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EXHIBIT 10.27
STOCK PURCHASE AND SALE AGREEMENT
XXXXXXX X. PUMA, PUMA PRODUCTS, INC. & OAKHURST COMPANY, INC.
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of
this 3rd day of June, 1997, by and among Xxxxxxx X. Puma, an individual,
("Puma"); Puma Products, Inc., a Texas corporation, (formerly known as LBI
Corp.) ("PPI"); and Oakhurst Company Inc., a Delaware corporation, (formerly
known as Oakhurst Capital, Inc.) ("Oakhurst"), which owns all of the
outstanding capital stock of PPI. Puma, PPI and Oakhurst are each referred to
in this Agreement as a "Party" and collectively as the "Parties."
1 BACKGROUND. As of October 20, 1994, Oakhurst, Puma and PPI entered into
a Stock Purchase Agreement pursuant to which Oakhurst acquired all of
the capital stock of PPI (the "October 1994 Purchase Agreement.") This
Agreement contemplates transactions, among others, in which Oakhurst
will sell to Puma, and Puma will purchase from Oakhurst all of the
outstanding capital stock of PPI (the "PPI Shares") and PPI will
purchase all of the outstanding capital stock of Oakhurst Trading Corp.,
a Texas corporation ("OTC"), (the "OTC Shares"); and the Parties will
resolve all outstanding debts, and obligations between and among them.
2 THE CONSIDERATION. The consideration to be paid for the PPI Shares and
the OTC Shares shall consist of the payments to be made hereunder, the
documents to be executed and delivered by Puma, PPI and/or Oakhurst and
the agreements, releases, representations, warranties, covenants and
mutual promises herein, contained.
3 THE CLOSING. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall be deemed to be May 31, 1997 and is
hereinafter referred to as the "Closing Date."
4 DELIVERIES AT THE CLOSING. At the Closing the following will take
place:
4.1 The PPI Shares and the OTC Shares. Oakhurst will deliver (a) to
Puma a stock certificate or certificates representing the PPI
Shares; (b) to PPI a stock certificate or certificates
representing the OTC Shares in the case of each of (a) and (b),
endorsed in blank or accompanied by duly executed assignment
documents executed in blank; and (c) to Puma a check payable to
him or his order in the amount of $50,000.
4.2 $600,000 Promissory Note. Puma will deliver to Oakhurst that
certain Amended and Restated Promissory Note dated February 1,
1996 in the original principal amount of $600,000 marked "Paid in
Full."
4.3 OTC Stock & Debt. Puma will deliver to Oakhurst a check payable
to Oakhurst, or order, in the amount of $10.00, representing the
purchase price of the OTC shares. Immediately after the Closing,
Puma will cause OTC to pay the entire amount of the inter-company
debt owed by OTC to Oakhurst in the amount of $170,095 by
delivery to Oakhurst of certified or cashier's check payable to
Oakhurst or order.
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4.4 Change of OTC Name. Within twenty-four hours after the Closing,
Puma will cause OTC to change its name to one that does not
contain the name "Oakhurst." Nothing in this Agreement shall be
construed as an authorization to PPI or Puma to use the name
"Oakhurst" for any purpose.
4.5 Finova Debt. Puma will cause PPI to deliver to Oakhurst or its
designee a cashier's or certified check payable to Finova Capital
Corporation ("Finova"), or order, in the amount of $400,576.51,
representing the outstanding balance due Finova Capital
Corporation from PPI under that certain Loan and Security
Agreement dated March 28, 1996 among Finova, Oakhurst, PPI and
others.
4.6 UCC Release Forms. Oakhurst will deliver to Puma UCC-3 forms
executed by Finova relating to all liens imposed by Finova on the
assets of PPI.
