EXHIBIT 99.A
OPTION AGREEMENT
This OPTION AGREEMENT, dated as of May 21, 2001 (the "Agreement"), is by
and between Xxxx XxXxxx, Trustee of 1982 Xxxx and Xxxxxx XxXxxx Trust (the
"Optionor") and Xxxxxxx X. Xxxxxxxxx and/or his assigns (the "Optionee"). Each
of Optionor and Optionee are also hereafter referred to individually as a
"Party" and collectively as the "Parties".
WHEREAS, Optionor owns 623,782 shares of common stock, par value U.S. $0.04
per share (the "Company Shares"), of BCT International, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, Optionor desires to grant to Optionee an option (the "Option") to
purchase all of the Company Shares upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Definitions. Capitalized terms used in this Agreement
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shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any Person at any time, any
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other Person that, alone or together with any other Person, directly or
indirectly through one or more intermediaries controls, or is controlled by or
is under common control with, such Person. For purposes of this definition,
"control" (including the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Persons shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership of voting
securities, by contract, agency or otherwise. Without limiting the generality
of the foregoing, shareholders, partners, officers and directors of any Person
shall be deemed to be Affiliates of any such Person.
"Applicable Law" shall mean all applicable constitutions, treaties,
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statutes, laws, ordinances, rules, regulations, directives, administrative
requirements, codes, orders, judgements, injunctions, decrees and by-laws of any
Governmental Authority.
"Business Day" shall mean (a) any day excluding Saturday, Sunday and
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any day which shall be a legal holiday in California or (b) a day on which
commercial banks in California are authorized or required by law or other
government actions to close.
"Company Shares" shall have the meaning specified in the recitals
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hereto.
"Exercise Notice" shall have the meaning specified in Section 2.1(a)
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herein.
"Exercise Price" shall have the meaning specified in Section 2.1
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herein.
"Expenses" shall have the meaning specified in Section 7.1 herein.
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"Governmental Authority" shall mean any national, state, regional,
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local or other government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal or judicial body of the United
States, any other country or any other jurisdiction or subdivision of the United
States or such other country.
"Indemnified Parties" shall have the meaning specified in Section 7.1
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herein.
"Indemnifying Parties" shall have the meaning specified in Section 7.2
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herein.
"Lien" as to any Person, shall mean any mortgage, lien, pledge,
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charge, claim, preferential payment arrangement, security interest, agreement,
other encumbrance, or preferential agreement having the effect of constituting a
security interest, including without limitation, any equivalent interest or
right created or arising under the laws of any country where the Person owns
property.
"Losses" shall have the meaning specified in Section 7.1 herein.
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"Note" shall mean that certain Promissory Note, in substantially the
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form of Exhibit "A" hereto, executed by the Optionor in the amount of the
aggregate Exercise Price and payable to the Optionee.
"Option" shall have the meaning specified in Section 2.1(a) herein.
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"Option Closing" shall have the meaning specified in Section 2.1(a)
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herein.
"Option Exercise Period" shall have the meaning specified in Section
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2.1(a) herein.
"Optionee Indemnified Parties" shall have the meaning specified in
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Section 7.1 herein.
"Optionor Indemnified Parties" shall have the meaning specified in
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Section 7.1 herein.
"Person" shall mean any natural person, corporation, association,
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partnership, organization, business, firm, joint venture, trust, unincorporated
organization or any other entity or organization, including a government, or any
political subdivision, department or agency of any government.
"Rights" shall have the meaning specified in Section 3.3 herein.
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"Securities Act" shall mean the United Stated Securities Act of 1933,
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as amended.
1.2. Other Terms. Other terms may be defined elsewhere in the text of
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this Agreement and, unless otherwise indicated, shall have such meaning
throughout this Agreement.
1.3. Other Definitional Provisions. The words "hereof," "herein," and
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"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any particular provision of this Agreement. The terms defined in the
singular shall have a comparable meaning when used in the plural, and vice
versa.
