EXHIBIT 99.2
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "AGREEMENT"), dated as of October 24,
2003, is entered into by and among those certain stockholders of Thane
International, Inc., a Delaware corporation ("THANE"), who have signed the
signature pages hereto (each individually, a "STOCKHOLDER," and collectively,
the "STOCKHOLDERS") and Direct Marketing Holdings, Inc., a Delaware corporation
(the "CORPORATION").
RECITALS
WHEREAS, the Stockholders, who collectively have over a 90% ownership
interest in Thane, desire to contribute to the Corporation all of their stock
ownership in Thane as of the date hereof in consideration for proportionate
shares of the common stock, par value $.001 per share, of the Corporation (the
"SHARES");
WHEREAS, all of the Stockholders who are party to this Agreement shall
be obligated to execute a stockholders' agreement ("STOCKHOLDERS' AGREEMENT") in
the form of EXHIBIT B hereto; and
WHEREAS, the Corporation may from time to time add additional
Stockholders hereunder and/or issue additional Shares from time to time prior to
the closing date of the transactions contemplated hereby (the "CLOSING DATE").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
mutually covenant and agree as follows:
ARTICLE I
CONTRIBUTION
The Closing Date shall be the date determined by the Corporation, but
in no event later than February 15, 2004. On the Closing Date, the Stockholders
shall contribute, assign and transfer to the Corporation, and the Corporation
shall accept, all of their capital stock in Thane as set forth on EXHIBIT A
hereto (the "CONTRIBUTED SHARES"), as of the date hereof, free and clear of all
liens, claims, encumbrances and restrictions of any kind whatsoever, except as
noted on EXHIBIT A hereto. In addition, each of the Stockholders shall execute
the Stockholders' Agreement attached hereto as EXHIBIT B.
ARTICLE II
ISSUANCE OF SHARES
In consideration for the Stockholders' contribution of the Contributed
Shares to the Corporation pursuant to Article I, the Corporation hereby issues
the Shares as set forth on EXHIBIT A hereto to the Stockholders, free and clear
of any liens, claims, encumbrances and restrictions of any kind whatsoever, but
subject to the terms and conditions of the Stockholders' Agreement attached
hereto as EXHIBIT B.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder severally represents and warrants on behalf of itself
to and for the benefit of the Corporation:
3.1 DUE AUTHORIZATION. The Stockholder has full authority to enter into
this Agreement and the agreements contemplated hereby and to consummate the
transactions contemplated hereby and thereby. If the Stockholder is an entity,
the execution, delivery and performance of this Agreement and all other
agreements and transactions contemplated hereby have been duly authorized by
their Board of Directors, trustee or equivalent. This Agreement and all other
agreements contemplated hereby to be entered into by the Stockholders each
constitutes a legal, valid and binding obligation of the Stockholder enforceable
in accordance with its terms.
3.2 TITLE TO CONTRIBUTED SHARES. The Stockholder has good and valid
title to all Contributed Shares, free and clear of any encumbrances, charges,
equities or claims, except as noted on EXHIBIT A hereto. Upon delivery to the
Corporation of a physical certificate, endorsed to the Corporation, or the blank
stock powers referred to in Article V, the Corporation shall receive good and
valid title to all of the Contributed Shares free and clear of all liens,
encumbrances, charges, equities and claims, except as noted on EXHIBIT A hereto.
3.3 BROKERS. No broker or finder has been employed by the Stockholder
in connection with the negotiations relative to this Agreement. All negotiations
relative to this Agreement have been carried on directly by the Stockholder
without the intervention of any third party other than legal counsel or
accountants for the Stockholder.
3.4 DISTRIBUTIONS. The Shares to be acquired by the Stockholder
pursuant to this Agreement will be acquired for the Stockholder's own account
and not with a view to, or intention of, distribution thereof in violation of
the Securities Act of 1933, as amended (the "SECURITIES ACT"), or any applicable
state securities laws, and these Shares will not be disposed of in contravention
of the Securities Act, any applicable state securities laws or the Stockholders'
Agreement.
3.5 ACCREDITED INVESTOR. The Stockholder is an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act, except as disclosed in writing to the Corporation.
3.6 DOMICILE. The Stockholder is able to evaluate the risks and
benefits of the investment in the Shares. The Stockholder is domiciled in, and
the certificates representing the Shares purchased by the Stockholder pursuant
to this Agreement will come to rest in, the address set forth next to the
Stockholder's name on the signature pages hereto.