4.7 Sub-Lease Amendment. Oakhurst and PPI will each execute and
deliver to the other, and Puma will cause Xxxxxxx X. Puma #2
Ltd., a Texas Limited Partnership, to consent to, an amendment in
substantially the form of Exhibit A to that certain Sub-Lease
Agreement dated as of February 1, 1995 between Oakhurst and PPI
relating to the premises occupied by Oakhurst at 0000 Xxxxxxxx
Xxxxx, Xxxxx Xxxxxxx, Xxxxx.
4.8 Assignment of Certain Intellectual Property Rights and Transfer
of Stock. PPI will execute and deliver, and Oakhurst will cause
Oakhurst Holdings, Inc., a wholly-owned subsidiary of Oakhurst
("OHI"), to execute and deliver that certain Assignment of
Intellectual Property Rights and Transfer of Stock substantially
in the form of Exhibit B pursuant to which OHI sells, assigns and
transfers to PPI all of OHI's right, title and interest in and to
the trade names "Puma Products, Inc." and "Puma Products," and in
payment therefor, PPI assigns to OHI that certain stock
certificate representing two hundred ninety (290) shares of OHI
capital stock.
4.9 Termination of Corporate Services Agreement. PPI will execute
and deliver, and Oakhurst will cause Oakhurst Management
Corporation, a wholly-owned subsidiary of Oakhurst, to execute
and deliver that certain Corporate Services Termination Agreement
in substantially the form of Exhibit C.
4.10 Automobile Leases. Oakhurst, Puma and PPI shall execute and
deliver the Automobile Assignment, Assumption and Guaranty
Agreement in substantially the form of Exhibit D.
5 RE-SALE OF PPI.
5.1 In the event that on or before 5:00 p.m. Central Time on the
first anniversary of the Closing Date, substantially all of the
outstanding capital stock, assets or business of PPI
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are sold in an arm's length transaction for a Purchase Price (as
defined below) that is in excess of one million dollars
($1,000,000), Puma shall pay to Oakhurst within thirty (30) days
after the consummation of such sale, twelve and one-half percent
(12.5%) of the difference between the Purchase Price and such one
million dollars.
5.2 For purposes of Section 5.1 -
(a) The "Purchase Price" shall mean the consideration received
by the seller of such capital stock, assets or business
plus the indebtedness for money borrowed of PPI (a) that
is on the books of PPI at the time of the sale, in the
case of a sale of substantially all of the capital stock
of PPI, or (b) that is assumed by the purchaser in the
case of a sale of substantially all of the assets or
business of PPI; and
(b) Any consideration paid and any debt on the books of PPI or
that is assumed by any purchaser that relates to the
current business of OTC and that is included in any such
sale shall not be counted as part of the Purchase Price.
5.3 Any transfer by Puma to an entity with which he is affiliated or
any sale that is not an arm's length transaction shall not be
considered a sale for purposes of this Section 5. In addition,
any series of related or similar transactions by which all or
substantially all of the capital stock, assets or business of PPI
are sold shall all be deemed to have been consummated on the date
the first of such transactions is consummated.
6 CERTAIN RELEASES.
6.1 Oakhurst Debt. By the execution hereof, PPI hereby releases
Oakhurst from and against any and all amounts owing from Oakhurst
to PPI on the Closing Date.
6.2 October 1994 Purchase Agreement. Each of Puma, Oakhurst and PPI
by the execution hereof hereby releases, remises, acquits and
forever discharges each other Party and each of the other Party's
heirs, administrators, personal representatives, successors and
assigns, of and from any and all claims, demands, losses,
damages, actions or causes of action, known or unknown, now
existing or hereafter existing, relating to, or arising out of
the October 1994 Purchase Agreement, it being the intent of the
parties that neither Oakhurst, PPI nor Puma shall have any
obligation to the other arising out of the October 1994 Purchase
Agreement after the Closing.