1.4. Titles and Subtitles. The titles of the paragraphs and
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subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
ARTICLE II
OPTION
2.1. Option. For $10.00 and other good and valuable consideration
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the receipt of which is hereby
acknowledged, Optionor hereby grants to Optionee an unconditional, irrevocable
option (the "Option") to purchase all of the Company Shares, for a per share
price equal to U.S.$1.75 (the "Exercise Price").
(a) Optionee may exercise the Option in whole at any time or from
time to time beginning 90 days from the date of this Agreement until ten
Business Days thereafter (the "Option Exercise Period"). In the event Optionee
desires to exercise the Option, it will deliver to Optionor a written notice of
exercise (the "Exercise Notice") within the Option Exercise Period and setting a
date for the closing (the "Option Closing") under the Option, which date shall
be five Business Days from the date of the Exercise Notice.
(b) The Option Closing shall occur at the offices of Xxxxxx & Xxxxx,
P.A., or such other place as the Parties shall agree. At the Option Closing,
Optionee shall deliver to the Optionor the Note evidencing payment of the
aggregate Exercise Price. The Optionor shall take all further actions requested
by Optionee to transfer and register ownership of the Company Shares in the name
of Optionee.
2.2. Equitable Adjustment. Notwithstanding anything to the contrary,
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the number and type of Company Shares subject to the Option and rights of
Optionee hereunder shall be equitably adjusted in the event of a merger,
consolidation, recapitalization, stock split, stock swap, stock dividend, other
distribution or transaction with respect to the Company or the Company Shares.
Optionee shall have the right to purchase any securities, cash or other assets
into which or for which the Company Shares (or any subsequent securities or
assets) are converted or otherwise exchanged pursuant to any of the foregoing
transactions under the same terms and conditions of the Option.
2.3. Dividends and other Distributions. Notwithstanding anything else
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contained herein, all dividends and other distributions (whether payable in
cash, stock or other securities of the Company) declared or payable prior to the
exercise of the Option in respect of any Company Shares shall be paid to
Optionor.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF OPTIONOR
Optionor represents and warrants to Optionee as follows:
3.1. Ownership of Company Shares. Optionor directly owns, and will
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directly own at all times prior to the exercise of the Option, all of the
Company Shares, free and clear of all Liens. Additionally, after the exercise
of the Option, Optionee shall be the legal and record owner of the Shares, and
shall be entitled to vote the Shares, to receive dividends and other
distributions thereon (including interest); and to enjoy all other rights and
privileges incident to the ownership of the Shares.
3.2. Authority to Perform and Execute; Binding Nature. Optionor has
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all requisite right, power and authority and full legal capacity to enter into
this Agreement, to carry out his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Optionor and constitutes a legal, valid and binding obligation
of the Optionor enforceable against Optionor in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency
(including without limitation all laws relating to fraudulent transfers),
moratorium, restructuring or similar laws affecting creditors' rights and
remedies generally.
3.3. Shareholders' Agreements. There are no existing options,
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warrants, calls, preemptive rights, rights of first refusal or offer,
subscriptions or other rights, agreements, arrangements or commitments of any
character, relating to the Company Shares and there are no outstanding
contractual obligations to repurchase, redeem or otherwise acquire any Company
Shares (collectively, "Rights").
3.4. Capitalization; No Liens. All the Company Shares have been duly
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authorized and are validly
issued, fully paid and nonassessable and have been issued, offered and sold in
compliance with all Applicable Laws concerning the issuance of securities and
have not been issued, offered or sold subject to or in violation of any Rights.
Upon the delivery of the Company Shares to Optionee, at the Option Closing,
Optionee will own the Company Shares, free and clear of all Liens.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF OPTIONEE
Optionee hereby represents and warrants to Optionor:
4.1. Authority to Perform and Execute; Binding Nature. Optionee has
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all requisite right, power and authority and full legal capacity to enter into
this Agreement, to carry out his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Optionee and constitutes a legal, valid and binding obligation of
Optionee, enforceable against the Optionee in accordance with its terms, subject
to the effect of any applicable bankruptcy, reorganization, insolvency
(including without limitation all laws relating to fraudulent transfers),
moratorium, restructuring or similar laws affecting creditors' rights and
remedies generally.
