EXHIBIT 10.28
THE SECURITIES REPRESENTED BY THIS OPTION HAVE NOT BEEN REGISTERED PURSUANT TO
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW. NEITHER THIS SECURITY
NOR ANY PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER THAT ACT
AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND SELLER SHALL HAVE RECEIVED, AT THE EXPENSES OF THE
HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO SELLER
(WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO
SELLER).
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement") is made and entered as of December
23, 1996 between Michaels Stores, Inc., a Delaware corporation ("Seller") and
Devotion Limited, an Isle of Man corporation ("Purchaser").
RECITAL
Seller desires to grant and sell to Purchaser, and Purchaser desires to
purchase from Seller, the option to acquire 1,333,333 newly issued and
outstanding shares (the "Option Shares") of Common Stock, par value $.10 per
share, of Seller (the "Common Stock") on the terms and subject to the conditions
set forth in this Agreement.
Seller and Purchaser hereby agree as follows:
I. OPTION GRANT
1.1 OPTION. In exchange for $0.50 per Option Share (the "Option Xxxxx
Xxxxx"), Seller hereby irrevocably grants to Purchaser an option (the
"Option") to purchase the Option Shares at $10.50 per Option Share (the
"Option Price"). The Option will terminate and will no longer be in effect
after 5:00 p.m. Central Time on February 28, 1997 (the "Option Expiration
Time").
1.2 EXERCISE OF OPTION. The Option may be exercised, in whole or in part,
at any time, or from time to time, from this date to the Option Expiration Time
(the "Option Period"). If at any time, or from time to time, Purchaser wishes
to exercise the Option, in whole or in part, Purchaser will notify Seller in
writing (each an "Option Notice") of the number of Option Shares for which the
Option is being exercised.
1.3 OPTION PRICE. If Purchaser exercises the Option pursuant to Section
1.2, Purchaser will pay to Seller at the Closing (as defined below) the
aggregate amount equal to the product of (a) the number of Option Shares that
are the subject of the
related Option Notice multiplied by (b) the Option Price less the Option Xxxxx
Xxxxx (the "Purchase Price").
1.4 THE CLOSING.
(a) Subject to Section 1.5, the closing of the purchase and sale of
the Option Shares under this Agreement (the "Closing") will take place on the
date five business days after the Seller has delivered an Option Notice or such
other date as Seller and Purchaser may agree (the "Closing Date").
(b) At the Closing, (i) Purchaser will pay to Seller the Purchase
Price by wire transfer of immediately available funds to an account or accounts
designated by Seller and (ii) Seller will deliver to Purchaser a single
certificate representing the Option Shares registered in the name of "Devotion
Limited".
(c) At the Closing Seller will deliver to Purchaser, and Purchaser
will deliver to Seller, a certificate confirming that their respective
representations and warranties set forth in this Agreement are true and complete
in all material respects on the Closing Date as if made on that date.
1.5 CONDITION TO CLOSING.
(a) Notwithstanding anything to the contrary in this Agreement, the
obligation of Seller to consummate the sale and purchase of the Option Shares
contemplated hereby is subject to satisfaction of each of the following
conditions:
(i) The Board of Directors of Seller shall have approved the
sale of the Option Shares on or before the Closing Date.
(ii) The representations and warranties of Purchaser in this
Agreement shall be true and complete in all material respects on and as of
the Closing Date.
(b) Notwithstanding anything to the contrary in this Agreement, the
obligations of Purchaser to consummate the sale and purchase of the Option
Shares contemplated hereby are subject to the condition that the representations
and warranties made by Seller in this Agreement shall be true and complete in
all material respects on and as of the Closing Date.
II. REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 ORGANIZATION; POWER AND AUTHORITY. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Seller has requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery by Seller
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of this Agreement and the performance by it of the transactions contemplated
hereby to be performed by it have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement has been duly executed
and delivered by Seller and constitutes a valid and binding obligation of
Seller.
2.2 CAPITALIZATION. The authorized capital stock of Seller consists of
(i) 50,000,000 shares of Common Stock, of which as of December 10, 1996,
23,560,592 shares were issued and outstanding, fully paid and nonassessable and
no shares were held in the treasury, and (ii) 2,000,000 shares of preferred
stock, $.10 par value per share, of which as of December 10, 1996, no shares
were outstanding. Upon the issuance of the Option Shares to Purchaser and the
payment to Seller of the Purchase Price, the Option Shares will be validly
issued and outstanding, fully paid and nonassessable, and Purchaser will acquire
good and valid title to the Option Shares, free and clear of any charges, liens
or other encumbrances ("Encumbrances") of any kind. Neither the granting of the
Option or issuing any of the Option Shares will violate any preemptive rights,
rights of first refusal or other acquisition rights.