6.3 The Operations of PPI. Except to the extent expressly otherwise
provided for in this Agreement, by the execution hereof each of
Puma and PPI on the one hand, and Oakhurst on the other hand
hereby releases, remises, acquits and forever discharges the
other and each of the other's consultants, officers and directors
acting in any capacity for Oakhurst, for PPI or for both, and the
other's heirs, administrators, personal representatives,
successors and assigns, of and from any and all claims, demands,
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losses, damages, actions or causes of action, known or unknown,
now existing or hereafter existing, relating to, or arising out
of the business and operations of PPI on and prior to the Closing
Date.
6.4 Each Party represents and warrants to each other Party that such
Party has not assigned and will not assign any claim released
herein.
6.5 Nothing in this Section 6 shall be construed as (a) an admission
of any kind or nature for any purpose by any Party to this
Agreement; (b) a waiver by any Party of any right of such Party
arising under this Agreement; or (c) the release or waiver by PPI
of any amounts owed to it by a subsidiary of Oakhurst, or the
release or waiver by any subsidiary of Oakhurst of any amounts
owed to it by PPI.
7 COVENANTS. The Parties agree as follows with respect to the period
following the Closing.
7.1 General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of
this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments
and documents) as any other Party may reasonably request, all at
the sole cost and expense of the requesting Party.
7.2 Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand of a person or entity that is not a Party hereto in
connection with (a) any transaction contemplated under this
Agreement, or (b) any fact, situation, circumstance, status, or
condition existing on or prior to the Closing Date involving PPI,
each of the other Parties will cooperate with him or it and his
or its counsel in such contest or defense, make available
personnel, and provide such testimony and access to books and
records as shall be reasonably necessary in connection with such
contest or defense. The contesting or defending Party shall
reimburse to the other Party or Parties the out-of-pocket
expenses (but not the overhead type expenses) incurred in
rendering such cooperation unless the contesting or defending
Party is entitled to indemnification therefor hereunder.
7.3 Confidentiality. Each Party will treat and hold in confidence
the confidential information of the other Party, except such
information as becomes generally available to the public without
a breach of this Section 7.3 by such Party or as is received from
a person or entity who is not a party to this Agreement without a
restriction as to its disclosure.
7.4 Taxes. Oakhurst will pay all taxes that become due after the
Closing Date that relate to the operations and business of PPI
prior to the Closing Date, and Puma will pay all
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taxes that become due after the Closing Date that relate to the
operations and business of PPI on and subsequent to the Closing
Date. For purposes of ensuring compliance with this covenant,
each Party shall have reasonable access to the relevant books and
records of the other Party.
7.5 Insurance. Effective on the Closing, Oakhurst shall cancel all
insurance coverage relating to PPI or Puma that were carried
under Oakhurst's master policy, and the refund of any premiums as
a result of such cancellations shall be remitted by Oakhurst to
PPI to the extent that the refunded premiums had been charged to
PPI prior to the Closing Date. It shall be the responsibility of
Puma and/or PPI to arrange for such insurance coverage as they
may determine for the period from and after the Closing Date.
7.6 401(k) Plan. PPI's 401(k) Plan is operated as a separate plan
under a single Oakhurst Plan Identification Number. Oakhurst
will cause the plan document to be amended to separate the Puma
401(k) Plan from that of Oakhurst and its other subsidiaries.
PPI will cooperate with Oakhurst in achieving such separation and
will reimburse to Oakhurst the actual out-of-pocket costs
incurred by Oakhurst after the Closing Date for (a) per-
participant administration charges billed to Oakhurst by the plan
administrator, and (b) reasonable legal fees, if any, incurred by
Oakhurst in amending the plan document and otherwise implementing
this Section 7.6. Notwithstanding the foregoing, such out-of-
pocket expenses shall not exceed $1,000 in the aggregate.