4.2. Securities Act. Optionee is purchasing the Company Shares
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solely for his own account as an investment and not with a view to any
distribution or resale of the Company Shares in any manner that would be in
violation of the Securities Act.
4.3. Investment Experience; No Reliance. Optionee is an "accredited
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investor" as such term is defined for purposes of Securities Act. Optionee
acknowledges that it is able to fend for itself, and bear the economic risk of
its investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Company Shares. Optionee further represents that it has had an
opportunity to ask questions and receive answers from the Optionor regarding the
Company Shares and the condition of the Company.
ARTICLE V
CERTAIN COVENANTS
5.1. Waivers. On or before the Option Closing, the Parties shall use
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their best efforts to obtain the appropriate waivers or releases necessary to
execute, deliver and perform each of their obligations under this Agreement,
including, without limitation, the sale, conveyance, assignment, transfer and
delivery of the Company Shares to Optionee pursuant to the terms of this
Agreement.
5.2. Ownership of Company Shares. Optionor shall own at all times
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all of the Company Shares until the expiration of the Option Exercise Period,
and shall take no action to alienate the Company Shares.
5.3. Transfer of Company Shares. Optionor shall take any and all
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actions to deliver and transfer, on the date of the Option Closing, in
accordance with the terms of this Agreement, possession of the Company Shares to
Optionee, free and clear of all Liens.
5.4. Parties' Covenants. The Parties hereto covenant and agree that,
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at all times from and after the date hereof, they will comply with all covenants
and provisions of this Agreement.
ARTICLE VI
CONDITIONS TO THE OPTION CLOSING
6.1. Conditions to the Obligations of Optionee at the Option Closing.
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The obligations of Optionee at the Option Closing are subject to the fulfillment
or waiver by Optionee, prior to or at the Option Closing, of the following
conditions:
(a) Representations and Warranties. The representations and
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warranties of Optionor contained in this Agreement shall be true and correct in
all material respects when made, at the time of the Option Closing.
(b) Performance. Optionor shall have performed and complied
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with all of its obligations under this Agreement.
(c) Consents and Waivers. Optionor shall have obtained any and
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all consents, permits and waivers, approvals or authorizations of all third
parties and Governmental Authorities required in connection with the execution
and delivery of this Agreement, and the consummation of the transactions
contemplated hereby.
(d) No Order. There shall not (i) be in effect any statute,
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regulation, order, decree or judgment of any Governmental Authority which makes
illegal or enjoins or prevents the consummation of the transactions contemplated
by this Agreement or (ii) have been commenced or threatened any action or
proceeding by any Governmental Authority which seeks to prevent or enjoin the
transactions contemplated by this Agreement.
6.20. Conditions to the Obligations of Optionor at the Option Closing.
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The obligations of Optionor at the Option Closing are subject to the fulfillment
or waiver by Optionor prior to or at the Option Closing, of the following
conditions:
(a) Representations and Warranties. The representations and
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warranties of the Optionee contained in this Agreement shall be true and correct
in all material respects when made and at the time of the Option Closing.
(b) Performance. Optionee shall have performed and complied
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with all of its obligations under this Agreement.
(c) No Order. There shall not (i) be in effect any statute,
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regulation, order, decree or judgment of any Governmental Authority which makes
illegal or enjoins or prevents the consummation of the transactions contemplated
by this Agreement or (ii) have been commenced or threatened any action or
proceeding by any Governmental Authority which seeks to prevent or enjoin the
transactions contemplated by this Agreement.
(d) Initial Payment under Note. At the Option Closing, the
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Optionee shall pay to the Optionor $45,484.10 by cashiers' check or wire
transfer of funds.