2.3 CONSENT AND APPROVALS; NO VIOLATION. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) conflict with or result in any breach
or violation of, or constitute a default under, any note, pledge, trust,
commitment, agreement or other instrument or obligation to which Seller is a
party or by which Seller or any of its properties may be bound, (b) require any
consent, approval, authorization or permit of, or filing with or notification
to, any court, governmental authority or other regulatory or administrative
agency or commission, domestic or foreign ("Governmental Entity"), or (c)
violate any statute or any order, decree, injunction, rule or regulation of any
Governmental Entity applicable to Seller.
2.4 SEC REPORTS; FINANCIAL STATEMENTS.
(a) Seller has delivered to Purchaser (i) its Annual Report on Form
10-K for the fiscal year ended January 28, 1996 and (ii) its Quarterly Reports
on Form 10-Q for each of the fiscal quarters ended April 28, 1996, July 28, 1996
and October 27, 1996, respectively, each in the form (including exhibits) filed
with the Securities and Exchange Commission ("SEC") (collectively, the "SEC
Reports"). Each SEC Report has been prepared and filed in accordance with all
applicable rules and regulations of the SEC and at the time of its filing was in
compliance with such rules and regulations in all material respects. As of
their respective dates, the SEC Reports did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) Each of the audited consolidated financial statements and
unaudited consolidated interim financial statements of Seller (and the related
notes and schedules) included in the SEC Reports present fairly, in all material
respects, the consolidated financial position of Seller and its consolidated
subsidiaries as of the respective dates
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thereof and the results of operations and cash flows for the respective
periods set forth therein, in accordance with generally accepted accounting
principles consistently applied during the period involved, except as
otherwise noted therein and subject, in the case of the unaudited interim
consolidated financial statements, to the omission of certain notes not
ordinarily accompanying such unaudited interim consolidated financial
statements and to normal year-end adjustments and any other adjustments
described therein.
(c) Except as set forth in the SEC Reports, any other reports filed
with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that relate to Seller, and any public announcements made by
Seller, since October 27, 1996 there has been no material adverse change in the
assets, earnings, financial position, business or prospects of Seller and its
subsidiaries, considered as a whole.
2.5 NO BROKER; FINDER; ETC. None of Seller or its directors, officers or
employees has employed any investment banker, consultant, broker or finder or
incurred any liability for any brokerage fees, commissions or finders fees in
connection with the transactions contemplated under this Agreement.
III. REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 PURCHASE FOR INVESTMENT. Purchaser acknowledges that the Option and
the Option Shares have not been registered under the Securities Act of 1933, as
amended ("Securities Act"), or under any state or foreign securities laws.
Purchaser is not an underwriter as such term is defined under the Securities
Act, and is purchasing the Option Shares solely for investment with no present
intention to distribute any of the Option Shares to any person or entity
("Person"). Purchaser will not sell or otherwise dispose of any of the Option
Shares, except in accordance with the registration requirements or exemption
provisions under the Securities Act and the rules and regulations promulgated
thereunder, and any other applicable securities laws. Purchaser further
understands that the certificate representing the Option Shares will bear the
following legend and agrees that it will hold the Option Shares subject thereto:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY PORTION
HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE
SAME IS REGISTERED UNDER THAT ACT AND ANY APPLICABLE STATE
SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND MICHAELS STORES, INC. SHALL
HAVE RECEIVED,
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AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION
REASONABLY SATISFACTORY TO MICHAELS STORES, INC. (WHICH MAY
INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO
MICHAELS STORES, INC.).
3.2 SUITABILITY AND SOPHISTICATION. Purchaser represents and warrants
that it (a) is an "accredited investor" as defined in Rule 501(a) promulgated
under the Securities Act, (b) has such knowledge and experience in financial and
business matters that it is capable of independently evaluating the risks and
merits of purchasing the Option and the Option Shares, (c) has been provided
with the opportunity to make a reasonable investigation of Seller, including the
opportunity to make any inquiries and to request additional information
necessary to its investment decision, and Seller has satisfactorily responded to
any inquiries and furnished to Purchaser all requested information, (d) has
independently evaluated the risks and merits of purchasing the Option and the
Option Shares and has independently determined that the Option Shares are a
suitable investment for it, and (e) has sufficient financial resources to bear
the loss of its entire investment in the Option and the Option Shares.
3.3 CONSENT AND APPROVALS; NO VIOLATION. Neither the execution and
delivery of this Agreement by Purchaser nor the consummation by Purchaser of the
transactions contemplated hereby will (a) conflict with or result in any breach
or violation of, or constitute a default under, any note, pledge, trust,
commitment, agreement or other instrument or obligation to which Purchaser is a
party or by which Purchaser or any of its properties may be bound, (b) require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, or (c) violate any statute or any
order, decree, injunction, rule or regulation of any Governmental Entity
applicable to Purchaser.
3.4 NO AGREEMENTS. Purchaser acknowledges that there are no agreements,
arrangements, commitments or understandings relating to any of the Option Shares
except pursuant to this Agreement.
3.5 NO BROKER; FINDER; ETC. None of Purchaser or its directors, officers,
agents or employees has employed any investment banker, consultant, broker or
finder or incurred any liability for any brokerage fees, commissions or finders
fees in connection with the transactions contemplated under this Agreement.
IV. REGISTRATION RIGHTS
4.1 REGISTRATION. Upon receipt of a written request (the "Registration
Notice") by Purchaser at any time after one year from the date of the initial
Closing, Seller shall cause to be filed as soon as practicable a registration
statement (a "Shelf Registration Statement") under the Securities Act on Form
S-3 or any other appropriate form under
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the Securities Act for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 thereunder or any similar rule that may be adopted by the
SEC and permitting sales in ordinary course brokerage or dealer transactions
not involving an underwritten public offering (and shall register or qualify
the shares to be sold in such offering under such other securities or "blue
sky" laws as required pursuant to this Section 4.1) covering no less than the
aggregate number of Option Shares then held by Purchaser (those Option Shares
together with any shares of Common Stock or other securities that may
subsequently be issued with respect to the Option Shares as result of a stock
split or dividend, reclassification, or combination of shares or any sale,
transfer, assignment or other transaction by Seller or Purchaser involving the
Option Shares and any securities into which the Option Shares may thereafter
be changed as a result of merger, consolidation, or recapitalization or
otherwise are referred to as the "Registrable Shares") so that the Registrable
Shares will be included in an effective registration statement under the
Securities Act. Seller shall use its reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the SEC on or before 90
days following Seller's receipt of the Registration Notice. Seller shall use
its reasonable efforts to keep the Shelf Registration Statement continuously
effective (and to register or qualify the shares to be sold in such offering
under such other securities or "blue sky" laws as required pursuant to this
Section 4.1) for so long as Purchaser holds any Registrable Shares or until
Seller has caused to be delivered to Purchaser an opinion of counsel, which
counsel shall be reasonably acceptable to Purchaser, stating that the
Registrable Shares may be sold by Purchaser pursuant to Rule 144 without
regard to any volume limitations and that Seller has satisfied the
informational requirements of Rule 144. Seller shall file any necessary
listing applications or amendments to existing applications to cause the
Registrable Shares to be listed on the primary exchange or quotation system on
which its shares of Common Stock are then listed, if any. Seller will use
reasonable efforts to register or qualify the Registrable Shares under such
other securities or "blue sky" laws of such jurisdictions as Purchaser may
reasonably request and do any and all other acts and things that may be
reasonably necessary or advisable to register or qualify for sale in such
jurisdictions the Registrable Shares owned by Purchaser; PROVIDED THAT Seller
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) subject itself to
taxation in any such jurisdiction, (iii) consent to general service of process
in any such jurisdiction, or (iv) provide any undertaking required by such
other securities or "blue sky" laws or make any change in its charter or
bylaws that the Board of Directors of Seller determines in good faith to be
contrary to the best interest of Seller and its stockholders. Notwithstanding
the foregoing, if Seller shall furnish to Purchaser a certificate signed by
the chief executive officer of Seller stating that in the good faith judgment
of the Board of Directors of Seller it would be significantly disadvantageous
to Seller and its stockholders for the Shelf Registration Statement to be
amended or supplemented, Seller may defer such amending or supplementing of
such Shelf Registration Statement for not more than 45 days and in such event
Purchaser shall be required to discontinue disposition of any Registrable
Shares covered by such Shelf Registration Statement during such period.
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4.2 DISTRIBUTION OF REGISTRABLE SHARES. If Purchaser intends to
distribute the Registrable Shares covered by the Shelf Registration Statement by
means of an underwriting, Purchaser shall so advise Seller. In that event, the
underwriting shall be managed by an underwriter or underwriters selected by
Purchaser that are reasonably acceptable to Seller (which approval shall not
unreasonably be withheld). Purchaser shall have the right to negotiate with the
underwriters and to determine all terms of the underwriting, including the gross
price and net price at which the Registrable Shares are to be sold. Seller
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected as above provided and any representations
and warranties of Seller thereunder to and for the benefit of the underwriters
shall also be made to and for the benefit of Purchaser. Seller will furnish to
Purchaser and the underwriters (i) an opinion of counsel for Seller, addressed
to Purchaser and the underwriters, dated the date of the closing under the
underwriting agreement, and (ii) a "comfort letter" signed by the independent
public accountants who have certified Seller's financial statements included in
the Shelf Registration Statement, addressed to Purchaser and the underwriters;
PROVIDED HOWEVER, that (i) the opinion and "comfort letter" shall cover
substantially the same matters with respect to the Shelf Registration Statement
(and the prospectus included therein) as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public secondary offerings and such other matters as Purchaser may
reasonably request, and (ii) the "comfort letter" shall also cover events
subsequent to the date of such financial statements.
4.3 FURNISH INFORMATION. In connection with the Shelf Registration
Statement, Purchaser will (a) cooperate with Seller to effect such registration
and to maintain the effectiveness thereof, (b) promptly and accurately furnish
any information reasonably requested by Seller concerning Purchaser and the
proposed distribution by Purchaser, and (c) promptly comply with all applicable
requirements of the Securities Act, the Exchange Act and any other applicable
federal or state laws, including, but not limited to, furnishing Seller such
information regarding Purchaser, the Registrable Shares held by it and the
intended method of disposition of such securities as reasonably required in
connection with the action to be taken by Seller pursuant to this Agreement.
4.4 EXPENSES OF REGISTRATION. Seller will bear all expenses incurred in
effecting any registration pursuant to this Agreement, including without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for Seller, blue sky fees and
expenses, expenses of any regular or special audit incident to or required by
any such registration, but will not include any expenses payable by Purchaser
under this Section 4.4. Purchaser will pay in connection with any registration
of its Registrable Shares any underwriting discounts, selling commissions, fees
or disbursements of Purchaser's counsel or of any advisor to Purchaser not
retained by Seller, or fees and expenses incident to preparation of information
by Purchaser, and expenses incurred in connection with the qualification of the
Registrable Shares in a jurisdiction that requires those expenses to be paid by
a selling shareholder.
4.5 REGISTRATION PROCEDURE.
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(a) Seller will keep Purchaser advised in writing of the initiation
and the completion of each registration, qualification and compliance effected
by Seller under this Agreement.
(b) At its expense, Seller will:
(i) prepare and file with the SEC such amendments and supplements
to the Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Shelf Registration Statement
effective for the period described in Section 4.1(a) and to comply with the
provisions of the Securities Act with respect to the sale or other
disposition of the Registrable Shares whenever the Purchaser shall desire
to sell or otherwise dispose of the Registrable Shares within that period;
(ii) furnish to Purchaser and any underwriters such numbers of
copies of the Shelf Registration Statement, amendments and supplements
thereto, the prospectus included in the Shelf Registration Statement
including any preliminary prospectus, and any amendments or supplements
thereto, and such other documents, as Purchaser and any underwriters may
reasonably request in order to facilitate the sale or other disposition of
the Registrable Shares;
(iii) use its reasonable efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, beginning with the first fiscal
quarter beginning after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act; and
(iv) notify Purchaser at any time when a prospectus relating to
the Registrable Shares is required to be delivered under the Securities
Act, of the happening of any event of which Seller has knowledge as a
result of which the prospectus included in the Shelf Registration
Statement, as then in effect, contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
4.6 POSTPONEMENT OF REGISTRATION. If after any registration statement
including Registrable Shares has become effective there exists in the opinion of
Seller's management material non-public information about Seller which has not
been released and which, in the reasonable opinion of Seller's management, would
not be advisable to release, then upon receipt of notice from Seller, Purchaser
will not offer or sell or permit to be offered or sold any of the Registrable
Shares for such time as Seller believes such condition is continuing. If the
offering is not completed because of Seller's exercise of its rights hereunder,
Seller will reimburse Purchaser for all of its expenses incurred in connection
with the terminated offering.
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4.7 INDEMNIFICATION BY SELLER.
(a) Seller will indemnify Purchaser, its directors, officers,
employees, and agents, and any person controlling the Purchaser (within the
meaning of the Securities Act) and each underwriter, if any, of the Registrable
Shares and each person controlling that underwriter (within the meaning of the
Securities Act), against all claims, losses, expenses, damages, liabilities and
actions ("Claims") in respect of Claims (including any Claim incurred in
settlement of any litigation, commenced or threatened) arising out of or based
on (i) any untrue statement or alleged untrue statement of a material fact in
any prospectus or any related registration statement, or any amendment or
supplement thereto, or any notification or the like incident to any such
registration, or any amendment or supplement thereto, or any qualification or
compliance, or (ii) any omission or alleged omission to state in any such
prospectus or related registration statement incident to such registration,
qualification or compliance, a material fact required to be stated in it or
necessary to make that statement in it not misleading in light of the
circumstance in which the statement was made, or (iii) any violation by Seller
of any rule or regulation promulgated under the Securities Act applicable to
Seller and relating to action or inaction required of Seller in connection with
any such registration, qualification or compliance; provided, however, that the
indemnity agreement contained in this Section 4.7(a) will not apply (A) to
amounts paid in settlement of any Claim if such settlement is effected without
the consent of Seller (which consent will not be unreasonably withheld) and (B)
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus or the prospectus or the prospectus
as amended or supplemented, but eliminated or remedied in the prospectus or the
prospectus as amended or supplemented, and will not inure to the benefit of
Purchaser, its directors, officers, employees, agents, or any underwriter (or to
the benefit of any person who controls Purchaser or such underwriter within the
meaning of the Securities Act) from whom the person asserting the Claim
purchased any of the Registrable Shares, if a copy of the prospectus (as then
amended or supplemented and provided to Purchaser) was not sent or given to such
person through no fault of Seller at or prior to the time such action is
required by the Securities Act, nor will Seller be liable in any such case for
any Claim to the extent that it arises out of or is based upon (1) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (2) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (3) any violation
or alleged violation by Seller of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law (collectively a "Violation")
which occurs in reliance upon and in conformity with written information
furnished for use in connection with such registration by or on behalf of
Purchaser (with respect to a Claim by Purchaser under this Section 4.7(a)) or
such underwriter or controlling person (with respect to a Claim by such
underwriter or controlling person under this Section 4.7(a)).
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(b) Seller will reimburse Purchaser, its directors, officers,
employees, agents, and controlling person and each such underwriter or
controlling person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any Claim; provided, however, that
the reimbursement provisions contained in this Section 4.7(b) will not apply (i)
to amounts paid in settlement of any Claim if such settlement is effected
without the consent of Seller (which consent will not be unreasonably withheld)
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus or the prospectus or
the prospectus as amended or supplemented, but eliminated or remedied in the
prospectus or the prospectus as amended or supplemented, and will not inure to
the benefit of Purchaser, its directors, officers, employees, agents, and
controlling person or any underwriter (or to the benefit of any person who
controls such underwriter within the meaning of the Securities Act) from whom
the person asserting any Claim purchased any of the Registrable Shares, if a
copy of the prospectus (as then amended or supplemented and provided to
Purchaser) was not sent or given to such person through no fault of Seller at or
prior to the time such action is required by the Securities Act, nor will Seller
be liable in any such case for any Claim to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished for use in connection with such registration by or
on behalf of Purchaser (with respect to a claim for reimbursement by Purchaser,
its directors, officers, employees, agents, and controlling person under this
Section 4.7(b)) or such underwriter or controlling person (with respect to a
claim for reimbursement by such underwriter or controlling person under this
Section 4.7(b)).
4.8 INDEMNIFICATION BY PURCHASER.
(a) Purchaser hereby indemnifies Seller, its directors, officers,
employees, agents, and any person controlling Seller (within the meaning of the
Securities Act) each underwriter, if any, of Seller's securities covered by such
registration statement, each person who controls that underwriter (within the
meaning of the Securities Act) against all Claims (including any Claim incurred
in settlement of any litigation commenced or settled) arising out of or based on
(i) any untrue statement or alleged untrue statement of a material fact in any
prospectus or any related registration statement, notification or the like,
incident to such registration, qualification or compliance, or (ii) any omission
or alleged omission to state in any such prospectus or any related registration
statement, qualification or compliance, a material fact required to be stated in
it or necessary to make the statement(s) in it not misleading in light of the
circumstance in which the statement was made, or (iii) any violation by
Purchaser of any rule or regulation promulgated under the Securities Act
applicable to Purchaser and relating to action or inaction required of Purchaser
in connection with any such registration, qualification or compliance; provided,
however, that the indemnity agreement contained in this Section 4.8(a) will
apply to any Claim only to the extent that it arises out of or is based upon a
Violation which occurs solely in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
or on behalf of Purchaser, and provided further that Purchaser will have no
liability hereunder if (A) any such written information contained an untrue
statement
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or omission or alleged untrue statement or omission that was subsequently
corrected in writing by Purchaser and furnished to Seller or the underwriter
in sufficient time for incorporation into the final prospectus, or (B) Seller
pays any amounts in settlement of any such Claim if such settlement is
effected without the consent of Purchaser (which consent will not be
unreasonably withheld).
(b) Purchaser will reimburse Seller and its directors, officers,
employees, agents and controlling person (within the meaning of the Securities
Act) each underwriter, and each person controlling that underwriter (within the
meaning of the Securities Act) for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such Claim; provided,
however, that the reimbursement provisions contained in this Section 4.8(b) will
apply to any such Claim only to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
or on behalf of Purchaser.
4.9 NOTICE. Promptly after receipt by an indemnified party under Section
4.7 or 4.8 of notice of the commencement of any action (including, but not
limited to, any action by a Governmental Entity), such indemnified party will,
if a Claim in respect thereof is to be made against any indemnifying party under
Sections 4.7 or 4.8, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party will have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties and the indemnified
party will bear the fees and expenses of any additional counsel thereafter
retained by it; provided, however, that indemnified parties will have the right
to retain counsel to represent all indemnified parties, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified parties by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential material differing interests between
such indemnified parties and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, will relieve such indemnifying party of
any liability to the indemnified party under Section 4.7 or 4.8, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under Section 4.7 or 4.8.
4.10 CONTRIBUTION.
(a) If for any reason the indemnification provided for in Section 4.7
or 4.8 is unavailable to an indemnified party or insufficient to hold it
harmless as contemplated by such sections, then the indemnifying party will
contribute to the amount paid or payable by the indemnified party as a result of
any Claim in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and the indemnifying party, as well
as any other relevant equitable considerations; provided,
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however, that, in any such case, (i) Purchaser will not be required to
contribute any amount in excess of the sales price of all Registrable Shares
sold by Purchaser pursuant to such registration statement, and (ii) no party
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any other party
who was not guilty of such fraudulent misrepresentation.
(b) Promptly after receipt by a party of notice of the commencement
of any action, suit or proceeding in connection with a public offering of Common
Stock, such party will, if a claim for contribution in respect thereof is able
to be made against another party, notify the contributing party of the
commencement thereof. The omission to notify the contributing party will not
relieve it from any liability which it may have to any other party other than
for contribution under the Securities Act. In case any such action, suit or
proceeding is brought against any party, and such party notifies a contributing
party of the commencement thereof, the contributing party will be entitled to
participate therein with the notifying party and any other contributing party
similarly notified.
4.11 "MARKET STAND-OFF" AGREEMENT. Purchaser will not, to the extent
requested by Seller or the underwriter(s) managing any underwritten offering of
Seller's securities, sell, make any short sale of, loan, grant any option for
the purchase of or otherwise transfer or dispose of any Option Shares (other
than those included in the underwritten offering) without the prior written
consent of Seller or such underwriters for such period of time as Seller or the
underwriters may specify commencing up to 7 days before the anticipated
effective date of an underwritten registration of Seller's securities and
extending up to 120 days after that effective date. In order to enforce the
foregoing, Seller may impose stop-transfer instructions with respect to the
Option Shares.
V. ADDITIONAL COVENANTS
5.1 RESTRICTIONS ON TRANSFER.
(a) RESTRICTION. For a period of 3 years from the date of the
initial Closing, Purchaser covenants and agrees that it will not and it will
cause each of its "Affiliates" (as hereinafter defined) to not directly or
indirectly sell, tender, transfer, pledge, hypothecate or otherwise dispose of,
or offer or agree to do any of the foregoing ("Transfer"), any interest in the
Option Shares which may be owned "beneficially" (as that term is defined in Rule
13d-3 under the Exchange Act) or of record by it and such Affiliates, except:
(i) a Transfer to any person or entity who or which agrees to be
bound by all the provisions of this Article V;
(ii) a Transfer to any person or entity who or which has made a
tender offer for Seller's Common Stock, but only if the Board of Directors
of
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Seller has recommended acceptance of such tender offer to the stockholders
of Seller;
(iii) a Transfer to Seller or any of its Subsidiaries;
(iv) a Transfer to an Affiliate of Purchaser which is (or agrees
to become) a party hereto;
(v) a Transfer which is a bona fide pledge of, or grant of a
security interest in, the Option Shares to an institutional, commercial, or
other bona fide lender (including without limitation any securities
brokerage) for money borrowed;
(vi) a Transfer in connection with any registration statement of
Seller that is declared effective during the term of this Article V and
includes the Option Shares as a result of exercise of the registration
rights granted pursuant to this Agreement; provided, however, that any such
disposition by Purchaser or an underwriter pursuant to this Section 5.1(vi)
will be made in a manner which (if pursuant to an underwritten offering, in
the written opinion of the underwriter) is intended to effect a broad
distribution with no Transfers of the Option Shares to any one "person" or
"group" (as such terms are defined in and under Section 13(d) of the
Exchange Act) if after such Transfers such person or group would
beneficially hold in excess of 5 percent of Seller's Common Stock; or
(vii) a Transfer permitted pursuant to Rule 144 under the
Securities Act; provided, that Purchaser will use its best efforts to
effect as wide a distribution of the Option Shares as is reasonably
practicable.
(b) DEFINITION OF AFFILIATE. For all purposes of this Agreement, when
used with reference to Purchaser, the word "Affiliate" means any person directly
or indirectly controlling, controlled by, or under direct or indirect control
with, Purchaser or such other person, as the case may be. For the purposes of
this definition, "control" when used with respect to any specified person means
the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative of the foregoing. For the purposes of this definition, "person"
includes, without limitation, any individual, corporation, partnership, joint
venture, trust, and any employee pension, profit sharing and other benefit plan
and trust. As to any individual person, the term "person" means such
individual's spouse, children, brothers and sisters.
5.2 NO TRANSFER. Purchaser covenants and agrees that for a period of 3
years from the date of the initial Closing, without Seller's prior written
consent, it will not and it will cause each of its Affiliates to not Transfer or
otherwise dispose of or encumber any of the Option Shares or any beneficial
interest therein except as permitted pursuant to this Article V.
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5.3 LEGENDS AND STOP TRANSFER ORDERS.
(a) LEGEND. During the term of the restrictions and covenants of
this Article V each of the certificates representing the Option Shares will be
registered in the name of Purchaser (except as hereinafter permitted), will be
subject to stop transfer instructions, and will include substantially the
following legend in addition to any other legends required by the terms of this
Agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN LIMITATIONS ON TRANSFER SET FORTH IN A STOCK OPTION
AGREEMENT, DATED DECEMBER 23, 1996, BETWEEN MICHAELS STORES,
INC. AND DEVOTION LIMITED, WHICH MAY BE APPLICABLE TO
CERTAIN TRANSFEREES. A COPY OF SUCH AGREEMENT IS ON FILE
WITH THE SECRETARY OF MICHAELS STORES, INC.
(b) REMOVAL OF LEGEND. Such stop transfer instructions and legend
will be applicable to any disposition of the Option Shares other than pursuant
to a public offering of the Option Shares permitted pursuant to Section 5.1(vi).
5.4 TERM AND TERMINATION.
(a) TERM. The term of these restrictions and covenants in this
Article V will commence on the date hereof and will continue for a period of 3
years after the initial Closing.
(b) TERMINATION. Notwithstanding the foregoing, the restrictions and
covenants in this Article V will terminate immediately if individuals who at the
date hereof constituted the Board of Directors of Seller and any new director
whose election by the Board or nomination for election by Seller's stockholders
was approved by a vote of at least two-thirds of the directors then still in
office, who either were directors at such date or whose election or nomination
for election was previously so approved, have ceased for any reason to
constitute a majority thereof.