7.7 PPI Losses. The Parties recognize that Oakhurst files its tax
returns on a consolidated basis and will do so as well for the
1996 tax year. The Parties also agree that for the 1996 tax year
and for the duration of the 1997 tax year prior to the Closing
Date, PPI has lost money. Subject to the requirements of the
Internal Revenue Code for consolidated tax returns, to the extent
that the losses of PPI are available for use by PPI after the
Closing Oakhurst will not interfere with PPI's use thereof.
8 REPRESENTATIONS AND WARRANTIES OF OAKHURST. Oakhurst represents and
warrants to Puma that the statements contained in this Section 8 are
correct and complete as of the date hereof (except as otherwise noted)
and will be correct and complete at the Closing Date.
8.1 Organization of Oakhurst. Oakhurst is a corporation duly
organized, validly existing, and in good standing under the laws
of the State of Delaware.
8.2 Authorization of Transaction. Oakhurst has full power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of Oakhurst, enforceable in
accordance with its terms and conditions. Oakhurst need not give
any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or
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governmental agency in order to consummate the transactions
contemplated by this Agreement other than those already given,
made or obtained as of the date hereof.
8.3 PPI Shares& OTC Shares. At the Closing Date, Oakhurst will hold
of record and own beneficially all of the PPI Shares and the OTC
Shares free and clear of any restrictions on transfer (other than
any restrictions under the Securities Act of 1933 and state
securities laws), taxes, security interests, options, warrants,
purchase rights, contracts, commitments, equities, claims, and
demands. The entire authorized capital stock of PPI consists of
10,000 shares, no par value, of which 1,000 shares are issued and
outstanding, and the entire authorized capital stock of OTC
consists of 1,000 shares, of which 1,000 shares are issued and
outstanding. No shares of either PPI or OTC are held in
treasury. All of the issued and outstanding shares of PPI and of
OTC have been duly authorized, are validly issued, fully paid,
and non-assessable. Except as provided for in this Agreement, in
the case of the Puma Shares since the acquisition by Oakhurst of
the PPI Shares in October 1994 and in the case of OTC since its
incorporation (a) no options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require either of such
companies to issue, sell, or otherwise cause to become
outstanding any of its capital stock have been created, and (b)
no voting trusts, proxies, or other agreements or understandings
with respect to the voting of the capital stock of either company
have been entered into.
8.4 Non-contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will violate any statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which Oakhurst is subject or any provision of its charter or
bylaws.
8.5 Brokers' Fees. Oakhurst has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for
which Puma or PPI could become liable or obligated.
8.6 Taxes. Oakhurst has paid all taxes that were due on or before
the Closing Date and that are payable with respect to PPI.
8.7 Operation of the Business of PPI. The Parties note that Mr. Puma
has been a senior executive of PPI since its acquisition by
Oakhurst in October 1994 and has been a director of Oakhurst
since August 1995. Other than those matters that Puma (a) is
aware of, (b) carried out, or (iii) that he caused to be carried
out, and other than this Agreement, to the actual knowledge of
the other directors of Oakhurst, since February 28, 1997, the
date of the most recent consolidated financial statements of
Oakhurst and its subsidiaries, no material transaction has been
entered into by PPI, or has occurred
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with respect to PPI that is not in the ordinary course of PPI's
business and consistent with its past practice.
9 REPRESENTATIONS AND WARRANTIES OF PUMA. Puma represents and warrants to
Oakhurst that the statements contained in this Section 9 are correct and
complete as of the date hereof (except as otherwise noted) and will be
correct and complete at the Closing Date.
9.1 Authorization and Financing of Transaction. Puma has full power
and authority to execute and deliver this Agreement and to
perform his obligations hereunder and has the financial resources
necessary to make the payments to Oakhurst provided for herein.
This Agreement constitutes his valid and legally binding
obligation, enforceable in accordance with its terms and
conditions. Puma need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
Person, government or governmental agency in order to consummate
the transactions contemplated by this Agreement.
9.2 Non-contravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will violate any statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which Puma is subject.
9.3 Brokers' Fees. Puma has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which
Oakhurst could become liable or obligated.
