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TERMINATION AND PERFORMANCE SHARES REPURCHASE AGREEMENT
AGREEMENT, made this 8th day of February, 1996, by and between
XXXXX XXXX, INC., with an address at 0000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000 ("Jenna") and XXXXX XXXXXXXXXX, with a residence at 000 Xxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx is the record and beneficial owner of
36,000 shares (the "Shares") of common stock, par value $.01 per share ("Common
Stock"), of Jenna designated as Performance Shares in Xxxxxxxxxx'x Employment
Agreement, dated as of April 24, 1995, by and between Xxxxxxxxxx and Jenna (the
"Employment Agreement"); and
WHEREAS, Xxxxxxxxxx has been employed by Jenna pursuant to the
Employment Agreement; and
WHEREAS, Xxxxxxxxxx and Xxxxx desire to terminate the
Employment Agreement and, pursuant thereto, to repurchase the Shares.
1. Termination. As of the date hereof, the Employment
Agreement, as amended to date, along with Xxxxxxxxxx'x employment by Jenna
pursuant thereto, is hereby terminated in all respects. Xxxxxxxxxx hereby
resigns as an officer and director of Jenna as of the date hereof. All benefits
to which Xxxxxxxxxx was entitled to under the Employment Agreement through the
date hereof, in addition to any benefits to which he may be entitled to under
applicable law, shall be afforded to Xxxxxxxxxx.
2. Sale of Performance Shares. Simultaneously with the
execution hereof, in accordance with Section 2(d) of the Employment Agreement,
Xxxxxxxxxx shall sell, assign, transfer, and convey to Jenna, and Jenna shall
purchase, the Shares, duly endorsed for transfer, at the aggregate purchase
price of $360.00 (the "Purchase Price"). The transfer shall be deemed complete
upon the delivery to Jenna of stock certificates, duly endorsed for transfer (or
duly executed lost certificate affidavits) representing all Shares and by
delivery by Jenna of a check or wire transfer payable to Xxxxxxxxxx, in an
aggregate amount equal to the Purchase Price. Xxxxxxxxxx agrees to pay any stock
transfer taxes, stamp taxes or other taxes, levies, duties or fees which may be
payable as a result of the sale of the Shares, and each party agrees to deliver
any and all documents and instruments reasonably requested by the other.
3. Representations and Warranties of Xxxxxxxxxx; Release.
Xxxxxxxxxx hereby represents and warrants to Jenna that he is the sole owner of
the Shares, free and clear of all liens or encumbrances (except those set forth
in the Employment Agreement); and that the sale of Shares will not violate any
agreement, arrangement or understanding to which Xxxxxxxxxx is a party nor any
agreement relating to the Shares. As a condition to Jenna's agreement to the
terms hereof, Xxxxxxxxxx will execute, notarize and deliver to Jenna the general
release set forth in Exhibit A, which release exempts Jenna's liability pursuant
to this Agreement. Further, Jenna will execute the
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general release set forth in Exhibit B, which release exempts Xxxxxxxxxx'x
liability pursuant to this Agreement.
4. Benefit. This agreement shall be binding upon, and inure to
the benefit of, the legal representatives, successors and assigns of the parties
hereto.
5. Governing Law. This agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the conflicts of laws rules thereof.
6. Miscellaneous. This agreement contains the entire agreement
among the parties relating to the sale of the Shares and is the complete written
integration of the agreement. This agreement may be signed in multiple
counterparts, which together shall constitute one and the same instrument. This
agreement may not be changed orally. The terms and provisions of this Agreement
shall be severable so that if any of the terms or provisions hereof is
determined to be unenforceable, the enforceability of the remaining terms and
provisions shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXXX XXXX, INC.
By: /s/
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Xxxxxxxx Xxxxxx, President
/s/
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XXXXX XXXXXXXXXX
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EXHIBIT A
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT XXXXX XXXXXXXXXX, as Releasor, in consideration of the sum of Ten Dollars
($10.00) received from XXXXX XXXX, INC., a Delaware corporation as Releasee, and
other good and valuable consideration, the receipt and sufficiency whereof are
hereby acknowledged, releases and discharges the Releasee, Releasee's
shareholders, officers, directors, employees, agents (including attorneys) and
representatives, successors and assigns, from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, executions,
claims, and demands whatsoever, in law, admiralty or equity, which against the
Releasee, the Releasor, Releasor's heirs, executors, administrators, successors
and assigns ever had, now have or hereafter can, shall or may, have for, upon,
or by reason of any matter, cause or thing whatsoever from the beginning of the
world to the day of the date of this Release. This Release does not apply to
Releasee's obligations under that certain Termination and Performance Shares
Repurchase Agreement, by and between Releasee and Releasor, of even date
herewith. This Release may not be changed orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on
the day of January, 1996.
_______________________________ L.S.
XXXXX XXXXXXXXXX
STATE OF_____________
COUNTY OF________________
On____________ before me personally came XXXXX XXXXXXXXXX, to
me known, who, by me duly sworn, did depose and say that deponent resides at 000
Xxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, and that deponent executed the
foregoing Release.
___________________________
Notary Public
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EXHIBIT B
RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT XXXXX XXXX, INC., a Delaware corporation, as Releasor, in consideration of
the sum of Ten Dollars ($10.00) received from XXXXX XXXXXXXXXX, as Releasee, and
other good and valuable consideration, the receipt and sufficiency whereof are
hereby acknowledged, releases and discharges the Releasee, Releasee's
representatives, successors and assigns, from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, executions,
claims, and demands whatsoever, in law, admiralty or equity, which against the
Releasee, the Releasor, Releasor's successors and assigns ever had, now have or
hereafter can, shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the day of the date of
this Release. This Release does not apply to Releasee's obligations under that
certain Termination and Performance Shares Repurchase Agreement, by and between
Releasee and Releasor, of even date herewith. This Release may not be changed
orally.
IN WITNESS WHEREOF, the Releasor has executed this Release on
the __ day of January, 1996.
XXXXX XXXX, INC.
By: ___________________________________L.S.
Xxxxxxxx Xxxxxx, President
STATE OF__________
COUNTY OF_________
On__________ before me personally came XXXXXXXX XXXXXX, to me
known, who, by me duly sworn, did depose and say that deponent has an address at
0000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, and that deponent is the
President of the corporation which is set forth above and that, on behalf of
said corporation, deponent executed the foregoing Release.
_______________________
Notary Public
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