STOCK PURCHASE AGREEMENT
Stock
Purchase Agreement (this “Agreement”) entered into as of September 17, 2009, by
and between Xxxx X. Bagerdjian (the “Buyer”), and Xx Xxxxx (the
“Seller”).
WHEREAS,
the Seller desires to sell, and the Buyer desires to purchase for the
consideration and on the terms set forth in this Agreement up to 934,783 shares
of the common stock (the “Common Stock”) of Point.360, a California corporation
(the “Company”), owned by the Seller.
NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made,
and in consideration of the representations and warranties herein contained, the
Buyer and the Seller agree as follows:
1. Initial Purchase and Sale of
347,826 of Seller’s Shares of Common Stock.
(a) On
and subject to the terms and conditions of this Agreement, the Buyer hereby
purchases from the Seller, and the Seller hereby sells to the Buyer 347,826
shares of Common Stock of the Company owned by the Seller (the “Shares”) for a
purchase price of $1.15 per Share (aggregate purchase price of
$400,000).
(b) Concurrently
herewith, the Seller shall deliver or will cause to be delivered to the Buyer a
stock power and assignment endorsed in blank covering the transfer and
assignment of the Shares.
(c) Concurrently
with the execution of this Agreement, the Buyer shall pay to the Seller $400,000
in cash as consideration for the Shares.
2. Puts/Calls
(a) The
Buyer has the option at any time or from time to time, from the date hereof
until September 1, 2010 to acquire from the Seller up to 586,957 shares of the
Common Stock of the Company (the “Call Shares”) for a purchase price of $1.15
per share. Such option shall be exercised by delivery to the Seller
of a check in the amount of the purchase price of the Call Shares being
purchased. The Seller shall, as soon as practicable, but no more than
three days from the exercise of such option by the Buyer, deliver to the Buyer a
stock power and assignment endorsed in blank covering the transfer and
assignment of the Call Shares.
(b) The
Seller has the option to cause the Buyer to purchase from the Seller up to
586,957 Shares of the Common Stock of the Company (the “Put Shares”) for a
purchase price of $1.15 per share in accordance with the schedule attached
hereto as Exhibit A. Such option shall be exercised by the Seller’s
notifying the Buyer (as provided in Paragraph 5(a) hereof) of the Seller’s
intention to exercise such option. As soon as practicable but no more
than three days after such notification, the Buyer shall deliver the purchase
price for the Put Shares and the Seller shall return to the Buyer a stock power
and assignment endorsed in blank covering the transfer and assignment of the Put
Shares.
3. Seller’s Representations and
Warranties. The Seller hereby represents and warrants to the
Buyer as follows:
(a) The
Seller has the requisite legal power and authority to execute and deliver this
Agreement and to perform his obligations hereunder.
(b) The
Seller is the sole owner of the Shares and the Shares are free and clear of all
liens and encumbrances, and there are no restrictions on transfer of the Shares,
the Put Shares or the Call Shares. The Seller is and will be until
September 1, 2010, unless otherwise provided by this Agreement, the sole owner
of the Put Shares and the Call Shares.
(c) Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject, or to the Seller’s
best knowledge, any law or regulation, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Seller is a party or by which he is bound or to which
any of his assets is subject.
4. Buyer’s Representations and
Warranties. The Buyer hereby represents and warrants to the
Seller as follows:
(a) The
Buyer has the requisite legal authority and power to execute, deliver and
perform this Agreement and to perform his obligations hereunder.
(b) Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject, or to the Buyer’s
best knowledge, any law or regulation, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Buyer is a party or by which he is bound or to which
any of his assets is subject.
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5. Miscellaneous.
(a) All
notices, requests, and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given: when received, if delivered personally or by fax, or five
business days after such notice, request, demand claim or other communication is
sent, if sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth
below:
If
to the Seller:
Xx
Xxxxx
0000
Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx
Xxxxx, Xxxxxxxxxx 00000
|
If
to the Buyer:
Xxxx
X. Bagerdjian
0000
X. Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
|
Either
party may change the address to which notices, requests, and other
communications which are required or may be given under this Agreement are to be
delivered by giving the other party or parties notice in the manner set forth
above.
(b) The
terms and provisions of this Agreement shall be construed in accordance with,
and governed by, the internal laws of the State of California without regard to
principles of conflict of laws thereof.
(c) Each
of the Buyer and the Seller agree to execute and deliver all further documents,
agreements and instruments and to take such further action as may be necessary
or appropriate to carry out the purposes and intent of this
Agreement.