3.7 UNREGISTERED SECURITIES. The Stockholder is able to bear the
economic risk of his, her or its investment in the Shares for an indefinite
period of time and acknowledges that the Shares have not been registered under
the Securities Act and, therefore, cannot be sold unless subsequently registered
under the Securities Act or an exemption from such registration is
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available. Further, the Stockholder has carefully read the Stockholders'
Agreement and understands the restrictions on transfer contained therein.
3.8 MISCELLANEOUS. The Stockholder has had an opportunity to ask
questions and receive answers concerning the terms and conditions of the
offering of the Shares and has had full access to such other information
concerning the Corporation as he, she or it has requested. The Stockholder has
reviewed, or has had an opportunity to review, a copy of the Stockholders'
Agreement, and the Stockholder is familiar with the transactions contemplated
thereby. The Stockholder has also reviewed, or has had an opportunity to review,
the Corporation's certificate of incorporation and bylaws. The Stockholder
acknowledges and understands that (a) the Corporation is newly formed and has no
operating history, (b) it is unlikely that the Corporation will pay dividends in
respect of the Shares, (c) payment of dividends and distributions in respect of
the Shares is restricted by the financing documents that the Corporation or it
subsidiaries may enter into and may be restricted by future agreements or
instruments binding on the Corporation, its operating subsidiaries or its
properties, and (d) the Corporation and its subsidiaries may be significantly
leveraged. The decision of the Stockholder to purchase the Shares hereunder has
been made by the Stockholder independent of any other purchaser and independent
of any statements, disclosures or judgments as to the properties, business,
prospects or conditions (financial or otherwise) of the Corporation that may
have been made or given by any Stockholder or other person. The Stockholder
agrees and acknowledges that no other person has acted, is expected to act, or
will act as the agent or representative of such Stockholder in connection with
making, closing or monitoring of his, her or its investments hereunder. The
Stockholder acknowledges that he, she or it has been advised that an investment
in the Shares involves a high degree of risk and is suitable only for persons of
adequate financial means who have no need for liquidity with respect to this
investment and who can afford the risk of a complete loss of his, her or its
investment.
3.9 NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Stockholder does not and will not conflict with, violate or
cause a breach of any agreement, contract or instrument to which the Stockholder
is a party or any judgment, order or decree to which the Stockholder is subject.
3.10 ACKNOWLEDGEMENT OF LEGEND. Each Stockholder acknowledges and
agrees that each certificate evidencing the Shares and each certificate issued
in exchange therefor or upon the transfer of any the Shares shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCKHOLDERS'
AGREEMENT. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY
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THE HOLDER HEREOF AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS
WITHOUT CHARGE."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants to and for the benefit of the
Stockholders as follows:
4.1 CORPORATE ORGANIZATION, ETC. The Corporation is a corporation duly
organized, validly existing and in good standing under the laws of Delaware with
full corporate power and authority to carry on its business as it is now being
conducted, and to own, operate and lease its properties and assets. The
Corporation is duly qualified or licensed to transact business in good standing
in every jurisdiction in which the conduct of its business, the ownership or
lease of its properties require it to be so qualified or licensed. The
authorized capital stock of the Corporation consists of 45,000,000 shares of
common stock, $.001 par value per share, with a number of shares issued and
outstanding on the Closing Date as set forth on EXHIBIT A hereto. The Shares
issued under this Agreement are duly and validly authorized and issued, fully
paid and non-assessable and have not been issued in violation of any pre-emptive
or similar right of any person or of any federal or state law. In addition, the
Corporation intends to assume Thane's stock option plans and outstanding
warrants.
4.2 DUE AUTHORIZATION. The Corporation has full corporate power and
authority to enter into this Agreement and the agreements contemplated hereby
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and all other agreements
and transactions contemplated hereby have been duly authorized by the Board of
Directors (the "BOARD") of the Corporation. This Agreement and all other
agreements contemplated hereby to be entered into by the Corporation each
constitutes a legal, valid and binding obligation of the Corporation enforceable
in accordance with its terms.
4.3 BROKERS. No broker or finder has been employed by the Corporation
in connection with the negotiations relative to this Agreement. All negotiations
relative to this Agreement have been carried on directly by the Corporation
without the intervention of any third party other than legal counsel or
accountants for the Corporation.
