EXHIBIT 10.17
CALL AGREEMENT
______________
CALL AGREEMENT, dated as of March 1, 2000, (as amended, modified or
supplemented from time to time, this "Agreement") among Xxxxx X. Xxxxxxx
("KM"), Xxxx X. Xxxxxxx ("TM") and Jackpot Enterprises, Inc., a Nevada
corporation (the "Company").
WHEREAS, KM and TM each own 49.5% of the membership interests (the
"Membership Interests") of Xxxxxxx Brothers Investments LLC, a Delaware
limited liability company ("MBI");
WHEREAS, each of KM and TM desire to grant to the Company the
option to purchase from each of KM and TM their respective Membership
Interests in MBI in exchange for shares of the Company; and
WHEREAS, the Company desires to accept such option.
NOW THEREFORE, in consideration of the agreements, premises and
mutual covenants contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Call Option. KM and TM hereby grant to the Company an option
to purchase from KM and TM, and KM and TM are each obligated to sell to the
Company under such option (the "Call Option") all, but not less
than all, of the Membership Interests in MBI held by KM and TM in exchange
for the Option Shares (as defined below). The Call Option may be exercised
at any time after the second anniversary of the date of this Agreement.
The Call Option shall each expire on the fourth anniversary of the date of
this Agreement (the "Call Period").
2. Option Shares. If the Company exercises its Call Option
during the Call Period, KM and TM shall be entitled to receive from the
Company in exchange for the Membership Interests in MBI being sold by him
that number of shares of the Company's Common Stock, par value $0.01 per
share (the "Option Shares"), equal to fifty percent (50%) of the quotient
obtained by dividing (A) the Portfolio Value (as defined below) by (B) $8.00;
provided, however, that it is understood that the number of Option Shares
shall never be less than 312,500 nor greater than 500,000, appropriately
adjusted to reflect any stock split, dividend or similar transaction by the
Company occurring after the date hereof.
(a) For purposes of this Call Agreement, the "Portfolio
Value" shall be the sum of the Value (as calculated below), as of Portfolio
Valuation Date, of all of the portfolio company investments (each a
"Portfolio Company," and collectively the "Portfolio Companies") held by MBI
and Xxxxxxx Brothers Investments LP, a Delaware limited partnership ("MBI
LP"), as of the date hereof; provided, however, that if at any time prior to
the Portfolio Valuation Date it is determined, in accordance with Section
2(b) hereof, that the Portfolio Value equals or exceeds $4 million, then the
Portfolio Value shall be fixed at $4 million.
The "Value" of a Portfolio Company, as of a given date, shall be determined
by multiplying the number of shares of common stock, preferred stock,
convertible securities or other equity like securities of a Portfolio Company
held by MBI and MBI LP as of the date hereof by one of the following (in the
following descending order of priority):
(1) in the case of a Portfolio Company Acquisition
(as defined below) and thereafter, the purchase price per share paid for MBI's
or MBI LP's interests in the Portfolio Company or the amount receivable per
share upon distribution by the Portfolio Company of the proceeds from the sale
of its assets, applying principles similar to those set forth in this Section
2(a) for purposes of determining the value of any third party securities
received in payment for the stock or assets;
(2) in the case of an initial public offering of a Portfolio
Company's common stock (an "IPO") and thereafter unless a subsequent
valuation is available as determined pursuant hereto, the price per share at
which the common stock of the Portfolio Company sold in such IPO was priced
by the Portfolio Company and its underwriters (utilizing the common
equivalent of the shares held by MBI or MBI LP);
(3) at anytime after the Portfolio Company's common stock begins
to be publicly traded following an IPO or any other event by which a public
market exists for its securities, by the twenty (20) day trailing average
closing price or closing bid price of the Portfolio Company's common stock on
the principal market on which such shares are traded so long as such shares
have been trading for a period of at least twenty (20) trading days
(utilizing the common equivalent of the shares held by MBI or MBI LP); or
(4) in the case of the consummation of a third party arms-length
equity financing of the Portfolio Company subsequent to the date hereof (a
"Third Party Financing") and thereafter unless a subsequent valuation is
available as determined pursuant hereto, by the effective price per share of
the Portfolio Company's common Stock, preferred stock, convertible securities
or other equity like securities upon consummation of such financing; or
(5) absence the occurrence of one or more of the valuation events
set forth in subclauses (1) (4) above, the Portfolio Value of a Portfolio
Company shall be equal to MBI's or MBI LP's original cost to invest in the
Portfolio Company.