9.4 Oakhurst. Puma has not taken any action to pledge or attempt to
pledge the credit of Oakhurst or to otherwise incur any liability
for or on behalf of Oakhurst.
10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Representations and
warranties of Puma and Oakhurst shall survive the Closing hereunder
(even if the other Party knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and
shall continue in full force and effect for a period of two (2) years
after the Closing Date except for any representation or warranty
regarding taxes, which shall survive the Closing Date for the applicable
statute of limitations. Notwithstanding the foregoing, the agreements
of the Parties shall survive without limitation if they are to be
performed after the Closing Date.
11 INDEMNIFICATION PROVISIONS.
11.1 Each Party. Each Party hereby agrees to indemnify the other
Party from and against any claim released in this Agreement by
such Party as well as from any right or demand that may now or
hereafter be asserted by such Party or by any person or entity
claiming through such Party in connection with any claim released
by such Party.
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11.2 Indemnification For the Benefit of Oakhurst. In the event that
Puma or PPI breaches this Agreement or Puma breaches any of his
representations, warranties or covenants contained herein, and
provided that Oakhurst makes a written claim for indemnification
against Puma or PPI, or both, then each of Puma and PPI agrees to
indemnify Oakhurst from and against the entirety of any Adverse
Consequences that Oakhurst may suffer through and after the date
of the claim for indemnification (including any Adverse
Consequences Oakhurst may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in
the nature of, or caused by such breach. Puma also agrees to
indemnify Oakhurst from and against the entirety of any Adverse
Consequences Oakhurst may suffer resulting from, arising out of,
relating to, in the nature of, or caused by the conduct by Puma
of the business of PPI after the Closing Date.
11.3 Indemnification For the Benefit of Puma. In the event that
Oakhurst breaches this Agreement or any of its representations,
warranties and covenants contained herein, and provided that Puma
makes a written claim for indemnification against Oakhurst, then
Oakhurst agrees to indemnify Puma from and against the entirety
of any Adverse Consequences Puma may suffer through and after the
date of the claim for indemnification resulting from, arising out
of, relating to, in the nature of, or caused by the breach.
11.4 Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any
statutory, equitable, or common law remedy any Party may have for
breach of this Agreement or of any representation, warranty, or
covenant contained herein. Puma hereby agrees that he will not
make any claim for indemnification against Oakhurst by reason of
the fact that he has been and may continue to be a director,
officer, and employee of PPI or any subsidiary thereof.
11.5 The term "Adverse Consequences" means all actions, suits,
proceedings, hearings, investigations, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in
settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable
attorneys' fees and expenses.
11.6 All claims for indemnity arising out of a breach of a
representation or warranty shall be made within the survival
period set forth in Section 10, above.
12 MISCELLANEOUS.
12.1 Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the
subject matter of this Agreement prior to the Closing without the
prior written approval of Oakhurst and Puma; provided,
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however, that Oakhurst may make any public disclosure that it
believes in good faith is required by applicable law or by any
listing or trading agreement concerning its publicly-traded
securities (in which case Oakhurst will advise Puma thereof prior
to making the disclosure).
12.2 No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
12.3 Entire Agreement. This Agreement (including the Exhibits
referred to herein) constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
12.4 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign
either this Agreement or any of his or its rights, interests, or
obligations hereunder without the prior written approval of
Oakhurst and Puma.
12.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together will constitute one and the same instrument.
12.6 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
12.7 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing and will be deemed
given to a Party either (a) when hand delivered to such Party or
(b) when deposited with a courier service with instructions to
provide next-business-day delivery and proof of delivery to such
Party, if to Puma at his last residence address on the books of
PPI prior to the Closing Date; if to Oakhurst at its headquarters
address attention of the President; and if to PPI, at its
headquarters address, attention of the President. Any Party may
change his or its own address to which notices, requests,
demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein
set forth.
