AMENDED AND RESTATED PUT OPTION AGREEMENT
by and between
XXXX XXXXXX
and
'21' INTERNATIONAL HOLDINGS, INC.
Dated as of December 14, 1993
AMENDED AND RESTATED PUT OPTION AGREEMENT
THIS AMENDED AND RESTATED PUT OPTION AGREEMENT (this "Agreement"),
dated as of December 14, 1993, is by and between Xxxx Xxxxxx, an individual
("Rallis"), and '21' International Holdings, Inc., a Delaware corporation
("TIHI").
PRELIMINARY STATEMENTS
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A. Pursuant to (i) the Exchange Agreement Regarding Admission of
Limited Partner and Put Option dated as of May 1, 1993 by and among Rallis,
Pegasus Properties, a California limited partnership, Foamex L.P., a Delaware
limited partnership (the "Partnership"), and TIHI and (ii) the Third Amended
and Restated Agreement of Limited Partnership of Foamex L.P. dated as of
October 13, 1992 by and among Recticel Foam Corporation, a Delaware
corporation, '21' Foam Corporation, Inc., a Delaware corporation, TIHI, FCD
Sub, Inc., a Delaware corporation, Marely I s.a., a societe anonyme organized
under the laws of France, and DLJ Funding, Inc., a Delaware corporation (as
amended by the First Amendment thereto as of March 11, 1993 and the Second
Amendment thereto (to which Rallis is a party) as of May 6, 1993), (the
"Third Restated Partnership Agreement"), (x) Rallis was admitted as a limited
partner of the Partnership and the Partnership issued to Rallis a limited
partner interest (the "Rallis Limited Partnership Interest") in the
Partnership and (y) TIHI and Rallis entered into the Put Option Agreement
dated as of May 6, 1993 (the "Put Option Agreement"), pursuant to which TIHI
granted to Rallis the right and option, in certain circumstances, to sell the
Rallis Limited Partnership Interest to TIHI.
X. Xxxxxx, the Partnership, Foamex International Inc., a Delaware
corporation (the "Company"), and TIHI have entered into the 1993 Rallis
Master Agreement dated as of November 4, 1993 (the "1993 Rallis Master
Agreement"). Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the 1993 Rallis Master
Agreement.
C. Pursuant to the terms of the 1993 Rallis Master Agreement and
the Rallis Exchange Agreement, Rallis has been issued on the date hereof
308,813 shares (the "Rallis Shares") of the voting common stock of the
Company, par value $.01 per share (the "Common Stock"), in exchange for a
portion of the Rallis Limited Partnership Interest.
D. Pursuant to the terms of the 1993 Rallis Master Agreement, TIHI
and Rallis are required to enter into this Agreement pursuant to which TIHI
and Rallis have substituted the right and option of Rallis to sell to TIHI
all of the Rallis Shares for $7,500,000, or any portion of the Rallis Shares
for a pro rata portion of $7,500,000, for the right and option granted to
Rallis by TIHI in the Put Option Agreement.
Accordingly, for and in consideration of the foregoing and the mutual
agreements, representations, covenants and conditions set forth herein, in
the 1993 Rallis Master Agreement and the Rallis Closing Agreements, and for
other good, valuable and binding consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
STATEMENT OF AGREEMENT
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Section 1. Right and Option.
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(a) Put Option. As a result of the exchange by Rallis of a portion
of the Rallis Limited Partnership Interest for the Rallis Shares and the
requirement of the 1993 Rallis Master Agreement that Rallis and TIHI
substitute the right and option of Rallis to sell to TIHI all of the Rallis
Shares for $7,500,000, or any portion of the Rallis Shares for a pro rata
portion of $7,500,000, for the right and option granted to Rallis by TIHI in
the Put Option Agreement, TIHI and Rallis hereby agree that, subject to the
terms of Section 5 below, Rallis has an irrevocable right and option to cause
TIHI to purchase all or a portion of the Rallis Shares, but only the Rallis
Shares, from Rallis in the manner and at the purchase price set forth in
subsection (d) below (the "Put Option").
(b) Exercise Period. Subject to the terms of Section 5 below, and
subject to suspension of such exercise period due to the right of the Company
to reasonably require its officers to enter into standstill agreements in
connection with its securities offerings (a "Standstill Agreement"), the Put
Option may be exercised, in whole or in part, by Rallis at any time during
the period commencing on May 6, 1998 and ending August 4, 1998. In the event
that Rallis is subject to a Standstill Agreement during the exercise period
referenced above, the period shall be extended for the time that such period
was suspended due to such Standstill Agreement.
(c) Exercise Notice. In the event that at any time Rallis wishes to
exercise the Put Option in whole, or from time to time in part, Rallis shall
send a written notice to TIHI (an "Exercise Notice"), which notice shall (i)
state that Rallis wishes to cause TIHI to purchase all or a portion of the
Rallis Shares from Rallis in accordance with the terms and conditions
contained herein, (ii) state the number of Rallis Shares which Rallis wishes
to cause TIHI to purchase and (iii) specify a date (a "Put Closing Date")
which is not later than 20 business days and not earlier than ten business
days from the date such notice is received for the closing of such sale (a
"Put Closing").
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(d) Exercise Price. On each Put Closing Date, TIHI shall pay to
Rallis, by wire transfer in immediately available funds to an account
previously designated by Rallis in the Exercise Notice an amount equal to the
product of (i) $24.29 (the "Per Share Exercise Price") multiplied by (ii) the
number of Rallis Shares stated in the Exercise Notice. In the event of any
reorganization, recapitalization, split, merger, stock split, stock dividend,
combination or exchange of shares of Common Stock, issuance of other
securities in exchange for Common Stock or any other change in the
outstanding securities of the Company that results in a change in the number
or the kind of shares of Common Stock or securities convertible into Common
Stock, the Per Share Exercise Price shall be adjusted so that the total
amount of consideration to be paid by TIHI to Rallis upon any exercise of the
Put Option, in whole or in part, is identical to the total amount of
consideration that would have been paid if such event had not occurred.
Section 2. Put Closing. Each Put Closing shall occur on the Put
Closing Date at TIHI's principal office located at 000 X. 00xx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be mutually
agreed upon by TIHI and Rallis.
Section 3. Conditions to Each Put Closing. Rallis' right to exercise
the Put Option in whole at any time and in part from time to time, and TIHI's
obligation to purchase the number of Rallis Shares stated in the Exercise
Notice, are subject to the satisfaction or, unless prohibited by law, the
waiver by TIHI at or before each such Put Closing of each of the following
conditions:
(a) No Injunction. On each Put Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or any order of any
nature issued by a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission which restrains, enjoins or
otherwise prohibits the exercise of the Put Option or TIHI's obligation to
purchase the number of Rallis Shares stated in the Exercise Notice (an
"Injunction"); provided, however, that in the event of an Injunction that is
not permanent, the Put Closing Date shall be re-scheduled to occur five
business days after the termination of such injunction.
(b) No Violation. On each Put Closing Date, the consummation of the
transactions contemplated by this Agreement and the Exercise Notice shall not
conflict with, nor constitute a default (or event or condition which, with
notice or lapse of time or both, would constitute a default) under, nor
result in the termination or acceleration of, nor result in the creation or
imposition of any lien or encumbrance under, any agreement to which Rallis is
a party or which by Rallis may be bound or subject, nor violate any statutes,
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orders, rules or regulations promulgated by any governmental body (including,
but not limited to, those relating to the purchase and sale of securities).
(c) Deliveries by Rallis. At each Put Closing, Rallis shall have
delivered to TIHI the following:
(i) One or more Foamex International Inc. Common Stock
Certificates issued by the Company to Rallis evidencing Rallis'
ownership of the number of Rallis Shares stated in the Exercise
Notice, together with such duly executed stock powers,
assignments, opinions of counsel and instruments of conveyance
and transfer, and in such form, as reasonably deemed necessary by
TIHI, the Company and the transfer agent for the Common Stock,
and each of their respective counsels, in order to (x) vest in
TIHI all of Rallis' right, title and interest in and to such
Rallis Shares, (y) effect a transfer of such Rallis Shares to
TIHI on the stock record books of the Company, and (z) comply
with the requirements of any applicable federal or state
securities laws; and
(ii) A certificate, dated as of the Put Closing Date and
executed by Rallis, certifying that as of the Put Closing Date
(x) Rallis has good, valid and marketable title to the Rallis
Shares to be transferred, and has the right to sell, assign and
transfer such Rallis Shares, free and clear of any claims, liens,
encumbrances, security interests, restrictions or adverse claims
of any kind and nature whatsoever and that no Consents are
required of any Person for Rallis to sell, assign and transfer
such Rallis Shares to TIHI upon exercise of the Put Option, (y)
there are no outstanding subscriptions, options, warrants,
rights, contracts, understandings or agreements to which Rallis
(or his permitted transferee) is a party that provide for the
purchase or other acquisition of such Rallis Shares and (z) the
conditions contained in subsections (a) and (b) of Section 3
hereof are satisfied.
