AGREEMENT
Agreement dated October , 1997 between U.S. Home & Garden
Inc., a Delaware corporation (the "Company"), and ____________ (the "Seller").
W I T N E S S E T H :
WHEREAS, the Seller is the holder of Unit Purchase Option
UPO-7 dated July 17, 1996 (the "UPO") which represents the right of the Seller
to purchase from the Company for $100,000 per unit (the "Units"), up to 8.95
Units, each Unit consisting of 43,860 shares of the Company's common stock,
$.001 par value ("Common Stock"), and Class B Warrants to purchase an
additional 43,860 shares of Common Stock at $2.28 per share.
WHEREAS, the Company is contemplating an underwritten public
offering through Everen Securities, Inc. and Xxxxxxxxxx Xxxx & Xxxx,
Incorporated of approximately five million shares of Common Stock to be sold
by the Company and of certain additional shares of Common Stock to be sold by
certain selling stockholders (the "Public Offering");
WHEREAS, it is contemplated that the registration statement
(the "Registration Statement") relating to the Public Offering will be filed
with the Securities and Exchange Commission ("SEC") within ten (10) business
days of the date of this Agreement;
WHEREAS, the Seller wishes to sell the UPO to the Company
and the Company wishes to purchase the UPO from the Seller, utilizing a
portion of the net proceeds it receives from the Public Offering, upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of
mutual promises and conditions herein and for such other consideration the
receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. The Seller hereby agrees to sell the UPO to the Company
at the price set forth in Section 3 below. The Company, on the basis of the
representations, warranties, covenants and agreements of the Seller contained
herein, hereby agrees to purchase the UPO from the Seller. Notwithstanding the
foregoing, the parties hereto agree that the sale and purchase of the UPO
contemplated by this Agreement is contingent upon the consummation of the
Public Offering at a price to the public of not less than $5.00 per share of
Common Stock.
2. The sale of the UPO by the Seller to the Company will
occur (the "Closing") on such date that is five days after the closing of the
Public Offering or such earlier or later date as the parties hereto shall
agree. At such Closing, the Company will make payment for the UPO by certified
check or such other method as agreed to by the parties hereto, against
delivery of the original UPO to it by the Seller.
3. The purchase price for the UPO will equal the difference
between (i) the product obtained by multiplying (x) 785,094 and (y) the price
to the public for each share of Common Stock to be sold in the Public
Offering, but not less than $5.00, and (ii) $1,790,000.
4. In connection with the sale of the UPO as contemplated by
this Agreement the Seller hereby represents and warrants and covenants with
the Company that (i) the Seller has full power and authority, to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby, (ii) the execution, delivery and performance of this
Agreement by the Seller, the consummation by the Seller of the transactions
herein contemplated and the compliance by the Seller with the terms of this
Agreement, have been duly authorized by all necessary action, and this
Agreement has been duly executed and delivered by the Seller, (iii) the
execution and delivery of this Agreement by the Seller and the performance by
the Seller of his obligations hereunder will not conflict with or constitute
an event of default or breach of any agreement, document or instrument to
which the Seller is a party, or any law, rule or regulation or court order
-2-
applicable to the Seller, (iv) this Agreement is the valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the rights of
creditors generally and the discretion of the courts in granting equitable
remedies and except that enforceability of the indemnification provisions set
forth herein may be limited by the federal securities laws of the United
States or public policy underlying such laws, (v) no authorization, approval,
consent, order, registration, license or permit of any court or other
government agency or authority is necessary for the sale by the Seller of the
UPO to the Company, (vi) the UPO to be sold to the Company is currently owned
by the Seller, and immediately after the sale thereof to the Company such UPO
will be owned by the Company, free and clear of all security interests,
claims, liens, encumbrances, and charges whatsoever, and (vii) the Seller
agrees to waive any registration rights he may have to include the UPO or the
securities underlying the UPO in the Public Offering.
5. The Seller agrees to indemnify the Company and each
officer and director of the Company from and against any and all losses,
claims, damages, expenses or liabilities, joint or several (and actions in
respect thereof), to which they or any of them may become subject under any
statute or at common law or otherwise, and will reimburse the Company and each
such person, if any, for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or defending any actions,
whether or not resulting in any liability, insofar as such losses, claims
damages, expenses, liabilities or actions arise out of or are based upon any
breach by the Seller of any of his representations, warranties and covenants
contained in this Agreement.
6. This Agreement shall terminate if the Public Offering is
not consummated by December 31, 1997, which date shall be automatically
extended by thirty (30) days if prior to December
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31, 1997 the Company has received comments on the Registration Statement from
the SEC and has responded to such comments. The Company shall notify the
Seller as promptly as practicable of its decision to terminate the Public
Offering or any material discussions with respect thereto. This Agreement will
automatically terminate upon receipt by the Seller of a notification by the
Company that it has abandoned the Registration Statement.
