STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made this 21 day of December 2000, by
and between Xxxxx Xxxxxxx (hereinafter "Xxxxxxx") and Unico American
Corporation, a Nevada corporation (hereinafter "Company"), in reference to the
following facts:
WHEREAS, Xxxxxxx is employed by Company as Vice President and General
Counsel pursuant to the Employment Agreement dated November 27, 1996
(hereinafter "Original Employment Agreement") and is a Director of the Company;
WHEREAS, pursuant to the Original Employment Agreement, Xxxxxxx'x term
of employment is until December 1, 2001;
WHEREAS, the Parties have agreed to terminate the Original Employment
Agreement and enter into a New Employment Agreement, which New Employment
Agreement ?is being executed concurrently herewith;
WHEREAS, the parties hereto are concurrently executing an Agreement to
Modify Employment and General Release of All Claims (the "Release");
WHEREAS, Xxxxxxx is the owner of Sixty Five Thousand (65,000) shares of
stock in the Company; and
WHEREAS, Xxxxxxx desires to sell to the Company, and the Company
desires to purchase from Xxxxxxx, on the terms and conditions set forth herein,
Xxxxxxx`s Sixty Five Thousand (65,000) shares of stock in the Company;
THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Purchase of Stock.
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The Company hereby agrees to purchase from Xxxxxxx, and Xxxxxxx hereby
agrees to sell to the Company, Xxxxxxx`s Sixty Five Thousand (65,000) shares of
stock in the Company at a price of $6.50 per share.
2. No Right of Revocation
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The Release which is being executed concurrently herewith provides that
Xxxxxxx shall have a period of seven (7) days following the execution of the
Release to revoke it and it shall not become effective or enforceable until the
revocation period has expired. In the event that the Release is revoked within
the aforementioned seven (7) day period, then, at the option of the Company, the
Company may elect to purchase all or such part of Xxxxxxx'x Sixty Five Thousand
(65,000) shares of stock in the Company as the Company so chooses.
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In the event that the Release is revoked within the aforementioned
seven (7) day period, than the aforementioned election to purchase by the
Company shall be in a writing to Xxxxxxx notifying him of the Company`s
election. The writing is effective only if it is hand-delivered or mailed to
Xxxxxxx within five (5) business days of the Company's receipt of notice of
Xxxxxxx`s revocation of the Release. If the writing is mailed to Xxxxxxx, it
shall be addressed to his last known home address and it shall be deemed to be
timely if it was deposited in the United States mail, by first class postage,
within the aforementioned five (5) day period.
In the event that the Release is revoked within the aforementioned
seven (7) day period and the Company does not timely give Xxxxxxx the notice of
election to purchase as provided herein, than the Company will be deemed to have
elected to not purchase any of Xxxxxxx'x Sixty Five Thousand (65,000) shares of
stock in the Company. Xxxxxxx does not have any right whatsoever to revoke this
Stock Purchase Agreement. Whether or not the Company makes any election as
provided in this Paragraph, all other terms and conditions of this Stock
Purchase Agreement shall remain in full force and effect.
3. Payment to Xxxxxxx and Surrender of Stock Certificates.
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All of the shares of stock being sold by Xxxxxxx to the Company
pursuant to this Stock Purchase Agreement shall be delivered to the Company,
free and clear of all liens and encumbrances, no later than March 21, 2001. If
Xxxxxxx so desires, he may sell the stock and transfer the stock certificates to
the Company in increments of no less than Five Thousand (5,000) shares at any
time during the aforementioned twelve (12) week period, except that the last
sale and transfer may be in less than a Five Thousand (5,000) share increment.
For each sale and transfer, Xxxxxxx and the Company shall attend a closing, in
the offices of the Company at which:
a. The Company will pay Xxxxxxx, by Company check, the sum of
Six Dollars and Fifty Cents ($6.50)for each share of Xxxxxxx`s stock in
the Company being sold to the Company; and
x. Xxxxxxx will surrender to the Company stock certificates
evidencing the number of shares of his stock being purchased by the
Company.
4. Failure to Deliver.
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In the event that Xxxxxxx cannot or does not timely deliver
all of the stock certificates to the Company which are being purchased
hereunder, he will be deemed to be in material default of this agreement,
entitling the Company to exercise any and all remedies available to it in law
and in equity, including but not limited to, damages and/or rescission.
5. General Release.
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Xxxxxxx releases the Company as follows:
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a. Except for the obligations specifically referred to in this
Stock Purchase Agreement, the New Employment Agreement and the Release,
Xxxxxxx hereby knowingly and voluntarily waives, releases, acquits and
forever discharges the Company, and all of its affiliates, parents,
subsidiaries and their respective agents, officers, directors,
shareholders and employees from any liability, action, suit, claim,
damages, judgment, known or unknown, liquidated or unliquidated, fixed
or contingent, express or implied, which he has ever had or has,
arising out of actions by the Company prior to the date of execution of
this Stock Purchase Agreement.
x. Xxxxxxx further agrees to expressly waive and relinquish
any of the rights and benefits that he might otherwise have or claim to
have under the provisions of Section 1542 of the California Civil Code,
which provides as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
c. The foregoing waiver of the provisions of Section 1542 of
the California Civil Code was separately bargained for, and Xxxxxxx
expressly agrees that the releases contained herein shall be given full
force and effect in accordance with each and all of the expressed terms
and provisions relating to unknown and unsuspected claims, demands and
causes of action, if any. Xxxxxxx acknowledges that he may have
sustained damages, expenses and losses that are presently unknown or
not suspected, and that such damages, expenses and losses, if any, may
give rise to additional claims for damages, expenses and losses in the
future, which are not now anticipated by him. Nevertheless, Xxxxxxx
acknowledges that this Stock Purchase Agreement has been negotiated and
agreed upon in light of this realization and, being fully aware of the
situation, hereby expressly waives all rights that he may have under
California Civil Code section 1542, as well as under any other state or
federal statute or common law principle of similar effect.
