles consistently applied.
5. Representations and Warranties of the Seller. (a) The Seller represents
and warrants to the Buyer that (i) the Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder, (ii) the execution and delivery of this
Agreement by the Seller and the consummation by the Seller of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Seller and no other corporate proceedings on the part of the
Seller are necessary to authorize this Agreement or any of the transactions
contemplated hereby and (iii) this Agreement has been duly executed and
delivered by the Seller and constitutes a valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or
the other documents to be executed on the Option Closing Date by the Seller
nor the consummation of the transactions contemplated hereby or thereby will:
(i) conflict with or violate any provision of the certificate or articles of
incorporation or by-laws of the Seller, (ii) conflict with or violate any
statute, law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to the Seller, or (iii) conflict with or result in any breach
of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or result in the creation of any Lien
pursuant to, any agreement or other instrument to which the Seller is a party or
by which any of its assets are bound. No notice, declaration, report or other
filing or registration with, and no waiver, consent, approval or authorization
of, any governmental or regulatory authority or instrumentality or any other
person is required to be given, made or obtained by the Seller in connection
with the execution, delivery or performance of this Agreement.
(c) At the Option Closing, the Seller will transfer good title
to the Option Assets, free and clear of all Liens.
6. Representations and Warranties of the Buyer. (a) The Buyer represents
and warrants to the Seller that (i) the Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder, (ii) the execution and delivery of this
Agreement by the Buyer and the consummation by the Buyer of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Buyer and no other corporate proceedings on the part of the
Buyer are necessary to authorize this Agreement or any of the transactions
contemplated hereby and (iii) this Agreement has been duly executed and
delivered by the Buyer and constitutes a valid and binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or
he other documents to be executed on the Option Closing Date by the Buyer nor
the consummation of the transactions contemplated hereby or thereby will: (i)
conflict with or violate any provision of the certificate or articles of
incorporation or by-laws of the Buyer, (ii) conflict with or violate any
statute, law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to the Buyer, or (iii) conflict with or result in any breach
of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or result in the creation of any Lien
pursuant to, any agreement or other instrument to which the Buyer is a party or
by which any of its assets are bound. No notice, declaration, report or other
filing or registration with, and no waiver, consent, approval or authorization
of, any governmental or regulatory authority or instrumentality or any other
person is required to be given, made or obtained by the Buyer in connection with
the execution, delivery or performance of this Agreement.
7. Certain Covenants of the Parties.
(a) If the Buyer exercises the Option, effective as of the
Option Closing Date, the license granted under the License Agreement shall
terminate and shall cease to be of any further force or effect.
(b) The Seller shall indemnify, defend and hold harmless the
Buyer Group against any and all Losses arising out of or resulting from, in
connection with or otherwise with respect to (i) any breach by the Seller of any
of its representations, warranties, covenants or agreements contained in this
Agreement or (ii) any liabilities or obligations of any kind to the extent
arising out of or resulting from the operation or conduct of the Option Business
through the close of business on the Option Closing Date.
(c) The Buyer shall indemnify, defend and hold harmless the
Seller Group against any and all Losses arising out of or resulting from, in
connection with or otherwise with respect to (i) any breach by the Buyer of any
of its representations, warranties, covenants or agreements contained in this
Agreement or (ii) any liabilities or obligations of any kind to the extent
arising out of or resulting from the Buyer's operation or conduct of the Option
Business, including, without limitation, in respect of returns of Option
Products, following the close of business on the Option Closing Date.
(d) Any claims for indemnity by the Buyer Group or the Seller
Group pursuant to paragraph (b) or (c) above, shall be made and resolved in
accordance with the provisions of Section 8.2 of the Purchase Agreement.
(e) During the Option Period, neither Seller nor any affiliate
of Seller shall, nor shall they permit any of their respective officers,
directors, stockholders or other representatives to, directly or indirectly,
encourage, solicit, initiate or participate in discussions or negotiations with,
or provide any information or assistance to, any person or group (other than
Buyer and its representatives) concerning any sale of any of the Option Assets
(other than the sale of Inventory in the ordinary course) or any other
transaction that would adversely impact Buyer's rights or Seller's obligations
under this Agreement, or consummate any such sale or other transaction.