7. Prior to the Closing the Seller will not offer, sell,
assign, transfer, encumber, contract to sell, grant an option to purchase or
otherwise dispose of the UPO or any interest therein without the consent of
the Company.
8. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
9. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, and (b) waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall only be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
10. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally, by
overnight courier or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice, except
that notices of changes of address shall be effective upon receipt):
if to the Company:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, President
Fax: (000) 000-0000
-4-
with a copy to:
Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
if to the Seller:
to: __________________
__________________
__________________
New York, New York _____
with a copy to:
__________________
__________________
__________________
New York, New York _____
Fax: (212) ________
11. Seller shall consult with the Company prior to issuing
any press release or otherwise making any public statement with respect to the
contents of this Agreement or the transactions contemplated hereby and shall
not issue any such press release or make any such public statement prior to
such consultation, except as may be required by law or applicable stock
exchange or NASDAQ regulations (prior consultation shall occur in such events
to the extent practicable).
12. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in
-5-
an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the greatest extent possible.
13. This Agreement constitutes the entire agreement, and
supersedes all prior agreements and undertakings, both written and oral,
between the parties, or any of them, with respect to the subject matter
hereof.
14. This Agreement shall not be assigned by operation of law
or otherwise.
15. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
16. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be original, but all of
which taken together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Company and the Seller have caused
this Agreement to be executed as of the date first written above.
U.S. HOME & GARDEN INC.
By:___________________________________
Name:
Title:
___________________________________
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AGREEMENT
Agreement dated October , 1997 between U.S. Home & Garden
Inc., a Delaware corporation (the "Company") and ____________ (the "Seller").
W I T N E S S E T H :
WHEREAS, the Seller is the holder of a Unit Purchase Option
dated August 1993 (the "UPO") which represents the right of the Seller to
purchase from the Company for $1,200 per unit (the "Units"), up to one hundred
thirty four and seven-tenths (134.7) Units, each Unit consisting of 400 shares
of the Company's common stock, $.001 par value ("Common Stock"), and Class A
Warrants to purchase an additional 264 shares of Common Stock at $1.89 per
share.
WHEREAS, the Company is contemplating an underwritten public
offering through Everen Securities, Inc. and Xxxxxxxxxx Xxxx & Xxxx,
Incorporated of approximately five million shares of Common Stock to be sold
by the Company and of certain additional shares of Common Stock to be sold by
certain selling stockholders (the "Public Offering");
WHEREAS, it is contemplated that the registration statement
(the "Registration Statement") relating to the Public Offering will be filed
with the Securities and Exchange Commission ("SEC") within ten (10) business
days of the date of this Agreement;
WHEREAS, the Seller wishes to sell the UPO to the Company
and the Company wishes to purchase the UPO from the Seller, utilizing a
portion of the net proceeds it receives from the Public Offering, upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of
mutual promises and conditions herein and for such other consideration the
receipt and sufficiency of which are hereby acknowledged, agree as follows:
5. The Seller hereby agrees to sell the UPO to the Company
at the price set forth in Section 3 below. The Company, on the basis of the
representations, warranties, covenants and
agreements of the Seller contained herein, hereby agrees to purchase the UPO
from the Seller. Notwithstanding the foregoing, the parties hereto agree that
the sale and purchase of the UPO contemplated by this Agreement is contingent
upon the consummation of the Public Offering at a price to the public of not
less than $5.00 per share of Common Stock.
6. The sale of the UPO by the Seller to the Company will
occur (the "Closing") on such date that is five days after the closing of the
Public Offering or such earlier or later date as the parties hereto shall
agree. At such Closing, the Company will make payment for the UPO by certified
check or such other method as agreed to by the parties hereto, against
delivery of the original UPO to it by the Seller.
7. The purchase price for the UPO will equal the difference
between (i) the product obtained by multiplying (x) 89,440.8 and (y) the price
to the public for each share of Common Stock to be sold in the Public
Offering, but not less than $5.00, and (ii) $228,850.
8. In connection with the sale of the UPO as contemplated by
this Agreement the Seller hereby represents and warrants and covenants with
the Company that (i) the Seller has full power and authority, to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby, (ii) the execution, delivery and performance of this
Agreement by the Seller, the consummation by the Seller of the transactions
herein contemplated and the compliance by the Seller with the terms of this
Agreement, have been duly authorized by all necessary action, and this
Agreement has been duly executed and delivered by the Seller, (iii) the
execution and delivery of this Agreement by the Seller and the performance by
the Seller of his obligations hereunder will not conflict with or constitute
an event of default or breach of any agreement, document or instrument to
which the Seller is a party, or any law, rule or regulation or court order
applicable to the Seller, (iv) this Agreement is the valid and
-2-
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the rights of creditors generally and the discretion of the courts in granting
equitable remedies and except that enforceability of the indemnification
provisions set forth herein may be limited by the federal securities laws of
the United States or public policy underlying such laws, (v) no authorization,
approval, consent, order, registration, license or permit of any court or
other government agency or authority is necessary for the sale by the Seller
of the UPO to the Company, (vi) the UPO to be sold to the Company is currently
owned by the Seller, and immediately after the sale thereof to the Company
such UPO will be owned by the Company, free and clear of all security
interests, claims, liens, encumbrances, and charges whatsoever, and (vii) the
Seller agrees to waive any registration rights he may have to include the UPO
or the securities underlying the UPO in the Public Offering.