ARTICLE V
DELIVERY OF DOCUMENTS
5.1 DOCUMENTS DELIVERED BY THE STOCKHOLDERS. Simultaneously with the
execution of this Agreement, each Stockholder shall deliver or cause to be
delivered to the Corporation the following:
(a) All their physical stock certificates of Thane, endorsed
by the Stockholder to transfer ownership to the Corporation; or, if such
Stockholder's stock is uncertificated, a duly executed stock power, as shall be
necessary or appropriate to vest in, convey or assign to the Corporation full,
complete, good and marketable title to the Contributed Shares; and
(b) An executed signature page to the Stockholders' Agreement.
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5.2 DOCUMENTS DELIVERED BY THE CORPORATION. The Corporation shall
deliver or cause to be delivered the following:
(a) The Shares to the Stockholders in the amounts set forth on
EXHIBIT A hereto;
(b) An executed signature page to the Stockholders' Agreement;
and
(c) Such other documents as are required to effectuate the
purposes hereof.
ARTICLE VI
INDEMNIFICATION
6.1 CORPORATE ACTION INDEMNIFICATION.
(a) The Corporation agrees to indemnify each Stockholder (each such
Stockholder, an "INDEMNITEE") from, hold each of them harmless against and
promptly upon demand pay or reimburse each of them for, any and all reasonable
costs, losses, liabilities, damages, or Expenses (as defined below) of any kind
or nature whatsoever (collectively, the "INDEMNITY MATTERS") that may be
incurred by them or asserted against or involve any of them as a result of
actions, suits, proceedings (including any investigations, litigation, or
inquiries), claims, demands, or causes of action (each, a "PROCEEDING"), arising
out of, or in any way related to (i) this Agreement or the transactions
contemplated by this Agreement or (ii) actions taken to merge Thane
International, Inc. into the Corporation or a subsidiary of the Corporation
(either (i) or (ii), "CORPORATE ACTIONS"), including, without limitation, claims
alleging breach of fiduciary or other duty, or other claims against a Indemnitee
relating to such Indemnitee's execution, delivery and performance of the
Corporate Actions.
For purposes of this Section 6, "EXPENSES" shall include attorneys'
fees and costs, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses in connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to any cost bond,
supersede as bond, or other appeal bond or its equivalent, and Expenses incurred
by any Indemnitee in commencing or pursuing a Proceeding against the Corporation
to enforce the rights to indemnification granted hereunder.
(b) ADVANCEMENT. Notwithstanding any provision of this Agreement to the
contrary, and to the fullest extent permitted by applicable law, the Corporation
shall advance the Expenses incurred by a Indemnitee (or reasonably expected by
the Indemnitee to be incurred by the Indemnitee within twelve months) in
connection with any Proceeding within ten (10) days after the receipt by the
Corporation of a statement or statements requesting such advances from time to
time, whether prior to or after final disposition of any Proceeding. Advances
shall be unsecured and interest free. Advances shall be made without regard to
the Indemnitee's ability to repay the Expenses and without regard to the
Indemnitee's ultimate entitlement to
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indemnification under the other provisions of this Agreement. Advances shall
include any and all reasonable Expenses incurred pursuing a Proceeding against
the Corporation to enforce the rights of advancement granted hereunder,
including Expenses incurred preparing and forwarding statements to the
Corporation to support the advances claimed. Unless required by law, no
undertaking to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Corporation under the
provisions of this Agreement shall be required as a condition of receiving any
Advance.
(c) INDEMNIFICATION PROCEDURE. Promptly after a Indemnitee has received
notice or has knowledge of any claim for indemnification hereunder, or the
commencement of any Proceeding by a third person, that the Indemnitee believes
in good faith is an indemnifiable claim under this Agreement, the Indemnitee
shall give the Corporation written notice of such claim or the commencement of
such action or proceeding, but failure so to notify the Corporation will not
relieve the Corporation of any liability which it may have to such Indemnitee
hereunder except to the extent that the Corporation is materially prejudiced by
such failure. Such notice shall state the nature and the basis of such claim.
The Corporation shall have the right to defend and settle, at its own expense
and by its own counsel, any such matter.
(d) MULTIPLE INDEMNITEES. If more than one Indemnitee makes a claim for
indemnification hereunder due to a Proceeding arising out of the same Corporate
Action, the Corporation shall in its discretion defend such Indemnitees jointly,
unless the interests of an Indemnitee in such joint defense shall be, in the
reasonable discretion of the Board, clearly adverse to the interests of another
Indemnitee. Each of the Indemnitees hereby agrees to cooperate with any joint
defense.
