AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (this "Agreement"), dated
September 26, 1997, among FABRI-CENTERS OF AMERICA, INC., an Ohio corporation
(the "Company"), XXXXX XXXXXXXX, ("Xxxxx Xxxxxxxx") and XXXXXX XXXXXXXXX and
XXXX XXXXXXXXX ("Xxxxxx and Xxxx Xxxxxxxxx"), amends and restates that
certain Agreement among the Company, Xxxxxx and Xxxxx Xxxxxxxx and Xxxxxx and
Xxxx Xxxxxxxxx dated June 2, 1987 relating to the sale or other disposition
of shares of Common Stock, without par value, of the Company then owned or
thereafter acquired by Xxxxx Xxxxxxxx or Xxxxxx and Xxxx Xxxxxxxxx (the
"Shares").
IN CONSIDERATION OF good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties agree as follows:
1. THE SHARES. Except as provided in Section 10, the Shares
covered by this Agreement shall be limited to those common shares owned on
June 2, 1987 or thereafter acquired by Xxxxx Xxxxxxxx or Xxxxxx or Xxxx
Xxxxxxxxx and which were reclassified on August 2, 1995 as Class A voting
shares of Common Stock, without par value.
2. PERMITTED TRANSFERS.
(a) DEFINITIONS. For purposes of this Section 2 and the remaining
provisions of this Agreement the following terms shall have the following
meanings:
(1) "Rosskamms" shall refer to Xxxxx Xxxxxxxx, the lineal
descendants from time to time living of Xxxxx Xxxxxxxx, the spouse of any
lineal descendent of
Xxxxx Xxxxxxxx, and the executor, administrator or personal
representative of any of the foregoing persons.
(2) "Zimmermans" shall refer to Xxxxxx and Xxxx Xxxxxxxxx, the
lineal decedents from time to time living of Xxxxxx and Xxxx Xxxxxxxxx,
the spouse of any lineal decedent of Xxxxxx and Xxxx Xxxxxxxxx, and the
executor, administrator or personal representative of any of the foregoing
persons.
(3) "Permitted Holder" shall refer to (i) any of the Rosskamms or
Zimmermans, (ii) a trustee of a trust all of the beneficial interests of
which are held by one or more of the Rosskamms or Zimmermans, and (iii) a
general or limited partnership, limited liability company, corporation or
other entity all of the equity and voting interests of which are held by
or for the benefit of one or more of the Rosskamms or Zimmermans or a
Permitted Holder. For purposes of Section 3, a Permitted Holder described
in clause (iii) of the preceding sentence shall be deemed to have disposed
of all Shares held by such Permitted Holder if a person, other than a
Permitted Holder, directly holds an equity interest or has the right to
vote a voting interest of such Permitted Holder.
(b) SALES OF LIMITED NUMBER OF SHARES. All of the Rosskamms and
their Permitted Holders, in the aggregate on the one hand, and all of the
Zimmermans and their Permitted Holders, in the aggregate on the other hand,
are free to sell up
-2-
to 200,000 Shares (as adjusted for stock splits, stock dividends or similar
recapitalization) in each calendar year during the term of this Agreement,
but not more than 100,000 shares may be sold in any 180-day period. Any
purchasers of Shares sold under this Section 2(b) will take and hold the
Shares free of the right of first refusal in Section 3.
(c) CHARITABLE CONTRIBUTIONS. The Rosskamms and their Permitted
Holders and the Zimmermans and their Permitted Holders are each entitled from
time to time to make gifts of Shares that qualify as charitable contributions
for federal income tax purposes, provided that the aggregate market prices,
at the time of the respective gifts, of the Shares given by any of them
during any calendar year during the term of this Agreement does not exceed
$250,000, which amount shall be increased by 5% annually on January 1 of every
year this Agreement is in effect over the amount applicable to the
immediately preceding year. Any recipients of Shares given under this Section
2(c) will take and hold the Shares free of the right of first refusal in
Section 3.