ARTICLE VII
INDEMNIFICATION
7.1. Indemnification. Optionor shall indemnify, defend and hold
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harmless Optionee, its employees, Affiliates, controlling persons, agents and
representatives and any family relations thereof and their successors and
assigns (collectively, the "Optionee Indemnified Parties") from and against any
and all losses, claims, damages, liabilities, obligations, penalties, judgments,
awards, costs, expenses and disbursements (and any and all actions, suits,
proceedings and investigations in respect thereof and any and all reasonable
legal and other costs, reasonable expenses or disbursements in giving testimony
or furnishing documents in response to a subpoena or otherwise) (collectively,
"Losses"), including, without limitation, the reasonable costs, expenses and
disbursements as and when incurred, of investigating, preparing or defending any
such action, suit, proceeding or investigation (whether or
not in connection with litigation in which the party requesting indemnification
is a party), directly or indirectly, caused by, relating to, based upon, arising
out of or in connection with litigation in which the party requesting
indemnification in connection with the breach in any material respect of any
representations, warranties, covenants or agreements as set forth in this
Agreement or other agreements and instruments referred to herein (collectively,
"Expenses"). Optionee shall indemnify, defend and hold harmless Optionor, its
shareholders, directors, officers, employees, Affiliates, controlling persons,
agents and representatives and any family relations thereof and their successors
and assigns (collectively, the "Optionor Indemnified Parties" and which along
with the Optionee Indemnified Parties, may be referred to as the "Indemnified
Parties") from and against any and all Losses and Expenses. No election by an
Indemnified Party or commencement or completion of any action by an Indemnified
Party shall act as a bar or a defense to an Indemnified Party proceeding to seek
indemnification from any other Person pursuant to this Section 7.1.
7.2. Indemnification Procedures; Third Party Claims. An Indemnified
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Party shall give the party from which indemnification under this Article VII is
sought (the "Indemnifying Party") prompt written notice following actual
knowledge of any claim, assertion, event or proceeding concerning any liability
or damage as to which the Indemnified Party may request indemnification from the
Indemnifying Parties hereunder; provided, however, that any failure by the
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Indemnified Party to notify he Indemnifying Parties shall not relieve he
Indemnifying Parties from their respective obligations hereunder, or from any
other obligation or liability that the Indemnifying Parties may have to the
Indemnified Party unless such failure materially prejudices the Indemnifying
Parties. Upon such written notice of any such action or proceeding, the
Indemnifying Parties may assume the defense thereof at their own expense with
counsel chosen by such Indemnifying Parties; provided, however, such counsel
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shall be subject to the prior reasonable approval of the Indemnified Party. If
the Indemnifying Parties do not timely provide such defense for the Indemnified
Party, with respect to any action, suit, proceeding or investigation to which
any Indemnified Party is also a party, the Indemnified Party may assume the
defense thereof with counsel chosen by the Indemnified Party, at the reasonable
expense of he Indemnifying Parties. In the circumstances referred to in the
immediately preceding sentence, if the Indemnified Party does not assume such
defense, the Indemnifying Parties, shall not, without the prior written consent
of the Indemnified Party, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such settlement,
compromise or consent includes, as an unconditional term thereof, the giving by
the claimant to the Indemnified Parties, of an unconditional release from all
liability in respect of such claim.
ARTICLE VIII
MISCELLANEOUS
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8.1. Survival of Representations and Warranties; Severability. All
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representations and warranties made by Optionee and Optionor contained in this
Agreement or other agreement delivered pursuant hereto or made in writing by or
on behalf of Optionee or Optionor in connection with the Option otherwise shall
survive the execution and delivery of this Agreement.