12.8 The words "herein," "hereof," "hereunder," "hereby," "herewith"
and words of similar import when used in this Agreement shall be
construed to refer to this Agreement as a whole. The word
"including" shall mean including, but not limited to any
enumerated items.
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12.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Texas
without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Texas.
12.10 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and
signed by Oakhurst, PPI and Puma. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend
to any prior or subsequent default, misrepresentation, or breach
of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
12.11 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction. Notwithstanding the foregoing, however, no
provision shall be severed if it is clearly apparent under the
circumstances that the Parties would not have entered into this
Agreement without such provision.
12.12 Expenses. Each of Oakhurst and Puma will bear its or his own
costs and expenses (including legal and accounting fees and
expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
12.13 Incorporation of Exhibits. The Exhibits identified in this
Agreement are incorporated herein by reference and made a part
hereof.
13 ARBITRATION. Except as otherwise provided below, this Agreement and any
controversy, claim or dispute between the Parties directly or indirectly
concerning this Agreement or the breach hereof or the subject matter
hereof, including questions concerning the scope and applicability of
this Section 13 shall be finally settled by arbitration held in Dallas,
Texas in accordance with the provisions of this Section 13 and the rules
of commercial arbitration then followed by the American Arbitration
Association or any successor to the functions thereof.
13.1 The Party shall choose the arbitrators in accordance with the
rules of commercial arbitration then followed by the American
Arbitration Association or any successor to the functions
thereof.
13.2 A majority of the arbitrators shall have the right and authority
to determine how their decision or determination as to each issue
or matter in dispute may be implemented or
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enforced. Notwithstanding anything herein to the contrary, no
arbitrator in any such proceeding shall have authority or power
to (a) modify or alter any express condition or provision hereof
by an award or otherwise; (b) award punitive or exemplary damages
for or against any Party to any such proceeding; or (c) award any
damages expressly excluded under this Agreement. Any decision or
award of a majority of the arbitrators shall be final and
conclusive on the Parties to this Agreement, and there shall be
no appeal therefrom other than for fraud or willful misconduct.
13.3 The Parties hereto agree that an action to compel arbitration
pursuant to this Agreement may be brought in the appropriate
court of the State of Texas. Application may also be made to
such court for confirmation of any decision or award of a
majority of the arbitrators, for an order of enforcement and for
any other remedies which may be necessary to effectuate such
decision or award. The Parties hereto hereby consent to the
jurisdiction of the arbitrators and of such court and waive any
objection to the jurisdiction of such arbitrators and court.
13.4 Notwithstanding anything contained herein to the contrary, the
Parties hereby agree that this Section 13 shall not apply to any
action brought by a Party in connection with a claim for
injunction or other equitable relief.
13.5 Each of the Parties to any controversy, claim or dispute subject
to arbitration under the terms of this Section 13 shall pay fees
and expenses in accordance with any decision or award of a
majority of the arbitrators thereunder.
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
OAKHURST COMPANY, INC. PUMA PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Puma
-------------------------- --------------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Puma
Chairman & President Chairman
/s/ Xxxxxxx X. Puma
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Xxxxxxx X. Puma
(an Individual)
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EXHIBIT A
SUB-LEASE AMENDMENT AGREEMENT
THIS SUB-LEASE AMENDMENT AGREEMENT (this "Agreement") is entered into as of
this 3rd day of June, 1997, by and between Puma Products, Inc., a Texas
corporation, (formerly known as LBI Corp.) ("PPI"), and Oakhurst Company Inc.,
a Delaware corporation, (formerly known as Oakhurst Capital, Inc.)
("Oakhurst").
1 BACKGROUND. Oakhurst and Puma entered into a Sub-Lease Agreement dated
February 1, 1995 relating to approximately nine hundred square feet of
office space situated at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx (the
"Sub-lease"). The parties now wish to amend the Sub-lease.