8. License to Use Certain Trademarks and Trade Names.
(a) After the Option Closing Date, the Seller hereby permits
and gives the Buyer a royalty-free, non-exclusive right and license in the
Territory, solely in connection with the sale of Inventories, to use any name,
logo, design, UPC Code and any other trademarks or service marks owned and used
by the Seller which appear on Option Products which have been sold prior to the
Option Closing Date and which are not part of the Intellectual Property
("Retained Trade Names"). The Seller hereby permits and gives the Buyer a
royalty-free, non-exclusive right and license in the Territory to use the
Retained Trade Names on new packaging materials produced by Buyer during the
six-month period following the Option Closing Date for use in connection with
the Option Products. The Seller hereby permits and gives the Buyer a
royalty-free, perpetual, non-exclusive right and license in the Territory to use
the Retained Trade Names on (i) any Inventory transferred to the Buyer pursuant
to this Agreement, whenever produced, and (ii) any Inventory produced by Buyer
during the six-month period following the Option Closing Date in accordance with
the previous sentence.
(b) Except to the extent permitted pursuant to Section 8(a),
the Buyer shall not use or permit the use of any of the Retained Trade Names in
any manner. Following the Option Closing, the Seller will use commercially
reasonable efforts to modify the equipment used to produce such packaging
materials as soon as reasonably practicable to remove the Retained Trade Names
from such equipment.
9. Shipment of the Inventories. Within thirty (30) days after the Option
Closing Date, the Buyer shall arrange for, at the Buyer's expense, the shipment
of the Inventories from the Seller's facilities to the Buyer's designated
facilities. Title and risk of loss with respect to the Inventories shall pass to
the Buyer effective as of the close of business on the Option Closing Date.
10. Sale of Components and Packaging. To the extent that AM Cosmetics Inc.
("AM") returns to the Seller components and packaging used by AM in the
manufacture of nail products pursuant to the terms of the Manufacturing
Agreement dated as of April 30, 1997 between AM and the Seller, for a period of
six months following the Option Closing Date, if the Buyer so requests, the
Seller will sell such components and packaging to the Buyer at the Seller's cost
and on an as-needed basis. In the event that the Seller engages an alternative
manufacturer in lieu of AM in connection with the manufacture of the Option
Products, the provisions of this Section 10 shall apply with respect to such
alternative manufacturer.
11. Binding Effect; No Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as expressly provided for in this Agreement, neither
this Agreement nor the rights or the obligations of either party hereto are
assignable, except by operation of law, or with the written consent of the other
party. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person other than the parties hereto and their respective
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement.
12. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that, in addition to other remedies, the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of this Agreement,
neither party will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
13. Entire Agreement. This Agreement, the Purchase Agreement and the
License Agreement (including the Exhibits and Schedules thereto) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
14. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision.
15. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by certified or registered mail, postage prepaid, and shall be deemed to
be given, dated and received when so delivered personally, telegraphed or
telecopied or, if mailed, five business days after the date of mailing to the
following address or telecopy number, or to such other address or addresses as
such person may subsequently designate by notice given hereunder.
If to the Seller to:
Xxxxxx, Inc.
x/x Xxxxxxxxxxx Xxxxxxx Xxxxx, X.X.X.
Xxx Xxxxxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
and to:
Xxxxxx Products Company
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
and Xxxxxx X. Xxxxx, Esq.
If to the Buyer to:
The Shansby Group
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx and
Xxx Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxx, Esq.
and to:
Medtech Laboratories, Inc.
X.X. Xxx 0000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxxxxxxx, Xxxxxx & Xxxxxxx, P.C.
0000 Xxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State without regard to any applicable
conflicts of law rules.
17. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
19. Expenses. Except as otherwise expressly provided herein or in the
Purchase Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
20. Amendments; Waiver. This Agreement may be amended by the parties hereto
and the terms and conditions hereof may be waived only by an instrument in
writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXX PRODUCTS COMPANY
By: ___________________________
Name:
Title:
THE CUTEX COMPANY
By: ___________________________
Name:
Title:
