EXHIBIT 99(4)
AGREEMENT RELATING TO
WITHDRAWAL AND REDEMPTION OF
MEMBERSHIP INTEREST
IN
BALCO HOLDINGS, L.L.C.
THIS AGREEMENT is made as of this 4th day of October, 2001 by and among
XxXxxxxx Group, Inc., a Nebraska Corporation (the "Withdrawing Member") and
BalCo Holdings, L.L.C., a Delaware limited liability company (the "Company").
W I T N E S S E T H :
WHEREAS, Withdrawing Member is a Member of the Company having a 10%
membership interest in the Company and is entitled to all the rights and
privileges as such as set forth in the Operating Agreement of the Company, dated
April 20, 2001 (the "Operating Agreement"); and
WHEREAS, the Withdrawing Member desires to withdraw as a member of the
Company and to have its membership interests in the Company redeemed by the
Company on the terms and conditions herein set forth; and
WHEREAS, the continuing members of the Company have consented to the
withdrawal of the Withdrawing Member and the redemption of its respective
membership interest in the Company pursuant to the terms and conditions of this
Agreement;
NOW THEREFORE, in consideration of the mutual covenants and promises made
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. WITHDRAWAL AND ASSIGNMENT.
(a) The Withdrawing Member hereby withdraws as a member of the Company
effective as of the date hereof and assigns, conveys, transfers and delivers to
the Company, absolutely and without reservation, all of such Withdrawing
Member's membership interest including, without limitation, all rights of such
Withdrawing Member to receive cash distributions, all rights of such Withdrawing
Member to receive a return of its capital and other distributions upon the
dissolution of the Company, all rights of such Withdrawing Member to allocations
of profits and losses and all other rights, powers and obligations provided to
such Withdrawing Member under the Operating Agreement.
(b) The Company hereby acknowledges and accepts the withdrawal of the
Withdrawing Member from the Company and agrees to take any and all such actions
as are necessary to reflect such withdrawal.
SECTION 3. PAYMENT OF REDEMPTION PRICE.
Upon execution of this Agreement, the Company agrees to pay the Withdrawing
Member a total redemption price of ONE HUNDRED TWENTY FIVE THOUSAND AND 00/100
DOLLARS ($125,000.00) which shall be paid in full by the distribution by the
Company to the Withdrawing Member of 323,885 shares of the 3,238,846 shares of
common stock of Ballantyne of Omaha, Inc. owned by the Company. Such
distribution shall be made in kind and the shares shall in no manner be
liquidated.
SECTION 3. MUTUAL RELEASE FROM LIABILITY.
(a) As a condition to its withdrawal from the Company, the Withdrawing
Member hereby releases and discharges the Company from any and all claims which
the Withdrawing Member has or may have against the Company.
(b) The Company hereby releases and discharges the Withdrawing Member
from any and all claims which the Company has or may have against the
Withdrawing Member.
SECTION 4. MISCELLANEOUS.
(a) This Agreement contains the entire understanding and agreement among
the parties hereto with respect to the subject matter hereof and supersedes any
prior agreements or understandings between them pertaining thereto, including
the provisions of the Operating Agreement. No amendment or waiver of any
provision of this Agreement shall be binding unless it is in writing.
(b) This Agreement shall be construed and interpreted in accordance with
the substantive laws of the State of Nebraska without giving effect to its
conflict of laws principles.
(c) This Agreement may be signed in any number of counterparts, each of
which shall constitute an original but all of which, when taken together, shall
constitute but one agreement.
[Signatures begin on the next page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BALCO HOLDINGS, L.L.C., a
Delaware limited liability company,
XxXxxxxx Group, Inc., Manager
By /s/ XXXXXXXX X. XXXXX
-------------------------------------
Xxxxxxxx X. Xxxxx
Chief Financial Officer
XXXXXXXX GROUP, INC., a Nebraska
Corporation
By /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. XxXxxxxx, Chairman