8.2. Descriptive Headings. The descriptive headings of the several
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sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
8.3. Consent to Jurisdiction. Any action or proceeding against any
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Party relating in any way to this Agreement may be brought and enforced in the
courts of the State of California or federal courts of the United States for the
Central District of California at Riverside, and each Party hereby irrevocably
submits to the jurisdiction of each such court in respect of any such action or
proceeding. Any service of such process or summons may be served by mailing a
copy thereof by registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notice hereunder.
(a) Each Party irrevocably waives, to the fullest extent
permitted by Applicable Law, any objection that it may now or hereafter have to
the laying of venue of any such action or proceeding in the courts of the State
of California or federal courts of the United States for the Central District of
California at Riverside and any claim that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(b) Each Party further irrevocably waives, to the fullest extent
permitted by Applicable Law, any claim that any action or proceeding commenced
by any other Party in California relating in any way to this Agreement should be
dismissed or stayed by reason, or pending the resolution of, any action or
proceeding commenced by Optionee (other than in a court referred to in Section
8.3(a)) relating in any way to this Agreement, whether or not commenced earlier.
To the fullest extent permitted by Applicable Law, each Party shall take all
measures necessary for any such action or proceeding commenced by any other
Party in California to proceed to judgment prior to the entry of judgment in any
such action or proceeding commenced by such Party. Each Party agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Each Party hereto irrevocably waives any right it may now or
hereafter have to a trial by jury in respect of this Agreement.
8.4. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with, and the rights of the Parties shall be governed
by, the laws of the State of California, without regard to the principles of
conflicts of law.
8.5. Severability. In the event that any one or more of the
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provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
Parties shall negotiate in good faith with a view to the substitution therefor
of a suitable and equitable solution in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid provision;
provided, however, that the validity, legality and enforceability of any such
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provision in every other respect and of the remaining provisions contained
herein shall not be in any way impaired thereby, it being intended that all of
the rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
8.6. Entire Agreement. This Agreement, together with the other
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agreements referred to herein, is intended by the Parties hereto as a final and
complete expression of their agreement and understanding in respect to the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings, written or oral, between the Parties with respect to such
subject matter.
8.7. Counterparts; Facsimile. This Agreement may be executed in two
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or more counterparts (including by facsimile), each of which shall be deemed an
original, but all of which together shall constitute one instrument.
8.8. Delays or Omissions. No delay or omission to exercise any right,
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power or remedy on the part of any Party upon any breach or default of any other
Party to this Agreement shall impair any such right, power or remedy, nor shall
it be construed to be a waiver of any such breach or default, or any
acquiescence therein, or if in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. It
is further agreed that any waiver, permit, consent or approval of any kind or
character on the part of any Party of any breach or default under this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing and that all remedies either under this Agreement, or by
law otherwise afforded to any Party, shall be cumulative and not alternative.
8.9. Fees and Expenses. Whether or not this Agreement and the
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transactions contemplated hereby are consummated, and except as otherwise
expressly set forth herein, all costs and expenses (including legal and
financial advisory fees and expenses) incurred in connection with, or in
anticipation of, this Agreement and the transactions contemplated hereby shall
be paid by the Party incurring such expenses.
8.10. Binding Nature of Agreement. This Agreement shall be binding
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upon and inure to the benefit of and be enforceable by the Parties hereto, their
successors and permitted assigns.
8.11. Assignment. None of Optionor and Optionee may assign or transfer
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this Agreement or any of their respective rights hereunder without the prior
written consent of the other Party.
8.12. Amendment and Waiver. Any provision of this Agreement may be
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amended if, but only if, such amendment is in writing and is signed by all the
Parties. Any provision may be waived if, but only if, such waiver is in writing
and is signed by or on behalf of the Party waiving such provision.
8.13. Third Party Beneficiaries. Nothing in this Agreement shall
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convey any rights upon any Person or entity which is not a party to this
Agreement.