(d) TRANSFERS TO A PERMITTED HOLDER. Any Permitted Holder is
entitled from time to time to transfer an unlimited number of Shares to any
other Permitted Holder. Any Permitted Holder who receives Shares under this
Section 2(d) will take and hold the Shares subject to the right of first
refusal in Section 3.
(e) TRANSFERS BY ESTATE TO RECIPIENTS OTHER THAN A PERMITTED
HOLDER. The Rosskamms and their Permitted Holders and the Zimmermans and
their Permitted Holders are each entitled
-3-
from time to time to give, bequeath, or transfer by testate or intestate
succession an unlimited number of Shares to any Permitted Holder. An
executor, administrator, or personal representative who receives Shares as
part of the estate of any of the foregoing persons, whether by testate or
intestate succession, is entitled to transfer the Shares to any Permitted
Holder. Any Permitted Holder who receives Shares under this Section 2(e) will
take and hold the Shares subject to the right of first refusal in Section 3.
An executor, administrator, or personal representative who receives Shares as
part of the estate of any of the Rosskamms, their Permitted Holders or any of
the Zimmermans or their Permitted Holders, whether by testate or intestate
succession, may transfer the Shares to recipients other than a Permitted
Holder only after the proper parties are afforded the right of first refusal
set forth in Section 3.
(f) SALE TO THE ZIMMERMANS OR THE COMPANY. Any of the Rosskamms
or their Permitted Holders, or any charity receiving Shares as provided in
Section 2(c), is entitled from time to time to sell an unlimited number of
Shares to the Zimmermans or, with the consent of either Xxxxxx or Xxxx
Xxxxxxxxx (or, if both are then deceased or otherwise incapable of providing
such consent, the oldest then living lineal descendent of Xxxxxx and Xxxx
Xxxxxxxxx), to the Company at prices and on other terms negotiated by the
parties. The Zimmermans or the Company will take and hold any Shares
purchased under this Section 2(f) free of the right of first refusal in
Section 3.
-4-
(g) SALE TO THE ROSSKAMMS OR THE COMPANY. Any of the Zimmermans
or their Permitted Holders, or any charity receiving Shares as provided in
Section 2(c), is entitled from time to time to sell an unlimited number of
Shares to the Rosskamms or, with the consent of Xxxxx Xxxxxxxx (or, if she is
then deceased or otherwise incapable of providing such consent, the oldest
then living lineal descendent of Xxxxx Xxxxxxxx), to the Company at prices
and on other terms negotiated by the parties. The Rosskamms and the Company
will take and hold any shares purchased under this Section 2(g) free of the
right of first refusal in Section 3.
3. RIGHT OF FIRST REFUSAL. Except for transfers expressly
permitted under Section 2, Xxxxxx and Xxxx Xxxxxxxxx and the Company will
have a right of first refusal, upon the terms and conditions set forth in
this Section 3, with respect to any disposition, whether voluntary or by
operation of law, of Shares by the Rosskamms or their Permitted Holders, and
conversely, Xxxxx Xxxxxxxx and the Company will have a right of first
refusal, upon the terms and conditions set forth in this Section 3, with
respect to any disposition, whether voluntary or by operation of law, of
Shares by the Zimmermans or their Permitted Holders. In each case the party
proposing to dispose of shares is the "Transferor," and the party holding the
right of first refusal is the "Offeree."
(a) NOTICE OF PROPOSED DISPOSITION. Whenever a Transferor
proposes to dispose of all or part of his or her Shares (except for transfers
expressly permitted under Section 2), he or she must offer the Shares to the
Offeree and
-5-
the Company, in writing, setting forth the number of Shares to be disposed
of, and the nature of the proposed disposition.
