PUT/CALL AGREEMENT
THIS PUT/CALL AGREEMENT is made this 12th day of August 1999 by and between
Interactive Flight Technologies, Inc., a Delaware corporation (the "Company")
and Xxxxxx Xxxxxx ("Holder").
W I T N E S S E T H:
WHEREAS, Holder is the owner of the number of shares of the Class A Common
Stock of the Company (the "Shares") set forth on the signature page of this
Agreement;
WHEREAS, Company desires to grant to Holder the option to put the Shares to
the Company at a price of $3.75 per Share at any time in the ten day period
ending January 10, 2000; and
WHEREAS, Holder desires to grant to Company the option to call the Shares
at a price of $4.50 per Share at any time in the ten day period ending January
10, 2000.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, each intending
to be legally bound hereby, agree as follows:
1. Put/Call Options.
(a) The Company hereby grants to Holder the right and option to require
Company to purchase any or all of the Shares on the terms and subject to the
conditions hereinafter set forth in this Agreement (the "Put Option").
(b) Holder hereby grants to Company the right and option to purchase all
or any of the Shares held by Holder, on the terms and subject to the conditions
hereinafter set forth in this Agreement (the "Call Option").
2. Price.
(a) The purchase price to be paid, if the Put Option is exercised, shall
be Three Dollars and Seventy-Five Cents ($3.75) per Share (the "Put Option
Price"), which shall be paid at the Closing (as hereinafter defined) in the
manner provided in this Agreement.
(b) The purchase price to be paid, if the Call Option is exercised,
shall be Four Dollars and Fifty Cents ($4.50) per Share (the "Call Option
Price"), which shall be paid at the Closing in the manner provided in this
Agreement.
3. Exercise of Put Option. The following provisions shall apply to exercise
of the Put Option:
(a) Holder shall exercise the Put Option by sending a notice of election
(the "Put Notice of Election") to the Company in the form attached hereto and
incorporated herein by reference. The Put Notice of Election shall be in
writing, shall be sent to the Company at the address and in the manner set forth
in subparagraph 10(c) hereof (or to such other address as shall then be
applicable if such address has been changed in the manner set forth in such
subparagraph), and shall contain the information about the Closing set forth in
subparagraph 9(a) hereof.
(b) If exercised, the Put Option may be exercised as to some or all of
the Shares.
(c) The Put Option may be exercised only during the period between 12:01
a.m. E.S.T. January 1, 2000 and 5:00 p.m. E.S.T. January 10, 2000 (the
"Effective Period"). The date and time of the exercise of the Put Option shall
be that date and time when the Put Notice of Election is actually received by
the Company.
(d) Payment for Shares shall be made by certified check payable to the
order of Holder, or at the option of Holder, by wire transfer of immediately
available funds to the bank account set forth on the Put Notice of Election.
4. Exercise of Call Option. The following provisions shall apply to
exercise of the Call Option:
(a) The Company shall exercise the Call Option by sending a notice of
election (the "Call Notice of Election") to the Holder in the form attached
hereto and incorporated herein by reference. The Call Notice of Election shall
be in writing, shall be sent to the Holder at the address and in the manner set
forth in subparagraph 10(c) hereof (or to such other address as shall then be
applicable if such address has been changed in the manner set forth in such
subparagraph), and shall contain the information about the Closing set forth in
subparagraph 9(a) hereof.
(b) If exercised, the Call Option may be exercised as to some or all of
the Shares.
(c) The Call Option may be exercised only during the Effective Period.
The date and time of the exercise of the Call Option shall be that date and time
when the Call Notice of Election is actually received by the Holder.
(d) Payment for Shares shall be made by certified or bank cashier's
check payable to the order of Holder.
(e) In the event that Holder exercises the Put Option and the Company
exercises the Call Option, then the Call Option exercise shall be void ab initio
and Closing shall be held pursuant to the Put Option.
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5. Term. Except for any obligations arising under this Agreement as a
result of the proper exercise of the Call Option or the Put Option (which
obligations shall survive termination of this Agreement), this Agreement shall
terminate at the end of the Effective Period.