A "Portfolio Company Acquisition" means (i) the acquisition of the Portfolio
Company by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation but excluding any merger effected exclusively for the purpose
of changing the domicile of the Portfolio Company), or (ii) any distribution
by the Portfolio Company, by dividend or otherwise, of any of the
proceeds to the stockholders of the company from a sale of all or
substantially all of the assets of the company.
(b) At anytime prior to the Portfolio Valuation Date when the
Portfolio Value is at least $4 million, KM or TM may send to the Company a
notice setting forth the Portfolio Value (a "Valuation Notice"), and
as soon as practicable after the Portfolio Valuation Date, and if the
Portfolio Value has not been fixed then prior to the Portfolio Valuation
Date, KM or TM shall send to the Company such a notice. If the Company
disputes such valuation, the Company shall have ten (10) days after the date
of delivery of the Valuation Notice to send a notice to KM and TM disputing
the Portfolio Value (the "Dispute Notice"). If the party who sent the
Valuation Notice does not receive a Dispute Notice within such ten (10) day
period, the Portfolio Value shall be fixed at the value set forth in the
Valuation Notice. If a Dispute Notice is received by KM and TM within such
period, the parties shall have an additional ten (10) day period in which to
resolve the dispute. If the parties have not agreed on the Portfolio Value
within such additional ten (10) day period, then the issues in dispute shall
be submitted to a big five firm of independent public accountants selected by
KM and TM (but not in any way associated with any of KM, TM or the Company)
and approved by the Company, which approval shall not be unreasonably
withheld. The determination by such firm of independent public accountants
regarding the Portfolio Value shall be final and binding upon the parties.
3. Exercise of Call Option. The Call Option may be exercised by
Company giving written notice to each of KM and TM of the Company's election
to exercise the option. The notice shall set forth the date of the
Option Closing (as defined below), which date shall be no more than 30 days
after the date of such notice.
4. Option Closing. The closing for the purchase and sale of all
of the MBI Membership Interests upon exercise of the Call Option shall take
place at the offices of the Company on the date specified in the notice of
exercise (the "Option Closing"). At an Option Closing, KM and TM shall each
deliver to the Company a certificate signed by him certifying that each of
the representations and warranties set forth in Section 5 below are true and
correct as of the date of the Option Closing. In consideration therefore,
the Company shall deliver to each of KM and TM (i) a certificate signed by an
authorized officer of the Company certifying that each of the representations
and warranties set forth in Section 6 below are true and correct as of the
date of the Option Closing and (ii) the certificate or certificates
evidencing the Option Shares.
5. Representations and Warranties by KM and TM. KM and TM each
represent and warrant to the Company, severally and not jointly, the
following:
Authorization. This Agreement has been duly executed and
delivered by him and (assuming the due authorization, execution and delivery
by the Company) constitutes the valid, legal and binding obligation of him,
enforceable against him in accordance with its terms, except as may be
limited by bankruptcy, reorganization, fraudulent conveyance, insolvency and
similar laws of general application relating to or affecting the enforcement
of rights of creditors and subject to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
Defaults. Neither the execution and delivery of this
Agreement nor the consummation by him of the transactions contemplated hereby
will (i) result in the creation or imposition of any lien, charge or
encumbrance upon his Membership Interests or (ii) violate any law, statute,
judgment, decree, injunction, order, writ, rule or regulation applicable to
him.
Consents. No authorization, consent, approval, permit,
license of or filing with any governmental authority, any lender or lessor or
any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance by him of this
Agreement.
Title to the Membership Interests. He has good and marketable
title to his Membership Interests being sold, free and clear of all liens,
claims and encumbrances of any nature.
Acquisition of the Option Shares Entirely for Own Account.
The Option Shares to be issued to him upon the exercise of the Call Option
will be acquired for investment for his own account, not as a nominee or
agent, and not with a view to his distribution of any part thereof, and he
has no present intention of selling, granting any participation in, or
otherwise distributing the same. He does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any other person, with respect to any of
the Option Shares received hereunder.