(b) EXERCISE OF RIGHT; PURCHASE PRICE AND TERMS. For a period of
20 days after delivery of the notice of the proposed disposition, the Offeree
will have the right to purchase all or any portion of the Shares to be
disposed of, and the Company will have the right to purchase any of the
Shares that the Offeree elects not to purchase; however, the right of the
Offeree and the Company to purchase these Shares is conditioned upon the
purchase, by the Offeree, the Company, or both, of all (but not less than
all) of the Shares to be disposed of. The purchase price will be the Market
Price of the Shares, as defined in Section 4, payable in cash upon completion
of the purchase. The Offeree or the Company must deliver written notice to
the Transferor of the election to exercise the right of first refusal within
the 20-day period, and the purchase of the Shares must be completed within 30
days after this notice is delivered.
(c) FAILURE TO EXERCISE; COMPLETION OF PROPOSED DISPOSITION. If
the Offeree or the Company do not exercise the right of first refusal and
purchase the Shares in accordance with Section 3(b), the Transferor may
dispose of the Shares, provided, however, that the proposed disposition must
be completed within 60 days after the expiration of the 20-day period within
which the Offeree and the Company were entitled to exercise the right of
first refusal. Upon compliance with all of the requirements of this Section
3, including the completion of the disposition within the 60-day period, the
purchaser or recipient may acquire the Shares free of the restrictions set
forth in this Agreement,
-6-
including the right of first refusal in this Section 3. If the proposed
disposition is not completed within the 60-day period or any of the other
requirements of this Section 3 are not met or waived in writing by the
Offeree and the Company, the disposition may not be completed and the Shares
will remain subject to the restrictions set forth in this Agreement, but the
Transferor may at any time give a new notice of proposed disposition.
4. MARKET PRICE. The "Market Price" of the Shares will be an
amount equal to the product obtained by multiplying the number of Shares to
be purchased times the average, over the period of 20 consecutive days on
which trading in Class A voting Common Shares, without par value, of the
Company is reported ending 10 calendar days prior to the date on which the
Rosskamms or Zimmermans or the Company deliver notice of the exercise of the
right (the "20 trading days"), of: (i) the closing price of such shares on
each of the 20 trading days as reported by the National Association of
Securities Dealers and Instinet for New York Stock Exchange Composite
Transactions, or (ii), if such shares are no longer traded on a national
securities exchange but are traded in the NASDAQ over-the-counter markets for
national market issues, the last sales price of such shares on each of the 20
trading days as quoted in the NASDAQ National Market System, or (iii), if
such shares are not traded on a national securities exchange or in the NASDAQ
over-the-counter markets for national market issues, the mean between the
representative bid and asked prices for such shares on each of the 20 trading
days as quoted in NASDAQ or another generally recognized reporting system.
-7-
5. BINDING EFFECT; EXECUTION OF COUNTERPARTS BY RECIPIENTS;
ENFORCEMENT. This Agreement will bind the Company, its successors and
assigns, and the Zimmermans, the Rosskamms, and any Permitted Holder, and
their successors, assigns, executors, administrators, and personal
representatives. The Rosskamms, Zimmermans or the Company may, in their or
its discretion, require any Permitted Holder, as a condition to the transfer
of any Shares to the Permitted Holder, to sign a counterpart of this
Agreement or other instrument to confirm that the Permitted Holder will take
and hold the Shares subject to the right of first refusal in Section 3. The
failure by any Permitted Holder to sign a counterpart of this Agreement or
other instrument will not, however, relieve the Permitted Holder of his, her
or its obligation to comply with Section 3. The Rosskamms and Zimmermans will
monitor and keep track of sales permitted under Section 2(b). This Agreement
is for the benefit of and may be enforced by the Company, the Rosskamms, the
Zimmermans, and any Permitted Holder and the successors, assigns, executors,
administrators, and personal representatives of any of the foregoing persons.
