EXHIBIT 10.27
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement") is made as of December 30,
1999, by and between Xxxxxxx Fitness, Inc., a Delaware corporation ("Xxxxxxx"),
and X.X. Xxxxxxxxx/StairMaster, LLC, a California limited liability company
("WRH/SM").
RECITALS
X. Xxxxxxx is the owner of 23,077 shares of common stock (the "Shares")
of StairMaster Holding, Inc., a Delaware corporation ("Stairmaster Holding"),
having acquired the Shares pursuant to that certain Stock Subscription Agreement
dated as of December 17, 1999 between Xxxxxxx and StairMaster Holding (the
"Subscription Agreement") entered into in connection with a sale by Xxxxxxx of
its assets to StairMaster Sports/Medical Products, Inc., a wholly owned
subsidiary of StairMaster Holding. As owner of the Shares, Xxxxxxx has certain
rights with respect to future registrations by StairMaster Holding of its shares
of common stock pursuant to that certain Registration Rights Agreement dated
September 5, 1997, among StairMaster Holding, Xxxxxxx and other investors, as
amended by an Amended No. 1 to the Registration Rights Agreement dated as of
December 17, 1999 (as so amended, the "Rights Agreement") (the Subscription
Agreement and the Rights Agreement are sometimes collectively referred to herein
as the "Share Agreements").
B. WRH/SM desires to purchase all of the Shares and all of Quinton's
rights under the Share Agreements, and Xxxxxxx is willing to sell the Shares and
assign all of its rights under the Share Agreements to Xxxxxxx on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual
covenants and conditions set forth therein, the parties agree as follows:
1. ASSIGNMENT AND PURCHASE OF SHARES AND RIGHTS.
1.1 Sale of Shares and Assignment and Assumption of Rights. Subject to
the terms and conditions set forth in this Agreement, Xxxxxxx hereby sells,
transfers and assigns to WRH/SM, and WRH/SM hereby purchases from Xxxxxxx, on
the Closing Date, all of Xxxxxxx' rights, title and interest in the Shares and
the Share Agreements, and assumes and agrees to be bound by the terms and
conditions of and obligations under the Share Agreements. WRH/SM hereby makes as
to itself each of the representations made by Xxxxxxx in Section 3 of the
Subscription Agreement. WRH/SM's manager, by its execution of this Agreement,
acknowledges and agrees to
be bound by the provisions of Section 4 of the Subscription Agreement.
StairMaster Holding is an intended third party beneficiary of this Section 1.1.
1.2 Consideration Payable By WRH/SM. As consideration to Xxxxxxx for the
assignment of the Shares and the Share Agreements, WRH/SM has tendered to
Xxxxxxx, at the time of execution and delivery of this Agreement, by wire
transfer current funds in the amount of Three Million Dollars ($3,000,000.00).
1.3 Delivery of Shares. Simultaneous with the execution and delivery of
this Agreement by WRH/SM and its payment of the consideration under Section 1.2,
Xxxxxxx shall have delivered to WRH/SM with all necessary endorsements the
original certificate evidencing the Shares and complete and correct copies (with
original counterparts where available) of the Share Agreements.
2. REPRESENTATIONS AND WARRANTIES OF XXXXXXX. To induce WRH/SM to enter into
this Agreement, Xxxxxxx hereby represents and warrants as follows:
2.1 Organization; Authority. Xxxxxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Xxxxxxx has full power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby. The Board of Directors of Xxxxxxx has
duly authorized the execution and delivery of this Agreement and the
transactions contemplated hereby, and no other action on the part of Xxxxxxx is
necessary to authorize this Agreement and the transactions contemplated hereby.
2.2 Absence of Conflict. The performance of this Agreement and the
consummation of the transactions herein contemplated will not with the passage
of time, the giving of notice, or both, result in a breach of or violation of
any of the terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, note, agreement, lease or other instrument
to which Xxxxxxx is a party or by which Xxxxxxx is bound, the organizational or
charter documents of Xxxxxxx, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Xxxxxxx or any of its
properties; and no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by Xxxxxxx of the
transactions contemplated by this Agreement, other than filings and approvals
provided for in this Agreement.