Reliance Upon Representations. He understands that the Option
Shares have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or any other federal or state securities laws,
and, in reliance on his representations set forth in this Agreement, the sale
provided for in this Agreement is exempt from registration under the
Securities Act pursuant to Section 4(2) thereof.
Accredited Investor. He is an "accredited investor" within
the meaning of Rule 501(a) under the Securities Act, who by reason of his
business and financial experience has such knowledge, sophistication and
experience in business and financial matters as to be capable of evaluating
the merits and risks of the investment in the Option Shares and, having had
access to or having been furnished with all such information as it has
considered necessary (including, without limitation, the Company's most
recent Annual Report on Form 10-K (the "10-K") for the fiscal year ending
June 30, 1999), has concluded that he is able to bear those risks.
Knowledge and Experience; Receipt of Information. He has such
knowledge and experience in financial and business matters and has received
all the information it considers necessary or appropriate for deciding
whether to accept the Option Shares in exchange for his Membership Interests
in MBI. He further represents that he has had an opportunity to ask
questions and receive answers from the Company and its officers
and representatives regarding the business, properties, prospects and
financial condition of the Company and to obtain additional information
necessary to verify the accuracy of any information furnished to him or to
which he otherwise had access.
Restricted Securities. He understands that the Option Shares
may not be sold, transferred or otherwise disposed of without registration
under the Securities act or an exemption therefrom. In particular, he is
aware that the Option Shares may not be sold pursuant to Rule 144 promulgated
under the Securities Act unless all of the conditions of that Rule are met.
Legends. Each certificate evidencing the Option Shares shall
be endorsed with the following legend and he covenants that, except to the
extent such restrictions are waived by the Company, he shall not transfer the
Option Shares represented by any such certificate without complying with the
restrictions on transfer described in the legend endorsed on such
certificate:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OR TRANSFER OF
SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH TRANSFER IS
MADE IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT."
6. Representations and Warranties by the Company.
Organization. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of Nevada and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now conducted.
Authorization. The Company has full corporate power and authority
to execute and deliver this Agreement. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporation
action on the part of the Company. This Agreement has been duly executed
and delivered by the Company and (assuming the due authorization, execution
and delivery by KM and TM) constitutes the valid, legal and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by bankruptcy, reorganization,
fraudulent conveyance, insolvency and similar laws of general application
relating to or affecting the enforcement of rights of creditors and subject
to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).
Conflicts; Defaults. Neither the execution and delivery of this
Agreement nor the consummation by the Company of the transactions contemplated
hereby will (i) result in a violation or breach of the Certificate of
Incorporation or the By-laws of the Company or, any agreement, indenture or
other instrument to which the Company is a party or under which the Company is
bound or (ii) violate any law, statute, judgment, decree, injunction, order,
writ, rule or regulation applicable to the Company.
Capitalization. The authorized capital stock of the Company
consists of (i) 60,000,000 shares of common stock, par value $0.01 per
share, of which 10,132,594 shares are issued and outstanding and 1,258,624
are held in treasury as of the date hereof, and (ii) 1,000,000 shares of
preferred stock, par value $1.00 per share, of which no shares are issued
and outstanding as of the date hereof. Other than outstanding stock option
agreements with certain of the Company's directors and employees and certain
outstanding warrants, there are no subscription, option, warrants, calls,
rights, agreements or commitments to which the Company is a party requiring
and there are no convertible securities of the Company outstanding which
upon conversion would require the issuance of any additional shares of the
Company's capital stock.
Litigation. There is no action, suit, or proceeding pending, or to
the knowledge of the officers of the Company threatened, against the Company
or its subsidiaries before any court
or arbitrator or governmental or
regulatory authority which questions the validity of, or threatens to enjoin,
any action taken or to be taken pursuant
to or in connection with this Agreement.
The Option Shares. The Option Shares have been duly authorized by
all necessary corporate action of the
Company, and when issued pursuant to the terms of this Agreement, will be
validly issued and fully paid and non-assessable. The Option Shares will be
free and clear of all pledges, liens and encumbrances, other than
restrictions
on transfer under this Agreement and applicable federal and state securities
laws.