(d) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
(e) This
Agreement may be amended only by an agreement in writing of each
party. No waiver of any provision nor consent to any exception to the
terms of this Agreement shall be effective unless in writing and signed by the
party to be bound and then only to the specific purpose, extent and instance so
provided.
(f) In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Seller and the Buyer
and no presumption or burden of proof shall arise favoring or disfavoring either
the Seller or the Buyer by virtue of the authorship of any of the provisions of
this Agreement.
(g) The
descriptive headings of the sections of this Agreement are for convenience only
and do not constitute a part of this Agreement.
(h) Neither
this Agreement nor any rights or obligations hereunder are assignable, except by
an agreement in writing signed by each of the parties hereto. This
Agreement shall be binding upon and inure to the benefit of each party and its
successors and such permitted assigns.
(i) All
of the representations, warranties, covenants and obligations of the parties
contained in this Agreement shall survive the closing hereunder.
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(j) Any
dispute or controversy between the Seller and the Buyer in any way arising out
of, related to, or connected with this Agreement or the subject matter hereof,
shall be resolved through final and binding arbitration in Los Angeles,
California, pursuant to §§ 1282-1284.2 of the California Civil Procedure
Code (the “CCP”). The arbitration shall be before a single arbitrator
of the American Arbitration Association (unless, pursuant to applicable federal
employment law, rules or regulations a panel is required, in which case such
arbitration shall be before a panel mutually agreeable to the parties thereto)
who shall be mutually agreeable to the Seller and the Buyer, and the arbitration
shall be governed by the rules applicable thereto promulgated by the American
Arbitration Association. Notwithstanding anything in the
aforementioned sections of the CCP to the contrary, the parties shall be
permitted to conduct unlimited discovery (as if the subject matter of the
arbitration were pending before a superior court of the State of California in a
civil action which was not classified as a limited civil case) in accordance
with Chapter 2 of the CCP commencing with § 1985, and Article 3
of the CCP commencing with § 2016 of Chapter 3 of Title 3 of
Part IV. By this Agreement the parties have provided, in accord
with CCP § 1283.1, that CCP § 1283.05 is applicable to this Agreement,
except that the limitations on depositions set forth in CCP § 1283.05,
subdivision (e) do not apply to discovery in the event of an arbitrated
dispute under this Agreement.
(k) If
any party hereto brings an action or proceeding hereunder to enforce the terms
hereof, the prevailing party shall be entitled to recover from the other party
all of such prevailing party’s attorneys’ fees, costs and expenses incurred in
such action or proceeding.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
/s/ Xxxx X. Bagerdjian
|
Xxxx X. Bagerdjian |
/s/ Xx Xxxxx
|
Xx Xxxxx |
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EXHIBIT
A
SCHEDULE
OF PUT SHARES
Date
|
Dollar
Amount
Due
Each Period
|
Cumulative
Dollar
Amount
|
Share
Price
|
Number
of
Shares
Due
Each
Period
|
Cumulative
#
of
Shares
|
|||||||||||||||
September
15, 2009
|
$ | 400,000.00 | $ | 1.15 | 347,826 | |||||||||||||||
December
1, 2009
|
$ | 75,000.00 | $ | 475,000.00 | $ | 1.15 | 65,217 | 413,043 | ||||||||||||
January
2, 2010
|
$ | 75,000.00 | $ | 550,000.00 | $ | 1.15 | 65,217 | 478,261 | ||||||||||||
February
1, 2010
|
$ | 75,000.00 | $ | 625,000.00 | $ | 1.15 | 65,217 | 543,478 | ||||||||||||
March
1, 2010
|
$ | 75,000.00 | $ | 700,000.00 | $ | 1.15 | 65,217 | 608,696 | ||||||||||||
April
1, 2010
|
$ | 75,000.00 | $ | 775,000.00 | $ | 1.15 | 65,217 | 673,913 | ||||||||||||
May
1, 2010
|
$ | 75,000.00 | $ | 850,000.00 | $ | 1.15 | 65,217 | 739,130 | ||||||||||||
June
1, 2010
|
$ | 75,000.00 | $ | 925,000.00 | $ | 1.15 | 65,217 | 804,348 | ||||||||||||
July
1, 2010
|
$ | 75,000.00 | $ | 1,000,000.00 | $ | 1.15 | 65,217 | 869,565 | ||||||||||||
August
1, 2010
|
$ | 75,000.00 | $ | 1,075,000.00 | $ | 1.15 | 65,217 | 934,783 |
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