6. LEGEND ON SHARES. As soon as practicable following the
execution of this Agreement, Xxxxx Xxxxxxxx and Xxxxxx and Xxxx Xxxxxxxxx
will deliver to Xxxxxx Trust and Savings Bank, as transfer agent,
certificates for all of the Class A voting Common Shares owned by them. The
transfer agent will promptly return the certificates to the respective
shareholders with the following legend inscribed on them:
-8-
The sale or other disposition of
the shares represented by this
certificate is subject to
restrictions set forth in an
Amended Agreement, dated
_______________, 1997, among Fabri-
Centers of America, Inc., Xxxxx
Xxxxxxxx, Xxxxxx Xxxxxxxxx, and
Xxxx Xxxxxxxxx. Certain
transferees of these shares will
take and hold the shares subject to
the restrictions set forth in the
Agreement. Fabri-Centers of
America, Inc. will mail to the
shareholder a copy of this
Agreement without charge within
five days after receipt of written
request therefor.
In addition, the Rosskamms consent to the placing of this legend on (i)
certificates issued to them for any Shares acquired by them after the date of
this Agreement and (ii) certificates for any Shares issued to a Permitted
Holder.
7. NOTICES. Any notices or other communications required or
permitted to be delivered under this Agreement will be deemed to be delivered
when hand delivered or received by the addressee through the United States
mail (registered or certified mail, return receipt requested) and addressed
as follows:
(i) To the Company at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000.
(ii) To Xxxxx Xxxxxxxx at 0000 Xxxxx Xxxxxxx Xxxxx, Xxx. 0, X-X,
Xxxxxxxxx, Xxxx 00000 or at the address of any then current
residence known to the Company or the Zimmermans.
(iii) To Xxxxxx Xxxxxxxxx or Xxxx Xxxxxxxxx at 0000 Xxxxxxxx Xxxx,
Xxxxxx Xxxxxxx, Xxxx 00000 or at the address of any then current
residence known to the Company or the Rosskamms.
Any part may change the address to which notices are to be given by notifying
the other parties of the change.
-9-
8. TERM. The term of this Agreement will extend from the date
first written above to the date fifteen years after the death of Xxxxx
Xxxxxxxx, or if earlier, fifteen years after the death of the survivor of
Xxxxxx and Xxxx Xxxxxxxxx.
9. MISCELLANEOUS. The rights of any party under this Agreement
may not be assigned without the prior written consent of all of the other
parties. This Agreement will be interpreted and enforced in accordance with
the laws of the State of Ohio; constitutes the entire agreement among the
parties on its subject matter; may be executed in two or more counterparts;
and may be amended only in writing signed by all of the parties.
10. CLASS B NON-VOTING COMMON SHARES. The parties recognize that
excessive sales of Shares, whether Class A voting shares or Class B
non-voting shares, by the Rosskamms or the Zimmermans might adversely affect
the market for the publicly traded Shares. Accordingly, the parties intend
that not more than 100,000 Class B non-voting Shares be sold in any 60-day
period by the Rosskamms or the Zimmermans. If either the Rosskamms or the
Zimmermans, or any one of them, should conclude that it is necessary for any
reason to sell more than 100,000 such Shares in any 60-day period, then the
Company, but only the Company, shall have the right of first refusal to
purchase the number of such Shares proposed to be sold in excess of 100,000
as provided in Section 3 and at a price established as provided in Section 4
(except that for the purpose of this Section, the phrase Class A voting
Common Shares shall be changed to read Class B non-voting Common Shares).
Except as otherwise provided in this Section, the Rosskamms and the
Zimmermans may freely
-10-
dispose of their respective Class B non-voting Shares and without regard to
this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement on the
date first written above.
FABRI-CENTERS OF AMERICA, INC.
By /s/ Illegible /s/ Xxxxxx Xxxxxxxxx
-------------------------------- --------------------------------
Title: CFO Xxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxxx
---------------------------------- ----------------------------------
Xxxxx Xxxxxxxx Xxxx Xxxxxxxxx