Section 4. Rallis Shares Exclusively. The Put Option is limited
solely and exclusively to the Rallis Shares and (other than as contemplated
in this Section 4) shall in no event, under any circumstances be deemed to
apply to any other shares of Common Stock acquired or held by Rallis, whether
prior to or after the date hereof; provided, however, that in the event that
the Company, at any time or from time to time after the date of this
Agreement, issues shares of Common Stock as a stock dividend upon outstanding
shares of Common Stock or subdivides (by any stock split, reorganization,
reclassification, recapitalization or otherwise) its outstanding shares of
Common Stock into a greater number of shares of Common Stock, the number of
shares of Common Stock which, immediately prior to such issuance or subdivision,
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are deemed to be Rallis Shares under this Agreement will be proporrtionately
increased provided, further, that in the event that the Company, at any time
or from time to time after the date of this Agreement, combines (by reverse
stock split, reclassification or otherwise) its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, the number of
shares of Common Stock which, immediately prior to suchcombination, are
deemed to be Rallis Shares under this Agreement will be proportionately
decreased and; provided, further, that in the event that the Company, at any
time or from time to time after the date of this Agreement, consummates a
merger, acquisition, consolidation or reorganization whereby the Common
Stock of the Company is converted into shares of equity stock or other
securities of the Company or another entity, then such equity stock or other
securities received by Rallis in exchange for the Rallis Shares shall be
deemed to be Rallis Shares for the purposes of this Agreement, and shall be
subject to the Put Option.
Section 5. Automatic Termination Upon Certain Transfers. In the event
that any of the Rallis shares are sold, exchanged, transferred or otherwise
disposed of by Rallis to any Person other than as provided herein, the Put
Option with respect to such transferred Rallis Shares shall immediately, and
without further action on the part of any party, terminate. For purposes of
this Section 5, the transfer by Rallis of any Rallis Shares (a) to a
revocable trust for the benefit of Rallis or any member of the Rallis family,
(b) to any member of the Rallis family, or (c) one or more public charities
or one or more private foundations shall not be deemed a transfer or other
disposition of the Rallis Shares.
Section 6. Representations and Warranties of Rallis. Rallis
represents and warrants to TIHI that (a) Rallis is the legal and beneficial
owner of the Rallis Shares; (b) Rallis has all requisite legal capacity to
enter into, execute and deliver this Agreement and to perform his obligations
hereunder; and (c) this Agreement has been duly executed and delivered by
Rallis and is a valid and binding obligation of Rallis, enforceable against
Rallis in accordance with its terms.
Section 7. Representations and Warranties of TIHI. TIHI represents
and warrants to Rallis that (a) TIHI has all requisite power and authority to
enter into, execute and deliver this Agreement and perform its obligations
hereunder; and (b) this Agreement has been duly executed and delivered by
TIHI and is a valid and binding obligation of TIHI, enforceable against TIHI
in accordance with its terms.
Section 8. Covenant of Rallis. Immediately upon the occurrence of any
sale, transfer, exchange or other disposition of all or any portion of the
Rallis Shares, Rallis shall notify TIHI, in the manner provided in Section 18
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hereof, of the number of Rallis Shares so transferred and the remaining
number of Rallis Shares, if any, which are still held by Rallis.
Section 9. Termination. This Agreement shall terminate upon the
expiration of the exercise period referenced in Section 1(b) hereof, or if
the Put Option is timely exercised, on the Put Closing Date upon which TIHI
purchases the last of the Rallis Shares owned by Rallis, whichever shall
occur first.