5.5 CERTAIN ACTIONS. Purchaser agrees that for a period of 3 years after
the initial Closing, except within the terms of a specific request from Seller,
it will not propose or publicly announce or otherwise disclose an intent to
propose, or enter into or agree to enter into, singly or with any other person
or directly or indirectly, (a) any form of business combination, acquisition, or
other transaction relating to Seller or any majority-owned affiliate thereof,
(b) any form of restructuring, recapitalization or similar transaction with
respect to Seller or any such affiliate, or (c) any demand, request or proposal
to amend, waiver or terminate any provision of this Agreement, and except as
aforesaid during such period, Purchaser will not (i) acquire, or offer, propose
or agree to acquire by purchase or otherwise, any securities of Seller entitled
to be voted generally
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in the election of directors of Seller or any direct or indirect options or
other rights to acquire any such securities ("Voting Securities"), (ii) make,
or in any way participate in, any solicitation of proxies with respect to any
Voting Securities (including by the execution of action by written consent),
become a participant in any election contest with respect to Seller, seek to
influence any Person with respect to any Voting Securities or demand a copy of
Seller's list of its stockholders or other books and records, (iii)
participate in or encourage the formation of any partnership, syndicate or
other group which owns or seeks or offers to acquire beneficial ownership of
any Voting Securities or which seeks to affect control of Seller or for the
purpose of circumventing any provision of this Agreement, or (iv) otherwise
act, alone or in concert with others (including by providing financing for
another Person), to seek or to offer to control of influence, in any manner,
the management, Board of Directors or policies of Seller.
5.6 SPECIFIC PERFORMANCE. Purchaser acknowledges that Seller would be
irreparably damaged and would not have an adequate remedy at law for money
damages in the event that any of the covenants of Seller in this Article V were
not performed in accordance with its terms or otherwise were materially
breached. Purchaser therefore agrees that Seller will be entitled to an
injunction or injunctions to prevent breaches of such performance and to
specific enforcement of such covenants in addition to any other remedy to which
it may be entitled, at law or in equity.
VI. MISCELLANEOUS
6.1 CONFIDENTIALITY. The terms of this Agreement will remain confidential;
provided, however, Seller may make such disclosure in any public filing or
announcement as may be necessary to comply with applicable law.
6.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Except as
provided in this Agreement, each of the representations, warranties and
covenants in this Agreement will survive the consummation of the transactions
contemplated in this Agreement. Article IV and V will have no force or effect
until Purchaser has delivered an Option Exercise Note to Seller under Section
1.2 and acquired any or all of the Option Shares.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between Purchaser and Seller with respect to the transactions contemplated
hereby and supersedes all prior agreements among the parties with respect to
such matters.
6.4 RIGHTS OF THE PARTIES. Nothing expressed or implied in this Agreement
is intended or will be construed to confer upon or give any person or entity
other than the parties hereto and their permitted assigns any rights or remedies
under or by reason of this Agreement or any transaction contemplated hereby.
6.5 FURTHER ASSURANCES. From time to time, as and when requested by
either party hereto, the other party will execute and deliver, or cause to
be executed and
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delivered, all such documents and instruments as may be reasonably necessary
to consummate the transactions contemplated hereby.
6.6 APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts made and
to be performed in that State, without giving effect to the principles of
conflicts of law thereof.
6.7 INTERPRETATION. For purposes of this Agreement, a "subsidiary" of a
corporation means any corporation more than 50% of the outstanding voting
securities of which are directly or indirectly owned by such other corporation.
The descriptive headings contained herein are for convenience and reference only
and will not effect in any way the meaning or interpretation of this Agreement.
6.8 NOTICES. All notices and other communications hereunder must be in
writing and must be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by cable, telegram, telex, facsimile
transmission or other standard form of telecommunications, or by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
If to Seller:
Michaels Stores, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Fax No.: 000-000-0000
If to Purchaser:
Devotion Limited
c/o Trident Trust Company (IOM) Limited
000 Xxxxxx Xxxxxx
P. O. Box 175
Douglas, Isle of Man
British Isles IM99ITT
Attention: Xxxxx Xxxxxx
Fax No.: 000-00-0000-000-000
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original but all of which
together will constitute but one agreement.
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6.10 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable by any party without the prior
written consent of the other party; provided that any such assignment will not
relieve the assigning party from any of its obligations hereunder.
6.11 EXPENSES. Subject to Section 4.7 and 4.8 hereof, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby will be paid by the party incurring such expense.
6.12 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
SELLER:
MICHAELS STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: VP - Finance & Planning
----------------------------
PURCHASER:
DEVOTION LIMITED
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------
Title: Director
----------------------------
Xxxxx Hermanus Xxxxxx
Company Secretary
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