6. Change or Exchange of Capital Stock.
(a) In the event that the outstanding shares of Class A Common Stock of
the Company shall be changed into or exchanged for a different number or kind of
shares of capital stock of the Company or shall be changed into or exchanged for
a different number or kind of shares of capital stock or other securities of the
Company or of another company (whether by reason of merger, consolidation,
recapitalization, reclassification, split-up, or otherwise), then there shall be
substituted for each remaining Share not acquired by exercise of either the Put
Option or the Call Option prior to the record date for such merger,
consolidation, recapitalization, reclassification, split-up, or otherwise, the
number and kind of shares of capital stock or other securities into which each
outstanding share of Class A Common Stock of the Company shall be so changed or
for which each such share of capital stock shall be so exchanged. In the event
that there shall be any such change or exchange, then (i) Holder shall be
entitled to sell to the Company pursuant to the Put Option all of such capital
stock and other securities into which each Share shall have been changed or for
which it shall have been exchanged for the Put Option Price which would have
been required to be paid for such Share assuming there had been no such change
or exchange, and otherwise in accordance with the terms of this Agreement; and
(ii) the Company shall be entitled to purchase from the Holder pursuant to the
Call Option all of such capital stock and other securities into which each Share
shall have been changed or for which it shall have been exchanged for the Call
Option Price which would have been required to be paid for such Share assuming
there had been no such change or exchange, and otherwise in accordance with the
terms of this Agreement.
(b) In the event that the outstanding Shares shall be subdivided into a
greater or combined into a lesser number of such shares, whether by stock
dividend, stock split or combination of shares, the Put Option Price and the
Call Option Price shall be proportionately decreased or increased, as the case
may be, and the number of remaining Shares (those not acquired by exercise of
either the Put or Call Option prior to the record date of such stock dividend,
stock split, or combination of shares) subject to the Put or Call Option shall
be proportionately increased or decreased as the case may be, so as
appropriately to reflect such subdivision or combination, effective immediately
upon the effectiveness of such subdivision or combination.
(c) No such adjustment shall be made, however, by reason of the issuance
of shares of common stock of the Company for cash, property, or services; by way
of stock options, stock warrants, subscription rights; or otherwise.
7. Representations and Warranties of Company. The Company hereby represents
and warrants that this Agreement constitutes the valid and binding obligation of
the Company, and is enforceable against it in accordance with its terms, except
to the extent that the enforcement thereof is limited by bankruptcy,
reorganization, insolvency, moratorium, or other similar laws or orders
affecting the enforcement of creditors' rights generally, or by equitable
principles.
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8. Transfers. The Put Option is not transferable by Holder (otherwise than
(if Holder is an individual) by will or pursuant to the laws of descent and
distribution in the event of Holder`s death, in which event the Put Option may
be exercised by the heirs or legal representatives of Holder). Any attempt at
assignment, transfer, pledge or disposition of the Put Option contrary to the
provisions hereof or the levy of any execution, attachment or similar process
upon the Put Option shall be null and void and without force or effect. Any
exercise of the Put Option by a person other than Holder shall be accompanied by
appropriate proofs, satisfactory in form and substance to the Company, of the
right of each person to exercise the Put Option.
9. Closing.
(a) The Closing shall be held at a date and time to be selected by
Holder or by the Company in the Put Notice of Election or Call Notice of
Election, respectively; provided, however, that the date specified in the Put
Notice of Election or Call Notice of Election shall not be less than fourteen
(14) nor more than sixty (60) days after the date of such Put Notice of Election
or Call Notice of Election, as the case may be.
(b) Closing shall be held at the chief executive offices of the Company,
or such other place as shall be agreed upon by the parties.
(c) At Closing, the Company shall deliver or cause to be delivered to
Holder the Put Option Price per Share or Call Option Price per Share, as
applicable, for all of the Shares to be purchased by Company pursuant to the Put
Notice of Election or Call Notice of Election and Holder shall deliver to the
Company all of the Shares (or other securities) being purchased duly endorsed
for transfer or with an executed stock power attached, in either such case with
signature guaranteed by a member of the Stock Transfer Agents' Medallion
Program.
(d) If the Company defaults in the payment of any sums required to be
paid pursuant to a valid exercise of the Put Option or of the Call Option, then
all overdue amounts shall bear interest until paid from the date of closing as
specified in the Put Notice of Election or Call Notice of Election, as the case
may be, at a rate equal to the lower of (i) (2%) two percent per month (prorated
for any partial month) or (ii) the maximum rate allowable by applicable law.
10. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning
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limitations of actions), shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, notwithstanding any
conflict-of-laws doctrines of such jurisdiction to the contrary, and without the
aid of any canon, custom or rule of law requiring construction against the
draftsman.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when personally delivered or
when deposited in the United States mails, registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
(i) If to Holder:
2274 E. Yunsoo
000 Xxx Xxxxx
Xxxxxx, XX 00000-0000
(ii) If to Company:
Interactive Flight Technologies, Inc.
000 X 00xx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxx
with a copy, given in the manner prescribed above, to:
Mesirov Xxxxxx Xxxxx Xxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esquire
In addition, notice by mail shall be by air mail if posted outside of the
continental United States. Either party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this subparagraph (c) for the
giving of notice.
(d) Binding Nature of Agreement; No Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns, except that neither
party may assign or transfer its rights nor delegate its obligations under this
Agreement without the prior written consent of the other party hereto.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
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(f) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(g) Paragraph Headings. The Paragraph and subparagraph headings in this
Agreement have been inserted for convenience of reference only; they form no
part of this Agreement and shall not affect its interpretation.
(h) Gender, Etc. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
(i) Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and Holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or Holiday, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or Holiday. For purposes of this subparagraph (i), the
term "Holiday" shall mean a day, other than a Saturday or Sunday, on which
national banks with branches in the Commonwealth of Pennsylvania are or may
elect to be closed.
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(j) Currency. All monetary amounts referred to in this Agreement shall
be and be deemed to be references to lawful currency of the United States of
America.
IN WITNESS WHEREOF, the parties have executed this Agreement the date first
above written.
ATTEST: INTERACTIVE FLIGHT TECHNOLOGIES, INC.
----------------------------- -------------------------------------
Secretary Name:
Title:
WITNESS: XXXXXX XXXXXX
----------------------------- -------------------------------------
Shares of Class A Common Stock of the Company 32,857
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PUT NOTICE OF ELECTION
The undersigned and Interactive Flight Technologies, Inc. (the "Company") are
parties to that certain Put/Call Agreement dated August 12, 1999. Pursuant to
the terms thereof, the undersigned hereby exercises his, her or its option to
require the Company to purchase the number of shares of the Class A common stock
of the Company, (the "Shares") set forth below. Closing hereunder shall be held
at the chief executive offices of the Company at _____ _.m. local time, on
__________ ___, 2000. The undersigned elects to have the purchase price paid by
wire transfer of immediately available funds to the following bank account:
Bank Name: ________________________________
Branch (if applicable): ___________________
Bank Location: ____________________________
Bank Routing Number: _____________________
For Credit to Account No. _________________
Name of Account: __________________________
(If the foregoing bank information is not included in this Notice of Election,
the undersigned agrees to accept payment by delivery of a certified or bank
cashier's check payable to the order of the undersigned.)
The undersigned represents and acknowledges that (i) the undersigned knows, or
has had the opportunity to acquire, all information concerning the business,
affairs, financial condition and prospects of the Company which the undersigned
deems relevant to making a fully informed decision regarding the consummation of
the transactions contemplated hereby and (ii) he, she, or it has been supplied
with copies of the Company's latest Annual Report on Form 10-K (or 10-KSB, as
the case may be), the Company's latest quarterly report on Form 10-Q (or 10-QSB,
as the case may be), Company's latest proxy statement, and Company's latest
Annual Report to Stockholders.
Date:
------------------------------ -----------------------------------
Name:
Address:
Number of Shares:
--------------------------
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CALL NOTICE OF ELECTION
Interactive Flight Technologies, Inc. (the "Company") and _________________
("Holder") are parties to that certain Put/Call Agreement dated August 12, 1999.
Pursuant to the terms thereof, the Company hereby exercises its option to
purchase ____________ shares of the Class A common stock of the Company (the
"Shares") owned by Holder. Closing hereunder shall be held at the chief
executive offices of the Company at _____ _.m. local time, on __________ ___,
2000.
INTERACTIVE FLIGHT TECHNOLOGIES, INC.
Date: BY:
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