2 CONSIDERATION. The parties are entering into this Agreement for and in
consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
3 AMENDMENT. Sub-section (a) of Section 2.01 of the Sublease is hereby
amended in its entirety to read as follows:
"(a) This Sub-lease shall terminate at such time as the Main Lease
shall terminate for whatever reason. In addition, this Sublease
may be terminated as follows:
(i) Puma may terminate this Sub-lease effective ninety (90)
days after giving written notice of termination to
Oakhurst; and
(ii) Oakhurst may terminate this Sub-lease effective ninety
(90) days after giving written notice of termination to
Puma.
4 It is acknowledged and agreed that each of PPI and Oakhurst has
performed all of the obligations to be performed by it prior to the date
hereof under the Sublease, including, but not limited to the
reimbursement to PPI by Oakhurst of the actual expenses of remodeling
the subleased premises as provided for in Section 2.02 of the Sub-lease.
5 In all other respects, the Sub-lease shall remain as originally written.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
OAKHURST COMPANY, INC. PUMA PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Puma
------------------------------ ---------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Puma
Chairman & President Chairman
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14
The foregoing amendment to the Sub-Lease Agreement dated February 1, 1995 is
hereby consented to as of the date of such amendment:
XXXXXXX X. PUMA #2 LTD., A TEXAS LIMITED PARTNERSHIP
("Landlord")
By: /s/ XXXXXXX X. PUMA
------------------------------------
Xxxxxxx X. Puma
General Partner
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15
EXHIBIT B
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS AND TRANSFER OF STOCK
THIS ASSIGNMENT OF INTELLECTUAL PROPERTY AND TRANSFER OF STOCK is made as of
the 3rd day of June 1997 by and among Oakhurst Holdings, Inc., a Delaware
corporation, ("OHI") and Puma Products, Inc., a Texas corporation, (formerly
known as LBI Corp.) ("PPI") in connection with that certain Stock Purchase and
Sale Agreement between OHI's parent, Oakhurst Company, Inc., PPI and Xxxxxxx X.
Puma dated as of June 3, 1997.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged C
1 OHI hereby sells, assigns and transfers to PPI all of OHI's right, title
and interest in and to the trade names "Puma Products, Inc." and "Puma
Products" (the "Trade Names.")
2 PPI hereby sells, assigns and transfers to OHI that certain stock
certificate representing two hundred ninety (290) shares of OHI capital
stock and delivers the same to OHI endorsed in blank or accompanied by
an assignment thereof executed in blank.
3 The parties hereby cancel that certain license agreement between them
relating to the Trade Names dated August 16, 1995.
OAKHURST HOLDINGS, INC. PUMA PRODUCTS, INC.
By: /s/ Maarten X. Xxxxxxx By: /s/ Xxxxxxx X. Puma
-------------------------------- --------------------------------
Maarten X. Xxxxxxx Xxxxxxx X. Puma
President Chairman
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16
Stock Purchase and Sale Agreement - continued
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EXHIBIT C
CORPORATE SERVICES TERMINATION AGREEMENT
PUMA PRODUCTS, INC. -- OAKHURST MANAGEMENT CORPORATION
THIS CORPORATE SERVICES TERMINATION AGREEMENT (this "Agreement") is made
effective as of the 3rd day of June 1997, by and between PUMA PRODUCTS, INC.
and OAKHURST MANAGEMENT CORPORATION.
In consideration of the covenants of the parties hereto and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1 Effective on the date hereof, the parties hereby agree to the
termination of the Corporate Services Agreement dated as of March 27,
1995 between them (the "Services Agreement.")
2 The Company acknowledges receipt in full of all amounts owing to it
under the Services Agreement through the date hereof.
3 By the execution hereof, each party hereby releases, remises, acquits
and forever discharges the other party and the other party's officers,
directors, shareholders, heirs, administrators, personal
representatives, successors and assigns, of and from any and all claims,
demands, losses, damages, actions or causes of action, known or unknown,
now existing or hereafter existing, relating to, or arising out of the
Services Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date and year first above
written.
