REPURCHASE AGREEMENT
THIS REPURCHASE AGREEMENT dated as of February 5, 1996, by and among
OLYMPIC INDUSTRIES, INC., an Ohio corporation ("Olympic"), XXXXXXX X. XXXXXX
("Xxxxxx") (Olympic and Xxxxxx collectively referred to as "Sellers"), ETS
LINER, INC., a Virginia corporation ("Buyer") and ETS INTERNATIONAL, INC., a
Virginia corporation ("ETS"), provides,
Section 1. Background. Buyer is acquiring substantially all of the
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assets of Sellers used in or related to the business known as Pipe-Liner
Installers pursuant to an Asset Purchase Agreement of even date herewith
(the "Asset Purchase Agreement"). All capitalized terms used but not
defined herein shall have the meanings assigned to them under the Asset
Purchase Agreement. As payment of the Purchase Price, Sellers received
Acquisition Shares. Sellers and Buyer desire to provide for a mechanism
whereby ETS, the parent of Buyer, will repurchase, at the option of Sellers,
up to one-half of the Acquisition Shares one year from the date hereof (the
"First Anniversary Date") and, at the option of Sellers, up to one-half of
the Acquisition Shares two years from the date hereof (the "Second
Anniversary Date").
Section 2. Repurchase of Shares. ETS grants to Sellers the option to
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sell to ETS, or its designee, all of the Acquisition Shares (the "Repurchase
Shares") and ETS agrees to purchase the Repurchase Shares, pursuant to the
terms and conditions contained herein and in the amounts set forth below:
Option Date Number of Shares
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First Option First Anniversary Date up to 1/2 of
Acquisition Shares
Second Option Second Anniversary Date up to 1/2 of
Acquisition Shares
Section 3. Exercise of Option. The option granted in Section 2 may
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be exercised with respect to the Repurchase Shares during the period
beginning 30 days prior to the First Anniversary Date and ending on the
First Anniversary Date (the "First Option Period")and during the period
beginning 30 days prior to the Second Anniversary Date and ending on the
Second Anniversary Date (the "Second Option Period"). The option must be
exercised, if at all, in a writing delivered to ETS, its successors and
assigns, as the case may be, during the First Option Period or during the
Second Option Period. The notice shall contain the number of shares to be
repurchased. The first option shall expire if not exercised by the First
Anniversary Date and the second option shall expire if not exercised by the
Second Anniversary Date.
Section 4. Repurchase Price. The purchase price per share for the
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Repurchase Shares will be the Stock Price set forth in the Asset Purchase
Agreement (the "Repurchase Price").
Section 5. Payment of Repurchase Price. The Repurchase Price shall
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be payable in full at Closing and shall be paid in cash, or by certified or
cashier's check. ETS will use its reasonable best efforts to purchase the
Repurchase Shares at Closing. However, if ETS is unable to purchase all of
the Repurchase Shares at Closing, then ETS shall have the option to continue
the Closing for a period not to exceed one hundred eighty (180) days. In
the event ETS elects to continue the Closing, the Repurchase Price shall be
increased by 10%.
Section 6. Closing. Closing on the first option shall take place
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thirty (30) days after the First Anniversary Date and closing on the second
option shall take place thirty (30) days after the Second Anniversary Date
(the "Closing").
Section 7. Security Interest. As security for ETS' obligation to
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repurchase and Buyer's indemnity obligations, Buyer hereby grants to Sellers
a first lien security interest in all of the assets of Buyer (the "Assets"),
pursuant to the Security Agreement and UCC-1 financing statements signed by
the parties.
Section 8. Sales During Option Period. Any sale of Acquisition
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Shares by Sellers during the Option Period or shares used to satisfy
indemnification claims under the Asset Purchase Agreement shall reduce the
number of Repurchase Shares to be purchased by ETS.
Section 9. Ownership of Shares. ETS' obligations hereunder are
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conditioned upon the Sellers holding good title to the Repurchase Shares and
delivery of such shares free and clear of all mortgages, liens,
encumbrances, and other restrictions.
Section 10. Assignment. Sellers, collectively and individually, shall
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not assign this Repurchase Agreement without the express written permission
of ETS and Buyer. ETS and Buyer may withhold their permission for any
reason.
Section 11. Notices. Any notice required to be sent pursuant to the
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terms of this Repurchase Agreement shall be deemed given when hand-delivered
or sent postage prepaid by registered or certified mail, addressed to the
following addresses or such other address designated in a writing delivered
to the appropriate party:
To ETS or BUYER: Xxxx X. XxXxxxx
ETS International, Inc.
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxxx 00000-0000
To SELLERS: Xxxxxxx X. Xxxxxx
0000 XX Xxxxxxx Xxxxxxx
Xxxx Xxxx, Xxxxxxx 00000
Section 12. Entire Agreement. This Repurchase Agreement constitutes
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the entire agreement between the parties with respect to the subject matter.
This Repurchase Agreement may be modified or amended by a writing executed
by all of the parties.
Section 13. Construction. The interpretation, construction and
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performance of this Repurchase Agreement shall be governed by the laws of
the Commonwealth of Virginia.
Section 14. Benefits. This Repurchase Agreement shall inure to the
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benefit of, and bind the heirs, successors and assigns of the respective
parties.
Section 15. Registration of Acquisition Shares. In the event the
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Acquisition Shares are included on the pending registration statement as
outlined in Section 3.16 of the Asset Purchase Agreement, the second option
exercisable on the Second Anniversary Date shall be null and void.
WITNESS the following signatures as of the date first above written.
OLYMPIC INDUSTRIES, INC.
By s/X. X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Individually
ETS INTERNATIONAL, INC.
By s/Xxxx X. XxXxxxx
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Its s/President
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ETS LINER, INC.
By s/Xxxx X. XxXxxxx
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Its s/CEO
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