Section 10. Further Assurances. From time to time upon request and
without further consideration, each of Rallis and TIHI shall, and shall cause
its subsidiaries and affiliates to, execute, deliver and acknowledge all such
further instruments and do such further acts as any other party hereto may
reasonably require to evidence or effectuate more effectively the
transactions contemplated by this Agreement.
Section 11. Waiver. Any failure of any of the parties to comply with
any obligation, covenant, agreement or condition herein may be waived by any
of the parties entitled to the benefit thereof only by a written instrument
signed by each such party granting such waiver, but such waiver or failure to
insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement or condition shall not operate as a waiver of or estoppel
with respect to any subsequent or other failure.
Section 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF.
Section 13. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any alleged breach hereof, shall be settled by
arbitration. The parties hereto agree that any such controversy shall be
submitted to three arbitrators in accordance with the Rules of Commercial
Arbitration of the American Arbitration Association. The arbitrators shall
be governed by and shall apply the substantive laws of the State of New York
in making their determination and their ruling shall be binding and
conclusive upon the parties hereto. Any arbitration shall occur in New York
City.
Section 14. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
and delivered by means of facsimile transmission or otherwise, each of which
when so executed and delivered shall be deemed to be an original and all of
which when taken together shall constitute but one and the same agreement.
If any party hereto elects to execute and deliver a counterpart signature
page by means of facsimile transmission, it shall deliver an original of such
counterpart to the other party hereto within ten business days of the date
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hereof, but in no event will the failure to do so affect in any way the
validity of the facsimile signature or its delivery.
Section 15. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of, and be enforceable
by, the parties hereto and their successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations herein
shall be assigned by either party hereto without the prior written consent of
the other party hereto, and any attempt to do so without obtaining the
required consent of the other party hereto shall be void; provided, however,
that in the event that Rallis transfers all or a portion of the Rallis shares
to (a) a revocable trust for the benefit of Rallis or any member of the
Rallis family, (b) any member of the Rallis family, or (c) one or more public
charities or one or more private foundations, and such transferee agrees to
become a party to this Agreement, Rallis may assign in connection with such
transfer a portion of the Put Option equal to the portion of the Rallis
Shares so transferred, provided that Rallis must give notification of such
transfer to TIHI pursuant to Section 18, and upon such assignment, Rallis'
rights pursuant to this Agreement to the extent assigned shall be terminated
and the transferee of such rights shall be deemed to be a party to this
Agreement.
Section 16. Entire Agreement. This Agreement contains all of the
terms of the understanding of the parties hereto with respect to the subject
matter hereof.
Section 17. Amendment. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
Section 18. Notices. All notices and other communications hereunder
must be in writing and will be deemed to have been duly given when personally
or actually delivered or on the date of receipt or refusal indicated on the
return receipt if mailed (registered or certified mail, postage prepaid,
return receipt requested), sent by express courier service, or when
transmitted by facsimile transmission to the addresses/facsimile numbers set
forth on the signature pages hereto or to such other addressee/facsimile
number as either party hereto shall designate from time to time in writing in
accordance with the provisions hereof to the other party hereto as the proper
address/facsimile number to which such notices and communications shall be
sent.
Section 19. Severability. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable under any applicable law, then
such contravention or invalidity shall not invalidate the entire Agreement.
Such provision shall be deemed to be modified to the extent necessary to
render it legal, valid and enforceable, and if no such modification shall
render it legal, valid and enforceable, then this Agreement shall be
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construed as if not containing the provision held to be invalid, and the
rights and obligations of the parties shall be construed and enforced
accordingly.
Section 20. Survival of Representations and Warranties. Each
representation and warranty made by the parties hereto shall survive any
investigation made by or on behalf of any party hereto and shall survive the
Put Closing indefinitely.
Section 21. Headings. The headings used herein are for convenience of
reference only, are not a part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, any
provision of this Agreement.
The remainder of this page is intentionally left blank.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto or their duly authorized officers, directors or
representatives as of the date first above written.
XXXX XXXXXX
Address: 0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
telephone: (000) 000-0000
facsimile: (000) 000-0000
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
'21' INTERNATIONAL HOLDINGS, INC.
Address: 000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
telephone: (000) 000-0000
facsimile: (000) 000-0000
By:/s/ Xxxxxx X. Xxxxx, Xx.
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Print Name:
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Print Title:
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