OAKHURST MANAGEMENT CORPORATION PUMA PRODUCTS, INC.
By: /s/ Maarten X. Xxxxxxx By: /s/ Xxxxxxx X. Puma
------------------------ ----------------------
Maarten X. Xxxxxxx Xxxxxxx X. Puma
President Chairman
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17
Stock Purchase and Sale Agreement - continued
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EXHIBIT D
AUTOMOBILE ASSIGNMENT, ASSUMPTION AND GUARANTY AGREEMENT
THIS AUTOMOBILE ASSIGNMENT, ASSUMPTION AND GUARANTY AGREEMENT (this
"Agreement") is entered into as of this 3rd day of June, 1997, by and between
Xxxxxxx X. Puma ("Puma") and Puma Products, Inc., a Texas corporation,
(formerly known as LBI Corp.) ("PPI"), on the one hand, and Oakhurst Company
Inc., a Delaware corporation, (formerly known as Oakhurst Capital, Inc.)
("Oakhurst") on the other hand.
1 BACKGROUND. Oakhurst is the "Lessee" under that certain automobile lease
between Banc One Texas Leasing Corporation (as assignee) and Oakhurst
dated December 15, 1994 relating to the lease of a 1995 Lexus
automobile, Model SC400, that is currently being used by Puma (the
"Lexus Lease") and is also "Lessee" under that certain automobile lease
between Oakhurst and ARD/Industrial Power Inc. dated September 18, 1995
(subsequently assigned to General Motors Acceptance Corporation)
relating to a 1997 Isuzu Van presently used by PPI (the "Isuzu Lease")
(collectively, the "Leases.") In connection with the sale by Oakhurst
of the capital stock of PPI to Puma, the parties wish to provide for the
transfer of the Leases and the obligations of the "Lessee," as defined
therein, to PPI and the guaranty thereof by Puma.
2 CONSIDERATION. The parties are entering into this Agreement for and in
consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
3 ASSIGNMENT. Oakhurst, PPI and Puma will use commercially reasonable
efforts to obtain the consent of each lessor under the Leases to the
complete assignment thereof to PPI and the termination of Oakhurst's
obligations thereunder.
4 ASSUMPTION. Whether or not either or both of the assignments referred
to in Section 3, above, are obtained by the parties, from and after the
date hereof, PPI hereby agrees to assume and to perform in a complete and
timely manner any and all of Oakhurst's obligations under each of the
Lexus Lease and the Isuzu Lease.
5 GUARANTY.
5.1 Puma hereby guarantees the due, prompt and complete performance
by PPI of the obligations of the Lessee under each of the Lexus
Lease and the Isuzu Lease. It shall not be a pre-condition to
the enforcement by Oakhurst of Puma's guaranty obligations
hereunder to have first instituted any proceeding against PPI, or
to have pursued any other remedy that it may have against PPI for
failure to perform its obligations under either or both of the
Leases, it being understood and agreed that the guaranty by Puma
hereunder is a guaranty of payment, not of collection, and is in
no way conditional or contingent.
5.2 The foregoing guaranty by Puma shall remain in full force and
effect with respect to each of the Lexus Lease and the Isuzu
Lease until such time, if at all, as Oakhurst has no further
liability under such lease.
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Stock Purchase and Sale Agreement - continued
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5.3 The foregoing guaranty obligations of Puma shall not be impaired
by the insolvency, bankruptcy, reorganization or any similar
proceedings affecting PPI.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
OAKHURST COMPANY, INC. PUMA PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Puma
------------------------- -------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Puma
Chairman & President Chairman
/s/ Xxxxxxx X. Puma
------------------------------------
Xxxxxxx X. Puma
(an Individual)
--------------------------------------------------------------------------------
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