8.14. Notices. All notices and other communications given or made
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pursuant hereto or pursuant to any other agreement among the parties, unless
otherwise specified, shall be in writing and shall be deemed to have been duly
given or made if sent by facsimile transmission (with confirmation in writing),
delivered personally or by courier to the parties at the facsimile transmission
number or address set forth below or at such other numbers or addresses as shall
be furnished by the parties by like notice, and such notice or communication
shall be deemed to have been given or made upon receipt:
If to Optionor, to:
Xxxx XxXxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Law Offices of Xxxxxxx X. Xxxxxxxx
0000 X Xxxxxxxx Xxxxxx Xxx Xxxxx X0
Xxxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Optionee, to:
Xxxxxxx X. Xxxxxxxxx
BCT International, Inc.
0000 X.X. 00xx Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx & Zeder, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8.15. Specific Performance. Without limiting the rights of each Party
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hereto to pursue all other legal and equitable rights available to such Party
for any other Parties' failure to perform their obligations under this
Agreement, the Parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them shall be entitled to specific performance, injunctive relief or
other equitable remedies in the event of any such failure. To the extent any of
the Parties may be entitled to the benefit of any provision of law requiring any
party in any suit, action or proceeding arising out of or in connection with
this Agreement or any of the transactions contemplated hereby to post security
for litigation costs or otherwise post a performance bond or guaranty or to take
any similar action, each Party hereby irrevocably waives such benefit, in each
case to the fullest extent now or hereafter permitted under the laws of any such
other jurisdiction.
8.16. Prevailing Party. In the event of a dispute under this
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Agreement, the prevailing party shall be entitled to recover from the other
party, its reasonable attorneys' fees and related costs, at all trial and
appellate levels.
8.17. Construction. The parties have participated jointly in the
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negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
specifications of any dollar amount in the representations and warranties or
otherwise in this Agreement is not intended and shall not be deemed to be an
admission or acknowledgment of the materiality of such amounts or items, nor
shall the same be used in any dispute or controversy between the parties to
determine whether any obligation, item or matter (whether or not described
herein or included in any schedule) is or is not material for purposes of this
Agreement.
8.18. Further Actions. The parties shall execute and deliver any other
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instruments or documents and take any further actions after the execution of
this Agreement, which may be reasonably required for the implementation of this
Agreement and the transactions contemplated hereby.
8.19. Confidentiality. Except as required by law or by any stock
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exchange, none of the Parties hereto shall disclose to any Person, issue any
press release or make any other public statement or announcement relating to or
connected with or arising out of this Agreement or the matters contained herein
without obtaining the prior written approval of the other Party hereto to the
contents and the manner of presentation and publication thereof. If disclosure
is required by law or by any stock exchange, the disclosing Party shall consult
in advance with the other Party hereto and shall provide such Party with a copy
of the proposed statement or announcement and attempt in good faith to reflect
such other Parties' concerns in the required disclosure. The foregoing shall
not be construed to prohibit disclosure (a) to any Affiliate of the Parties; (b)
in connection with any action or proceeding to which a Party or any of its
Affiliates, officers or directors is a Party; (c) to the Parties' respective
legal counsel, auditors and lenders; or (d) to any governmental agency or
regulatory or self-regulatory body having or claiming authority to regulate or
oversee any aspect of the business of any Party or its Affiliates.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
OPTIONOR:
By: /s/ Xxxx Xxxxxx
Xxxx XxXxxx, Trustee
1982 Xxxx and Xxxxxx XxXxxx Trust
OPTIONEE:
By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
FORM OF PROMISSORY NOTE
$1,046,134.40 [first day of month following Option Closing]
FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxxxxx, his successors and assigns
(the "Obligor") promises to pay to the order of Xxxx XxXxxx, Trustee, 1982 Xxxx
and Xxxxx XxXxxx Trust ("Payee"), at the address of Payee at 0000 Xxxxxxxx
Xxxxx, Xxxx Xxxxxxx Xxxxxxxxxx 00000, or at such other place as the holder of
this Note hereof may from time to time designate in writing, the principal sum
of One Million Forty Six Thousand One Hundred Thirty Four Dollars and Forty
Cents ($1,046,134.40) or such other amounts advanced hereunder, together with
interest on the principal balance outstanding at the rate of eight percent (8%),
as follows:
Interest and principal on this Note shall be payable monthly without
setoff, deduction or counterclaim on the first business day of each
month, in 23 equal monthly payments of principal plus accrued
interest, commencing ______ , 2001. Payments hereunder shall be in
default if not received within fifteen (15) days from the due date.
