Exhibit 10.22
PUT AND CALL AGREEMENT
THIS AGREEMENT made as of the 22nd day of December, 1999, by and
between (i) Xxxx X. Xxxxx; Xxxxx X. Xxxxx; Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx
Xxxxxx Trust u/i/t dated July 21, 1998; Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx
Xxxxx Trust u/i/t dated July 21, 1998; Xxxxx Xxxxx Xxxxx, Trustee, Sydney Xxxxxx
Xxxxx Trust u/i/t dated July 21, 1998; and Xxxxx Xxxxx Xxxxx, Trustee, Xxx X.
Xxxxx Trust u/i/t dated July 21, 1998 (each a "Seller" and collectively the
"Sellers"); and (ii) Semele Group Inc., a Delaware corporation (the "Buyer");
WITNESSETH:
WHEREAS, the Sellers and the Buyer have entered into a certain Stock
Purchase Agreement dated as of December 16, 1999 (the "Purchase Agreement"),
providing for the sale by the Sellers and the purchase by the Buyer of 85
percent of the issued and outstanding shares of capital stock of Equis II
Corporation, a Delaware corporation (the "Company");
WHEREAS, following the closing of the purchase and sale contemplated by
the Purchase Agreement, the Sellers will continue to own 15 percent of the
issued and outstanding shares of capital stock of the Company, each Seller
owning the number of shares of Voting Common Stock and Non-Voting Common Stock,
each $.01 par value, of the Company set forth opposite their respective names on
Exhibit A (collectively, the "Shares");
WHEREAS, the Sellers desire to have the ability to sell the Shares to
the Buyer; and
WHEREAS, the Buyer desires to have the ability to purchase the Shares
from the Sellers;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Sellers and the Buyer hereby agree as follows:
1. PUT RIGHTS.
Commencing on the date on which the stockholders of the Buyer shall
have approved the payment by the Buyer to the Sellers of the purchase price
provided for in Section 3 hereof, and continuing for a period of one year
thereafter, Xxxx X. Xxxxx, as representative of the Sellers, may, but only for
the purchase price provided for in Section 3, require the Buyer to purchase all
of the Shares upon the terms contained in this Agreement by giving written
notice thereof to the Buyer in accordance with the terms of Section 8(b) hereof.
If no such approval shall have been obtained by December 31, 2000, then the
rights of Xx. Xxxxx and the Sellers set forth in the preceding sentence shall
terminate. Any such written notice shall state that the Sellers have exercised
their rights under this Section 1. Upon the giving of such notice to the Buyer,
the Sellers shall become and be absolutely and unconditionally obligated to sell
to the Buyer, and the Buyer shall become and be absolutely and unconditionally
obligated to purchase from the Sellers, all of the Shares in accordance with the
terms of this Agreement. The Sellers may exercise the foregoing right only in
respect of all the Shares.
2. CALL RIGHTS.
Commencing on the date on which the stockholders of the Buyer shall
have approved the payment by the Buyer to the Sellers of the purchase price
provided for in Section 3 hereof, and continuing for a period of one year
thereafter, the Buyer may require the Sellers to sell all of the Shares upon the
terms contained in this Agreement, but only for the purchase price provided for
in Section 3, by giving written notice thereof to the Sellers in accordance with
the terms of Section 8(b) hereof. If no such approval shall have been obtained
by [June 30, 2000], then the rights of the Buyer set forth in the preceding
sentence shall terminate. Any such written notice shall state that the Buyer has
exercised its rights under this Section 2. Upon the giving of such notice to the
Sellers, the Sellers shall become and be absolutely and unconditionally
obligated to sell to the Buyer, and the Buyer shall become and be absolutely and
unconditionally obligated to purchase from the Sellers, all of the Shares in
accordance with the terms of this Agreement. The Buyer may exercise the
foregoing right only in respect of all the Shares.
3. PURCHASE PRICE.
The purchase price for the Shares shall be 510,000 shares of the Common
Stock, $.10 par value, of the Buyer.
4. PAYMENT OF PURCHASE PRICE.
The Buyer, within 30 days after (a) receiving notice from the Sellers
in accordance with Section 1 hereof, or (b) giving notice to the Sellers in
accordance with Section 2 hereof, shall pay to the Sellers the entire amount of
the purchase price for the Shares by delivering to the Sellers certificates
evidencing shares of Common Stock of the Buyer in the names and in the amounts
shown on Exhibit B within such 30-day period.