(e) NOTIFICATION. If the Corporation determines to defend or settle, it
shall promptly notify the Indemnitee of its intention to do so, and the
Indemnitee shall cooperate with the Corporation and its counsel in all
commercially reasonable respects in the defense thereof and the settlement
thereof. Such cooperation shall include, but shall not be limited to, furnishing
the Corporation with any books, records and other information reasonably
requested by the Corporation and in the Indemnitee's possession or control. Such
cooperation of the Indemnitee shall be at the cost of the Corporation. After the
Corporation has notified the Indemnitee of its intention to undertake to defend
or settle any such asserted liability, the Corporation shall not be liable for
any additional legal expenses incurred by the Indemnitee in connection with any
defense or settlement of such asserted liability; provided, however, that the
Indemnitee shall be entitled (i) at its expense, to participate in the defense
of such asserted liability and the negotiations of the settlement thereof or
(ii) if (A) the Corporation has failed to assume the defense and employ counsel
or (B) if the defendants in any such action include both the Indemnitee and the
Corporation and counsel to the Indemnitee shall have concluded that there may be
reasonable defenses available to the Indemnitee that are different from or
additional to those available to the Corporation or if the interests of the
Indemnitee reasonably may be deemed to conflict with the interests of the
Corporation, then the Indemnitee shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the
defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the Corporation
as incurred, and the Corporation shall not settle any such claim without the
consent of the Indemnitee unless the settlement thereof imposes
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no liability or obligation on, and includes a complete release from liability
of, the Indemnitee. If the Indemnitee undertakes such a defense through counsel
of its choice, the Indemnitee may settle such matter, and the Corporation shall
reimburse the Indemnitee for the amount paid in such settlement and any other
liabilities or expenses incurred by the Indemnitee in connection therewith.
6.2 SURVIVAL. The indemnification provided for under this Section 6
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnitee or any officer, director or controlling person of
such Indemnitee and shall survive the transfer of securities. The Corporation
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Corporation's
indemnification is unavailable for any reason.
ARTICLE VII
MISCELLANEOUS
7.1 NOTICES. All notices, demands or communication under this Agreement
must be in writing, and shall be deemed to have been effectively given when: (i)
personally delivered; (ii) two (2) days after posting in the United States mails
via prepaid, certified mail, return receipt requested; or, (iii) one (1) day
after dispatch via overnight courier service, addressed as follows:
If to the Stockholders: to the addresses provided on the signature
page hereto.
If to the Corporation: Direct Marketing Holdings, Inc.
0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to: H.I.G. Direct Marketing Holdings, Inc.
c/o H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx -- 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
and a copy to: H.I.G. Capital LLC
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
or to any other address as any party may designate by written notice to the
other parties.
7.2 AMENDMENT AND MODIFICATION. No amendment or modification to this
Agreement shall be binding on any party, unless the amendment or modification is
in writing and executed by all of them with the same formality as this
Agreement; provided, however, that if any additional holder of the common stock
or options to acquire stock of Thane International, Inc.
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shall become a Stockholder after the date of effectiveness of this Agreement,
such addition shall not be considered an amendment or modification of this
Agreement.
7.3 SUCCESSORS. This Agreement shall be binding upon the parties, their
heirs, administrators, successors, executors and assigns. The parties agree that
they and their respective heirs, executors, successors, administrators and
assigns will execute any and all instruments, releases, assignments and consents
that may be reasonably required of them to execute the provisions of this
Agreement.
7.4 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall serve as an original for all purposes, but all
copies of which shall constitute but one and the same Agreement.
7.5 HEADINGS. All headings set forth in this Agreement are intended for
convenience only and shall not control or affect the meaning, construction or
effect of this Agreement or of any of its provisions.
7.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with respect to the contemplated transactions, and it is agreed
that any prior oral or written agreements are null and void.
7.7 SEVERABILITY. The invalidity of any one or more of the words in
this Agreement shall not affect the enforceability of the remaining portions of
this Agreement, all of which are inserted conditionally on their being valid in
law. In the event that any one or more of the words contained in this Agreement
shall be declared invalid, this Agreement shall be construed as if the invalid
word or words had not been inserted, but if an invalidity shall be caused by the
length of time or the size of an area that is set forth in this Agreement, then
the otherwise invalid period of time or area, or both, shall be considered to be
reduced to the longest time or largest area that would cure the invalidity.
7.8 NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties and their respective heirs, personal representatives,
legal representatives, successors and assigns, any rights or remedies under or
by reason of this Agreement.
7.9 PREVAILING PARTY. If the parties to this Agreement are forced to
institute legal proceedings to enforce their rights in accordance with the
provisions of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing parties its reasonable attorneys' fees, costs and
expenses incurred in enforcing its rights, at pre-trial, trial and appellate
levels. This provision shall survive closing.
7.10 CONSTRUCTION. This Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Agreement to be drafted, including any presumption of superior knowledge or
responsibility based upon a party's business or profession or any professional
training, experience, education or degrees of any member, agent, officer or
employee of any party. If any words in this Agreement have been stricken out or
otherwise eliminated (whether or not any other words or phrases have been added)
and the stricken words initialed by the party against whom the words are
construed, this
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Agreement shall be construed as if the words so stricken out or otherwise
eliminated were never included in this Agreement and no implication or inference
shall be drawn from the fact that those words were stricken out or otherwise
eliminated.
7.11 GENDER AND TERMINOLOGY. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other applicable
genders, the singular shall include the plural, and vice versa. Titles of
articles, exhibits, schedules, table of contents and sections are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
7.12 NO WAIVER. No failure of any party to exercise any power given
that party under this Agreement or to insist upon strict compliance by the other
party to its obligations under this Agreement, and no custom or practice of the
parties in variance with the terms of this Agreement shall constitute a waiver
of any party's right to demand exact compliance with the terms of this
Agreement.
7.13 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
regard to its conflicts of laws principles.
7.14 SCHEDULES, EXHIBITS, SECTIONS AND ARTICLES. All exhibits or
schedules attached to this Agreement shall be deemed part of this Agreement and
incorporated into this Agreement, as if fully contained in it. All references in
this Agreement to an exhibit, section, article or schedule shall mean an
exhibit, section, article or schedule to this Agreement (unless otherwise
indicated). All references in this Agreement to this Agreement shall include all
of the exhibits or schedules attached to this Agreement.
7.15 JURISDICTION; VENUE; INCONVENIENT FORUM; WAIVER OF JURY TRIAL. ANY
SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY JUDGMENT
ENTERED BY ANY COURT IN RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS
OF THE STATE OF DELAWARE, AND THE PARTIES ACCEPT THE EXCLUSIVE PERSONAL
JURISDICTION OF THOSE COURTS FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING.
IN ADDITION, THE PARTIES KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY NOW OR LATER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR ANY JUDGMENT ENTERED BY ANY COURT BROUGHT IN THE
STATE OF DELAWARE, AND FURTHER, KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE
ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF DELAWARE
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY WAIVES ALL RIGHTS TO ANY
TRIAL BY JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT.
THIS PROVISION SHALL SURVIVE CLOSING.
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7.16 FURTHER ASSURANCES. Each of the Stockholders and the Corporation,
at the closing of the transactions contemplated hereby, or at any time or times
thereafter, upon request of any party hereto, will execute such additional
instruments, documents or certificates as either party deems reasonably
necessary in order to effect the transactions contemplated hereby.
7.17 ENFORCEABILITY. This Agreement shall be enforceable against the
Corporation when the Corporation and one or more Stockholders executes a
counterpart signature page hereto. This Agreement shall be enforceable against
the Corporation as to each additional Stockholder upon its execution of a
counterpart signature page hereto.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Contribution
Agreement to be executed as of the date first above written.
DIRECT MARKETING HOLDINGS, INC.
By: /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx Xxxxx
Title: President
H.I.G. DIRECT MARKETING HOLDINGS, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and Secretary
Address: c/o H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx,
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
KPI, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and Secretary
Address: c/o H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx,
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
DESERT VALUE HOLDINGS, INC.
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and Secretary
Address: c/o H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx,
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
[Signature Page to Contribution Agreement]
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/s/ XXXXX XXXXX
-----------------------------------------
Xxxxx Xxxxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
/s/ XXXX XXXXXX
-----------------------------------------
Xxxx Xxxxxx
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
/s/ XXXXXX XXXXXXX-XXX
-----------------------------------------
Xxxxxx XxXxxxx-Xxx
Address: 00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
/s/ XXXXXXX X. XXX
-----------------------------------------
Xxxxxxx X. Xxx
Address: 00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
THE HAY FAMILY GENERATION SKIPPING TRUST
By: /s/ REMUS HASTE
-------------------------------------
Name: Remus Haste
Title: Trustee
Address: 00-000 Xxxx Xxxxx, Xxxxx X
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
/s/ XXXXX XXXX
-----------------------------------------
Xxxxx Xxxx
Address: 00 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
[Signature Page to Contribution Agreement]
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/s/ XXXXXX XXXXX
-----------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxx Xxxx Xxxxxxxxx, #000
Xxxxx, Xxxxxxxxxxxx 00000
/s/ XXXX XXXXX
-----------------------------------------
Xxxx Xxxxx
Address: c/o Krane Products, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000-X
Xxxx Xxxxx, Xxxxxxx 00000
/s/ XXXXXX XXXXX
-----------------------------------------
Xxxxxx Xxxxx
Address: c/o Krane Products, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000-X
Xxxx Xxxxx, Xxxxxxx 00000
/s/ XXXXX XXXXXXX
-----------------------------------------
Xxxxx Xxxxxxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
/s/ XXXX XXX
-----------------------------------------
Xxxx Xxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
[Signature Page to Contribution Agreement]
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/s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx
Address: XxxXxxXxxx.Xxx
00000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
/s/ XXX XXXXXX
-----------------------------------------
Xxx Xxxxxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
/s/ J. XXXXXX XXXXXXX
-----------------------------------------
J. Xxxxxx Xxxxxxx
Address: Xxxx Xxxxxxx International Inc.
0 Xxxxx Xxxxx-Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx X0X 0X0
Xxxxxx
/s/ XXXX XXXXXX
-----------------------------------------
Xxxx Xxxxxx
Address: 000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
/s/ AMIR TUKULJ
-----------------------------------------
Amir Tukulj
Address: 0000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
[Signature Page to Contribution Agreement]
-14-
/s/ XXXXXX XXXX
-----------------------------------------
Xxxxxx Xxxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
/s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
Address: XxxXxxXxxx.Xxx
00000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
/s/ XXXXXXX XXXXXXXX
-----------------------------------------
Xxxxxxx Xxxxxxxx
Address: c/o Amir Tukulj
0000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
/s/ XXXXXX XXXXX
-----------------------------------------
Xxxxxx Xxxxx
Address: c/o Xxxxxxx X. Xxx
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
[Signature Page to Contribution Agreement]
-15-
/s/ XXXXXX XXXXXX
-----------------------------------------
Xxxxxx Xxxxxx
Address: c/o Thane Direct U.K. Ltd.
00-00 Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
[Signature Page to Contribution Agreement]
-16-
EXHIBIT A
CONTRIBUTED SHARES
Number of
Number of Thans Shares Corporation Shares
Stockholder Contributed Encumbrances to be Issued
----------- ---------------------- ------------ ------------------
H.I.G. Direct Marketing Holdings, 20,724,253 20,724,253
Inc.
KPI, Inc. 1,330,953 1,330,953
Desert Value Holdings, Inc. 1,400 1,400
Xxxxx Xxxxx 11,488 11,488
Xxxx Xxxxxx 39,357 39,357
Xxxxxx XxXxxxx-Xxx 4,543,964 4,543,964
Xxxxxxx X. Xxx 4,543,964 4,543,964
The Hay Family Trust 441,000 441,000
Xxxxx Xxxx 19,000 19,000
Xxxxxx Xxxxxx 1,220 1,220
Xxxxxx Xxxxx 45,760 45,760
Xxxx Xxxxx 457,030 457,030
Xxxxxx Xxxxx 457,030 457,030
Xxxxx Xxxxxxx 35,456 35,456
Xxxx Xxx 22,912 22,912
Xxxxxxx Xxxxxx 47,247 47,247
Xxx Xxxxxx 22,912 22,912
J. Xxxxxx Xxxxxxx 13,200 13,200
Xxxx Xxxxxx 85,760 85,760
Amir Tukulj 640,000 640,000
Xxxxxx Xxxx 6,880 6,880
Xxxxx X. Xxxxxx 47,247 47,247
Xxxxxxx Xxxxxxxx 4,575 4,575
Xxxxxx Xxxxx 27,792 27,792
---------- ----------
33,570,400 33,570,400
========== ==========
-17-
EXHIBIT B
FORM OF STOCKHOLDERS AGREEMENT
See attached.
-18-