Financial Statements. The Company has previously furnished to KM
and TM the Company's Form 10-K for the fiscal year ended June 30, 1999. The
financial statements fairly present the financial position of the Company
as of the date thereof and the results of operations for the periods covered
thereby, and have been prepared in accordance with GAAP and applied in a manner
consistent with past practice.
Absence of Certain Changes or Events. Since June 30, 1999 there
has been no material adverse change in the business, assets or financial
condition of the Company.
7. Adjustment of Option Shares. In the event the Company shall
subdivide or split its outstanding common stock into a smaller or larger
number of shares or combine its outstanding common stock into a smaller
number of shares, the denominator used in Section 2 to determine the number
of Option Shares that KM and TM shall be entitled to receive upon the Company
exercising its Call Option shall be adjusted so that KM and TM thereafter
shall be entitled to receive upon the Company exercising its Call
Option that number of shares of the Company's common stock which it would
have been entitled to receive had such Call Option been exercised
immediately prior to the happening of such event.
8. Registration Rights. The Company hereby agrees to use its
best efforts to register any issued Option Shares under the Securities Act
immediately following the exercise of a Call Option.
9. Miscellaneous.
Expenses. Each party hereto shall pay all of its own expenses in
connection with the execution of and the transactions contemplated by this
Agreement, including, without limitation, the payment of all transfer
taxes and all fees and expenses of counsel and other advisers.
Reorganization Treatment. Absent a change in law, the Company
agrees that the exchange of any Membership Interests shall be treated by it
as a reorganization under section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Code"). The Company shall not take any action
or fail to take any action that would cause the disqualification of such
exchange as a reorganization under Section 368(a) of the Code.
Termination. This Agreement shall continue until, and shall
terminate immediately upon the earlier of (i) the date a written agreement
of termination is executed by each of the Company, KM and TM or (b) the fourth
anniversary of the date of this Agreement.
Notices. All notices, requests and other communications under
this Agreement shall be in writing (including a writing delivered by facsimile
transmission) and shall be deemed to have been duly given if delivered
personally, or sent by either certified or registered mail, return receipt
requested, postage prepaid by overnight courier guaranteeing next day delivery,
or by telecopier (with telephonic or machine confirmation by the sender,
addressed as follows (or to such other address, including facsimile number,
as shall have been designated by the recipient in writing):
If to KM and/or TM:
Xxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
With required copies to:
Xxxxxxx X. Xxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
If to the Company:
Jackpot Enterprises, Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
Facsimile No.:
With required copies to:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxx 0000
Xxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
and
Xxxx X. Annex
Camhy Karlinsky & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel.: 000-000-0000
Facsimile No.: 000-000-0000
E-mail: xxxxxx@xxxxxx.xxx
All such notices, requests and other communications shall be deemed
to have been received on the date of delivery thereof (if delivered by hand),
on the third business day after the mailing thereof (if mailed), on the
next day after the sending thereof (if by overnight courier) and when receipt
is confirmed as provided above (if telecopied).
Complete Agreement; Amendment. This Agreement constitutes theplete
understanding of the parties with respect to its subject matter and supersedes
any other agreement or understanding relating thereto. No amendment, change or
modification of this Agreement shall be valid, binding or enforceable, unless
the same shall be in writing and signed by each of the parties hereto.
Waiver. No failure or delay on the part of KM, TM or the Company
or any of them in exercising any right, power or privilege hereunder, and no
course of dealing between KM, TM or the Company, shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the simultaneous or later exercise of any other
right, power or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights and remedies which
the parties hereto would otherwise have.
Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
Governing Law; Waivers. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the state of New York
without giving effect to the conflict of laws provisions thereof.
Each of the parties hereto submits to personal jurisdiction and waives any
objection as to venue in the State of New York. Service of process on the
parties in any action arising out of or relating to this Agreement shall be
effective if mailed to the parties in accordance with Section 8(c) hereof.
The parties hereto waive all right to trial by jury in any action or
proceeding to enforce or defend any rights hereunder.
Benefit and Binding Effect; Assignment. All of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. No parties
hereto shall assign (other than by will or bequest) his or its rights
hereunder or any interest herein without the prior written consent of each
of the other parties hereto.
Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
/s/ Xxxxx X. Xxxxxxx
_____________________________
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
_____________________________
Xxxx X. Xxxxxxx
JACKPOT ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxx
______________________________
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