This Note shall be payable in full two years from the date hereof (the
"Maturity Date").
On the Maturity Date, this Note shall mature and the entire unpaid
principal balance together with accrued interest shall be due and payable in
full. This Note may be prepaid in whole or in part at any time without premium
or penalty. This Note shall be assignable solely by the Payee, and upon notice
of such assignment the Obligor shall make payment to the assignee at the
assignee's address.
The obligations hereunder are secured by that certain Stock Pledge
Agreement entered into as of May ____, 2001, by and between Obligor and Payee,
their successors, endorsees and assigns.
If a Default, as defined below, occurs, the whole of the principal
sums then remaining unpaid hereunder, together with all interest accrued
thereon, and all other sums owing hereunder shall immediately become due and
payable without notice, and liens given to secure the payment of this may be
foreclosed. From and after default of this Note irrespective of any demand or
notice, the entire principal remaining unpaid hereunder shall bear an augmented
annual interest rate equal to the highest applicable lawful rate or if there is
no such rate, at eighteen percent (18%) per annum.
Failure of the Obligor to pay in full any principal or interest due hereunder or
within any applicable grace period or under any other obligation of the Obligor
to Payee promptly when it becomes due, whether by acceleration or otherwise
shall constitute a "Default" hereunder.
In the event that the Obligor fails to timely make any payments as
required under this Note ("Failure"), Obligor shall be entitled to make such
payment within sixty (60) days of the due date of such payment ("Grace Period");
provided, however, that this Grace Period shall only be valid for three separate
Failures. Upon the fourth Failure, Obligor shall be in immediate default, and
this Note will accelerate and the full amount will be due immediately without
notice.
Upon any default of the Obligor under this Note, the holder of this
Note shall be entitled to demand payment of the entire unpaid balance and any
accrued interest hereunder as well as exercise any remedies available to it
under the terms hereof.
If this Note is placed in the hands of an attorney for collection or
is collected through any legal proceedings (whether suit be brought or not), the
undersigned, and any separate endorser or guarantor, jointly and severally,
promises to pay (in addition to costs and disbursements otherwise allowed), all
reasonable costs of collection, including to the extent permitted by law,
reasonable attorneys' fees and court costs, including fees and costs incurred
for appellate procedures.
The Obligor waives presentment, protest and demand, notice of protest,
demand, maturity, dishonor and nonpayment of this Note, and any other notice or
further requirement necessary to hold it liable for payment.
The holder of this Note shall not by any act, delay, omission or
otherwise be deemed to have waived any of its right or remedies, and no waiver
of any kind shall be valid, unless in writing and signed by the holder of this
Note. The holder of this Note shall be entitled to all the rights of a holder
in due course of a negotiable instrument. Any notice required to be given to any
person shall be deemed sufficient if mailed, postage pre-paid, to such person's
address as it appears on this Note, or, if none appears, to any address for such
person appearing in the files of the holder of this Note.
This Note shall be governed by and construed and interpreted in
accordance with the substantive laws of the State of California without regard
to any conflict of law provisions. Should any provision (or any part of any
provision) within this Note be held unconstitutional or otherwise null, void or
unenforceable by a tribunal of competent jurisdiction, said provision or part of
said provision thereof shall be severed from this Note, and the remainder of
this Note shall continue to be in full force and effect.
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY OTHER
AGREEMENT, DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR PAYEE ENTERING INTO THE TRANSACTIONS REPRESENTED BY THIS NOTE.
PAYEE:
By:__________________________________
Name:________________________________