5. The Seller agrees to indemnify the Company and each
officer and director of the Company from and against any and all losses,
claims, damages, expenses or liabilities, joint or several (and actions in
respect thereof), to which they or any of them may become subject under any
statute or at common law or otherwise, and will reimburse the Company and each
such person, if any, for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or defending any actions,
whether or not resulting in any liability, insofar as such losses, claims
damages, expenses, liabilities or actions arise out of or are based upon any
breach by the Seller of any of his representations, warranties and covenants
contained in this Agreement.
6. This Agreement shall terminate if the Public Offering is
not consummated by December 31, 1997, which date shall be automatically
extended by thirty (30) days if prior to December 31, 1997 the Company has
received comments on the Registration
-3-
Statement from the SEC and has responded to such comments. The Company shall
notify the Seller as promptly as practicable of its decision to terminate the
Public Offering or any material discussions with respect thereto. This
Agreement will automatically terminate upon receipt by the Seller of a
notification by the Company that it has abandoned the Registration Statement.
7. Prior to the Closing the Seller will not offer, sell,
assign, transfer, encumber, contract to sell, grant an option to purchase or
otherwise dispose of the UPO or any interest therein without the consent of
the Company.
8. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
9. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, and (b) waive compliance with any of the agreements or conditions
contained herein. Any such extension or waiver shall only be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
10. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally, by
overnight courier or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice, except
that notices of changes of address shall be effective upon receipt):
if to the Company:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, President
Fax: (000) 000-0000
-4-
with a copy to:
Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
if to the Seller:
to: __________________
__________________
__________________
New York, New York _____
with a copy to:
__________________
__________________
__________________
New York, New York _____
Fax: (212) ________
11. Seller shall consult with the Company prior to issuing
any press release or otherwise making any public statement with respect to the
contents of this Agreement or the transactions contemplated hereby and shall
not issue any such press release or make any such public statement prior to
such consultation, except as may be required by law or applicable stock
exchange or NASDAQ regulations (prior consultation shall occur in such events
to the extent practicable).
12. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in
-5-
an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the greatest extent possible.
13. This Agreement constitutes the entire agreement, and
supersedes all prior agreements and undertakings, both written and oral,
between the parties, or any of them, with respect to the subject matter
hereof.
14. This Agreement shall not be assigned by operation of law
or otherwise.
15. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
16. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be original, but all of
which taken together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Company and the Seller have caused
this Agreement to be executed as of the date first written above.
U.S. HOME & GARDEN INC.
By:_________________________________
Name:
Title:
____________________________________
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December __, 1997
U.S. Home & Garden Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, President
Gentlemen:
Reference is made to the two prior agreements (the "Original
Agreements") dated October 30, 1997 between U.S. Home & Garden Inc. (the
"Company") and the undersigned (the "Seller") pursuant to which the Seller
agreed to sell to the Company and the Company agreed to purchase from the
Seller, under certain conditions, certain Unit Purchase Options dated August
1993 and July 17, 1996 which represent the right of the Seller to purchase
from the Company certain shares of common stock of the Company and warrants to
purchase shares of common stock. The Seller understands that the price of the
shares of common stock to be sold in the Public Offering (as defined in the
Original Agreements) may be less than $5.00 per share and continues to desire
to consummate the transactions contemplated by the Original Agreements based
upon the offering price of the shares sold in the Public Offering, even if the
price is less than $5.00 per share.
In consideration of the foregoing and for such other
consideration the receipt and sufficiency of which are hereby acknowledged,
the Seller agrees as follows:
1. Paragraph 1 of the Original Agreements is hereby amended
by deleting the following from the last sentence: "at a price to the public of
not less than $5.00 per share of Common Stock."
2. Paragraph 3 of the Original Agreements is hereby amended
by deleting the following from subparagraph 3(i): "but not less than $5.00".
3. Except as set forth herein all terms and conditions of
the Original Agreements shall remain in full force and effect.
If the foregoing meets with your approval please countersign
a copy of this letter as provided below.
Very truly yours,
ACKNOWLEDGED AND AGREED TO:
U.S. HOME & GARDEN INC.
By:______________________________
Name and Title:
