PUT AND CALL OPTION AGREEMENT
PUT AND CALL OPTION AGREEMENT entered into this 15th day of
February, 1996 (this "Agreement"), by and among Presstek, Inc., a Delaware
corporation (the "Buyer") and Xxxxx X. Xxxx ("Xxxx"), Xxxx X. Xxxxxxxx
("Xxxxxxxx") (collectively, the "Selling Shareholders") and Xxxx X. Xxxxxxx
("Madocks") and Catalina Coatings, Inc., an Arizona corporation ("Catalina").
W I T N E S S E T H :
WHEREAS, the Buyer, the Selling Shareholders, Xxxxx X. Xxxx
and Xxxx X. Xxxx, as Trustees of the Xxxxx and Xxxx Xxxx Charitable Remainder
Unitrust, dated February 12, 1996 (the "Trustees"), Madocks and Catalina have
entered into a Stock Purchase Agreement of even date herewith, pursuant to which
the Selling Shareholders and the Trustees sold and the Buyer purchased 11,250
shares of Common Stock of Catalina ("Common Stock") constituting 90% of the
issued and outstanding shares of Common Stock (the "Stock Purchase Agreement");
WHEREAS, the obligation of the Buyer to purchase the shares of
Common Stock pursuant to the Stock Purchase Agreement is subject to the
execution and delivery of this Agreement;
WHEREAS, the Selling Shareholders have transferred a
portion of the shares of Common Stock to Madocks;
WHEREAS, the Selling Shareholders and Madocks desire to grant
to the Buyer an irrevocable call option, but not the obligation, which shall
give the Buyer the right to purchase 1,429 shares of Common Stock as such shares
are still owned by the Selling Shareholders and Madocks (the "Option Shares"),
subject to the terms and conditions hereinafter set forth;
WHEREAS, the Buyer desires to grant to the Selling
Shareholders and Madocks a put option, which shall give the Selling Shareholders
the right to sell to the Buyer the Option Shares, on the terms and conditions
hereinafter set forth; and
WHEREAS, unless otherwise indicated, the terms herein shall
have the same meaning as used in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. The Call Option.
1.1. Each Selling Shareholder and Madocks hereby grant to
the Buyer, subject to the terms and conditions of this Agreement, an irrevocable
option, but not the obligation, to purchase all, but not less than all, of the
Option Shares listed on Exhibit A hereto as owned by such Selling Shareholder
and Madocks (the "Call Option"), exercisable at the sole discretion of the Buyer
at a single time at anytime from and after the fourth anniversary from the date
hereof (the "Call Exercise Period").
1.2. The Buyer may exercise the Call Option by giving
written notice of such election to the Selling Shareholders in accordance with
paragraph 7 hereby (the "Call Exercise Notice").
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1.3. The closing of the Option Shares purchased pursuant to
exercise of the Call Option shall take place no later than ten (10) days after
receipt by the Selling Shareholders and Madocks of the Call Exercise Notice (the
"Option Closing Date").
1.4. The purchase price for the Option Shares purchased
pursuant to the exercise of the Call Option shall be $2,000,000 payable
$1,371,588 to Xxxx, $589,223 to Xxxxxxxx, and $39,189 to Madocks. The aggregate
purchase price for the Option Shares subject to the Call Option is hereinafter
referred to as the "Call Purchase Price."
1.5. Each certificate representing the Option Shares shall
have stamped, printed or typed thereon, the following legend:
"The sale, assignment, transfer, pledge or
hypothecation of the Shares represented by
this certificate is subject to a Put and Call
Option Agreement dated as of the 15th day of
February, 1996 by and among PRESSTEK, INC.,
XXXXX X. XXXX, XXXX X. XXXXXXXX, XXXX X.
XXXXXXX and XXXXXXXX COATINGS, INC., an
executed copy of which is on file at the
office of Catalina Coatings, Inc."
2. The Put Option.
2.1. The Buyer hereby grants to the Selling Shareholders
and Madocks the separate right, but not the obligation, to cause the Buyer to
purchase those shares of the Option Shares owned by him at a single time subject
to the terms and conditions of this Agreement, at anytime from and after the
fourth anniversary from the date hereof plus six months, subject to the possible
prior exercise of the Call Option (the "Put Option").
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2.2. The Selling Shareholders and Madocks may exercise the
Put Option by giving written notice of such election to the Buyer (a "Put
Exercise Notice") in accordance with the terms of paragraph 7 hereby.
2.3. The closing of the Option Shares sold pursuant to the
Put Option shall take place no later than ten (10) days after the receipt by the
Buyer of a Put Exercise Notice (the "Option Closing Date").
2.4. The purchase price for the Option Shares purchased
pursuant to the exercise of the Put Option shall be $685,794 for Xxxx, $294,611
for Xxxxxxxx, and $19,595 for Madocks. The purchase price for the Option Shares
subject to a Put Option is hereinafter referred to as the "Put Purchase Price".