5. TRANSFER OF THE SHARES TO THE BUYER.
Simultaneously with the payment of the purchase price to the Sellers in
accordance with the provisions of Section 4 above, the Sellers shall deliver to
the Buyer the certificates representing the Shares purchased, duly endorsed for
transfer to the Company or accompanied by one or more duly executed stock
powers, and shall take all such further action as may then be necessary to
transfer title to the Shares to the Buyer free and clear of all liens,
encumbrances and interests of others except those shown on Exhibit C.
6. RESTRICTIONS.
The Sellers shall not sell, assign, transfer, pledge, or dispose of any
or all of their respective Shares except as provided for herein or as otherwise
agreed to in writing by all the parties hereto. Each certificate representing
Shares held by the Sellers shall bear a legend substantially as follows:
"The shares of stock represented by this certificate are subject
to restrictions on transfer as set forth in a Put and Call
Agreement dated December 22, 1999, between the Sellers
identified therein and Semele Group Inc. No transfer of any
shares represented
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by this certificate shall be valid unless made in accordance
with the provisions of such Agreement."
7. OTHER PROVISIONS.
(a) AMENDMENT. This Agreement may not be amended, modified or
revoked in whole or in part except by a writing signed by each of the parties
hereto.
(b) NOTICES. All notices given shall be in writing and shall
become effective when received. Notices shall be deemed to have been duly
received if delivered by hand or by overnight delivery service or mailed by
certified or registered mail, return receipt, requested, postage prepaid, to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section):
If to the Sellers:
Xxxx X. Xxxxx
Equis Financial Group Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxx Peabody LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxxx Xxxx
and, if to the Buyer:
Semele Group Inc.
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
with a copy to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
(c) BINDING AGREEMENT; GOVERNING LAW. This Agreement shall be
binding upon and inure to the benefit of the Sellers and the Buyer and their
respective heirs, successors, assigns and legal representatives. This Agreement
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument as of the date first above written.
THE SELLERS: SEMELE GROUP INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------------- ---------------------------
Xxxx X. Xxxxx Xxxx X. Xxxxxx, Chief Financial
Officer
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx
Xxxxxx Trust u/i/t dated July 21, 1998
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx
Xxxxx Trust u/i/t dated July 21, 1998
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Sydney
Xxxxxx Xxxxx Trust u/i/t dated July 21, 1998
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxx X.
Xxxxx Trust u/i/t dated July 21, 1998
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EXHIBIT A
NUMBER OF SHARES
NAME OWNED
VOTING NON-VOTING
Xxxx X. Xxxxx 68 186
Xxxxx X. Xxxxx 8 144
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx Xxxxxx Xxxxx Xxxx 00
u/i/t dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx Xxxxx Trust None 11
u/i/t dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Sydney Xxxxxx Xxxxx None 11
Trust u/i/t dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Xxx X. Xxxxx Trust NONE 11
u/i/t dated July 21, 1998
TOTALS 00 000
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EXHIBIT B
NUMBER OF
NAME PURCHASE PRICE SHARES
Xxxx X. Xxxxx 287,300
Xxxxx X. Xxxxx 171,700
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx Xxxxxx Trust u/i/t 12,750
dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx Xxxxx Trust u/i/t 12,750
dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Sydney Xxxxxx Xxxxx Trust 12,750
u/i/t dated July 21, 1998
Xxxxx Xxxxx Xxxxx, Trustee, Xxx X. Xxxxx Trust u/i/t 12,750
dated July 21, 1998
TOTAL 510,000
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EXHIBIT C
LIENS AND ENCUMBRANCES ON SHARES
The Shares referred to in the accompanying Put and Call Agreement, which are to
be purchased by the Buyer, are pledged to Fleet Bank, N.A., a national banking
association having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Bank") as partial collateral for that certain loan agreement between Equis II
Corporation, the Bank and other interested parties dated July 17, 1997, as
amended (the "Acquisition Credit Agreement"), together with related agreements.
The Shares are also subject to an irrevocable proxy giving the Bank the right to
vote the Shares after an event of default under the Acquisition Credit
Agreement.
At September 30, 1999, the outstanding principal balance of indebtedness under
the Acquisition Credit Agreement was $19,540,000.