6. Xxxxxxx is hereby advised in this writing:
a. To consult with an attorney prior to the execution of this
Stock Purchase Agreement;
b. To be represented by counsel in all matters relative to
the Stock Purchase Agreement, including this waiver; and
c. To seek the advice of his counsel as to the legal effect
of entering into the Stock Purchase Agreement.
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Xxxxxxx has represented to the Company that he is an attorney
and specifically waives his right to consult with counsel in connection
with all matters relating to this Stock Purchase Agreement.
7. No Transfers. Xxxxxxx hereby warrants and represents that (except
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for certain of the subject shares which are presently being held in a margin
account) he has not heretofore assigned, transferred or encumbered any of the
shares of stock which are the subject of this Stock Purchase Agreement. Xxxxxxx
further warrants and represents that all of the shares which are being
surrendered to the Company hereunder will be surrendered free and clear of all
claims, liens, assignments and encumbrances.
8. Legal Action. In any legal action or other proceeding brought to
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enforce or interpret any of the terms of this Stock Purchase Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
legal costs incurred in connection therewith.
9. Time of the Essence. Time is of the essence in this Stock Purchase
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Agreement with respect to all of the terms, provisions, covenants and conditions
contained herein, including specifically, but not limited to, the payment of any
monies or execution and delivery of any documents provided for herein.
10. Drafting. The Parties hereto agree that this Stock Purchase
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Agreement has been jointly negotiated and drafted, that the order of the
paragraphs has no significance, and that the language hereof shall be construed
as a whole according to its fair meaning and interpretation, and not strictly
for or against any of the Parties hereto.
11. Cooperation. Each party hereto agrees to take such further action
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and execute and deliver such further documents, and to give oath to or
acknowledge before a notary public any documents reasonably deemed necessary or
convenient by any party to implement the terms or intent hereof. Without
limiting the generality of the foregoing, in the event that the Company
exercises the option referred to in paragraph 4c above, Xxxxxxx shall take any
and all actions necessary to timely deliver to the Company stock certificates
evidencing the number of shares being purchased by the Company. The failure of
Xxxxxxx to timely deliver the aforementioned stock certificates to the Company
shall be deemed a material breach of this Stock Purchase Agreement by Xxxxxxx.
12. Survival. Notwithstanding anything to the contrary herein, all
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rights and obligations, representations and warranties created under or pursuant
to this Stock Purchase Agreement shall survive the execution and delivery of
this Stock Purchase Agreement, the releases contained herein, and the documents
provided for herein.
13. No Admission of Liability. This Stock Purchase Agreement is a
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settlement of disputed claims, and each of the Parties hereto agrees and
acknowledges that nothing contained herein shall constitute or be deemed an
admission of any fact or liability with respect to any claim, contention or
cause of action that is the subject matter hereof.
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14. Entire Agreement. This Stock Purchase Agreement and the documents
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incorporated herein or concurrently executed herewith shall constitute the
entire agreement between the Parties hereto with respect to the subject matter
hereof, and shall supersede all prior agreements, understandings, warranties,
representations and negotiations of any party herein concerning the subject
matter hereof.
15. Binding Effect. This Stock Purchase Agreement shall inure to the
benefit of and be binding upon the successors in interest of each of the Parties
hereto.
16. Amendments. This Stock Purchase Agreement may not be released,
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amended or modified in any manner whatsoever, except in writing, signed by each
of the Parties hereto.
17. Gender. All references herein to the singular or plural shall
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be deemed to refer to the other, as the context requires, and all references
to the masculine, feminine or neuter shall refer to all of such genders, unless
the context requires otherwise.
18. Governing Law. This Stock Purchase Agreement shall be deemed to
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have been entered into and shall be construed and interpreted in accordance with
the laws of the State of California. Venue of any action arising from or related
to this Stock Purchase Agreement shall be in Los Angeles County, California.
19. Counterparts. This Stock Purchase Agreement may be executed in one
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or more separate counterparts, each of which, when so executed, shall be deemed
an original and shall together constitute one and the same instrument which may
be sufficiently evidenced by any one counterpart, and each of which shall be
fully effective against all persons executing the same and all persons or
entities claiming under them.
20. Captions. The captions of this Stock Purchase Agreement are
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solely for the convenience of the Parties, do not compromise any part of this
Stock Purchase Agreement, and shall not be used to interpret or determine the
validity of any provision hereof.
21. Authority. Each party that is not a natural person hereto hereby
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represents and warrants that it has the power, authority and capacity to enter
into and perform this Stock Purchase Agreement, and the person signing on behalf
of such party represents and warrants that he is duly authorized to so act.
IN WITNESS WHEREOF, this Stock Purchase Agreement is entered into and
shall be effective as of the date first written above.
DATE: December 21, 2000 /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
DATE: December 21, 2000 Unico American Corporation,
a Nevada corporation
By: /s/ Xxxxx Cheldin
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Xxxxx Cheldin, President
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