2.3 No Prior Agreement. Xxxxxxx is the owner of the Shares and its
rights under the Share Agreements free of all liens and encumbrances, except
those in favor of Silicon Valley bank, which Bank has consented to the transfer
of the Shares and the Share Agreements hereunder; and Xxxxxxx has made no
assignment to any person of
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the Shares or the Share Agreements or any of its rights thereunder other than
the sale, transfer and assignment to WRH/SM pursuant to this Agreement.
3. MISCELLANEOUS PROVISIONS.
3.1 Survival. All representations, warranties, covenants, and agreements
in this Agreement shall survive indefinitely until they are no longer operative
or are otherwise limited by an applicable statute of limitations. All statements
in any certificate, schedule, or exhibit delivered by any party under this
Agreement or in connection with the transactions contemplated by this Agreement
shall constitute representations and warranties by that party under this
Agreement.
3.2 Notices. All consents, waivers, claims, notices, requests, demands
and other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered by courier or messenger
(on the date delivered), by telecopy (on the date receipt thereof is confirmed
by telecopy) or by mail, first class certified mail, return receipt requested,
with postage paid (on the third day, excluding Saturdays, Sundays and federal
legal holidays, after the date mailed):
If to Xxxxxxx: Xxxxxxx Fitness, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn: President
Telecopy: (000) 000-0000
If to WRH/SM: X.X. Xxxxxxxxx/StairMaster, LLC
x/x X.X. Xxxxxxxxx + Co.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: X.X. Xxxxxxxxx
Telecopy: (000) 000-0000
or to such other persons or addresses as WRH/SM, or Xxxxxxx shall furnish to
each other in writing.
3.4 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Except as provided in Section 1.1, nothing in
this Agreement, express or implied, is intended to confer upon any third party
any rights or remedies of any nature whatsoever under this Agreement.
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3.5 Governing Law. This Agreement shall be governed by the internal laws
of the State of California as to all matters of validity, construction, effect
and performance.
3.6 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute one instrument.
3.7 Headings. Title headings are for reference purposes only and shall
have no interpretative effect.
3.8 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto relating to the subject matter hereof and supersedes
all prior agreements and understandings between the parties with respect to such
subject matter. This Agreement may be changed, amended or modified only if in
writing and signed by the parties hereto.
3.9 Finder's Fees. Neither Xxxxxxx nor WRH/SM or any of their respective
affiliates has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
3.10 Severability. If any clause, paragraph, section or part of this
Agreement is held or declared void, invalid or illegal, for any reason, by any
court of competent jurisdiction, such provision shall be ineffective but shall
not in any way invalidate or affect any other clause, paragraph, section or part
of this Agreement, provided that the severance of such provision does not affect
the material terms of this Agreement.
3.11 Further Assurances. Each party hereto agrees to do such further acts
and things and to execute and deliver such additional agreements and instruments
as any other party may reasonably request to consummate, evidence, or confirm
any agreement or covenant contained herein.
3.12 Confidentiality. Each party agrees to hold in strict confidence, and
not disclose to any other person, the terms and conditions of the transactions
contemplated under this Agreement and all confidential information received by
such party in connection with the transactions contemplated hereunder, whether
or not such transactions are consummated, except as disclosure may be required
by law, to StairMaster Holding, or as otherwise contemplated herein.
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IN WITNESS WHEREOF, the parties have executed this Assignment Agreement as
of the date first above written.
XXXXXXX FITNESS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: President/CEO
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X.X. XXXXXXXXX/STAIRMASTER, LLC
By X.X. Xxxxxxxxx/StairMaster
Management, LLC
By: /s/ X.X. Xxxxxxxxx/StairMaster
Management, LLC
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Name:
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Title:
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The undersigned manager of WRH/SM agrees to be bound by Section 1.1 of the
foregoing Assignment Agreement:
X.X. XXXXXXXXX/STAIRMASTER MANAGEMENT, LLC
By: /s/ X.X. Xxxxxxxxx/StairMaster
Management, LLC
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Name:
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Title:
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