3. Closing of Option Shares; Payment of Purchase Price. At
the closing, the Selling Shareholders and Madocks,as the case may be, shall
deliver the stock certificates representing his portion of the Option Shares to
the Buyer duly endorsed for transfer to the Buyer (or its designee) or
accompanied by properly executed stock powers (with signatures guaranteed and
otherwise in form acceptable for transfer on the books of Catalina free and
clear of any and all Liens, and free and clear of any provisions of any
stockholders' agreement or voting trust and the Selling Shareholders and Madocks
shall so represent. Also at the closing, the Call Purchase Price or the Put
Purchase Price, as the case may be, shall be paid by the Buyer by cash or by
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certified or cashier checks payable to each of Xxxx, Xxxxxxxx and Xxxxxxx
respectively, for the amounts set forth in subparagraph 1.4 or 2.4, as the case
may be.
4. Option Shares. For purposes of this Agreement, the
number of Option Shares shall be altered and adjusted by reason
of any capital stock changes in Catalina.
5. Simultaneous Transactions.
Any and all of the obligations of the parties pursuant to
this Agreement shall be subject to the consummation of the transaction
contemplated by the Stock Purchase Agreement.
6. Initial Public Offering. In the event of a successful
initial public offering with respect to Catalina prior to the fourth anniversary
of the Closing Date, this Agreement shall become null and void and of no further
force and effect and the parties shall no longer have any obligations to each
other, whatsoever, with respect to any provisions contained in this Agreement.
7. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given or made as of the date delivered if delivered personally, or received
if sent by overnight courier or if mailed by registered or certified mail,
postage prepaid, return receipt requested, as follows:
If to Selling
Shareholders: Xxxxx X. Xxxx
0000 X. Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxx X. Xxxxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
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Copy to: Chandler, Tullar, Xxxxx & Redhair
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Attn: Xxx X. Xxxxxx
If to Buyer: Presstek, Inc.
0 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Copy to: Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
or to such other address as any party shall have designated by like notice to
the other party hereto.
8. Complete Agreement.
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof.
9. Amendments.
No amendment, change, modification, addition or termination of
this Agreement or any part thereof shall be valid unless in writing and signed
by or on behalf of the party to be charged therewith, and no waiver of any of
the provisions hereof nor consent to any departure therefrom by any party
hereto, shall be effective unless in writing and signed by the party to be
charged with such waiver. No waiver shall be deemed a continuing waiver or
waiver in respect of any subsequent breach or default, whether of similar or
different nature, unless expressly so stated in writing.
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10. Headings.
The headings or captions in this Agreement are for convenience
and reference only, and do not form a part hereof, and do not in any way modify,
interpret or construe the intent of the parties or affect any of the provisions
of this Agreement.
11. Governing Law.
This Agreement is intended to be governed by, interpreted and
enforced in accordance with the laws of the State of New Hampshire, without
giving effect to conflicts of law principles.
12. Transfers and Assignment.
12.1. Neither this Agreement nor any rights, interests or
obligations hereunder may be assigned (by operation of law other than by reason
of death or otherwise) by any party hereto without the prior written consent of
all of the parties hereto.
12.2. Catalina shall not at any time permit any transfer
to be made on its books or records of the certificates representing the Option
Shares of any Selling Shareholder unless such transfer is made pursuant to, and
in accordance with, the terms and conditions of this Agreement.
12.3. Each of the Selling Shareholders and Madocks hereby
covenant that they shall not sell, transfer, convey, pledge, encumber or
otherwise dispose of all or any of his Option Shares, except as provided in this
Agreement.
12.4. Notwithstanding the foregoing, the Selling
Shareholders and Madocks may assign and transfer ownership of any or all of
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their respective Option Shares and their rights and obligations under this
Agreement to a trust or trusts in which they or their family members or their
estate, or any combination thereof, is the beneficiary, and additionally, in the
case of Xxxxxxxx, in which Xxxxx Xxxxxx is a beneficiary.
13. Binding Effect; Benefits. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
Nothing herein contained, express or implied, is intended to confer upon any
person other than the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns, any rights or remedies under
or by reason of this Agreement.
14. Severability. Any provision of this Agreement which is
held by a court of competent jurisdiction to be prohibited or unenforceable in
any jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the day and year first above written.
PRESSTEK, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title Chairman
/s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx
/s/ Xxxx X. Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
XXXXXXXX COATINGS, INC.,
an Arizona corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: President
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EXHIBIT A
Selling Shareholder Number of Option Shares Owned
------------------- -----------------------------
Xxxxx X. Xxxx 000
Xxxx X. Xxxxxxxx 367
Xxxx X. Xxxxxxx 25
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TOTAL 1,250
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