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EXHIBIT 10.8
PUT/CALL AGREEMENT
THIS PUT/CALL AGREEMENT made and entered into this 30th day of
November, 1992 by and between Universal Partners, Inc., a corporation duly
organized and existing under the laws of the State of Louisiana ("Universal")
and XxXxxxxxx Incorporated, a corporation duly organized and existing under the
laws of the State of Delaware ("McDermott").
W I T N E S S E T H:
WHEREAS, the parties hereto are the only shareholders of Universal
Fabricators Incorporated, a Delaware close corporation (the "Company") with
Universal owning fifty-one (51%) percent of the Company's outstanding share
capital and McDermott owning forty-nine (49%) percent of the Company's
outstanding share capital; and
WHEREAS, Universal and McDermott wish to enter into this Put/Call
Agreement relating to the share capital of the Company held by Universal.
NOW, THEREFORE, in consideration of the premises and promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties represent, warrant, covenant and agree as follows:
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1. Put Option
(a) During the three (3) month periods ending on June 30,
1997, June 30, 1998 and June 30, 1999 (the "Put Option Period"), Universal
shall have an option (the "Universal Put Option") to require McDermott to
purchase from Universal, for an aggregate purchase price to be determined based
on the following formula: (Average of net income of the Company for the prior
two (2) fisal years x 4.5) x .51 (the "Put Purchase Price"), all, but not less
than all, of the 510 shares of Class "A" common stock, par value $1.00 per
share, of the Company which were acquired by Universal from the Company
pursuant to a Contribution Agreement (the "Contribution Agreement") of even
date herewith (the "510 Shares").
(b) Universal may exercise the Universal Put Option by
sending written notice to McDermott during the Put Option Period. The closing
for the exercise of the Put Option (the "Put Closing") shall be on such date as
the parties hereto may agree in writing. At the Put Closing, Universal shall
deliver to McDermott a certificate or certificates representing the 510 Shares,
with appropriate properly executed stock powers attached, against payment by
McDermott of the Put Purchase Price. At the Put Closing, McDermott shall pay
the Put Purchase Price to Universal by wire transfer of immediately available
funds to an account designated by Universal.
2. McDermott Call Option
(a) During the three (3) month period ending on June 30,
1999 (the "Call Option Period"), and if the Universal Put Option shall not have
been exercised, McDermott shall have an option (the "McDermott Call Option") to
purchase all, but not less than all, of the 510 Shares for an aggregate
purchase price to be determined based on the following formula: (Average of
net income
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of the Company for the prior two (2) fiscal years x 4.5) x .51 (the "Call
Purchase Price").
(b) XxXxxxxxx may exercise the McDermott Call Option by
sending written notice to Universal during the Call Option Period. The closing
for the exercise of the McDermott Call Option (the "Call Closing") shall take
place on such date as the parties hereto may agree in writing. At the Call
Closing, Universal shall deliver to McDermott, a certificate or certificates
representing the 510 Shares, with appropriate properly executed stock powers
attached, against payment by McDermott of the Call Purchase Price. At the Call
Closing, McDermott shall pay the Call Purchase Price to Universal by wire
transfer of immediately available funds to the account designated by Universal.
3. Successor Interests. If and to the extent that the 510 Shares
shall be converted or otherwise transformed, by operation of law, into any
other security, interest or property of any type or form, (collectively, "Other
Property"), Universal shall deliver such Other Property (or certificate(s) or
appropriate instruments of transfer therefor) to McDermott at the Put Closing
or Call Closing, as the case may be, and such delivery shall constitute
satisfaction in full of any requirement or condition that Universal deliver
certificate(s) for the 510 Shares at the Put Closing or Call Closing, as the
case may be.
4. Representations and Warranties of Universal. Universal hereby
represents and warrants to McDermott as follows:
(a) Authority. Universal has full legal right, power and
authority, without the consent of any other person, to execute and deliver this
Put/Call Agreement and to carry out the transactions contemplated hereby. All
corporate, shareholder and other acts or proceedings required to be taken by
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Universal to authorize the execution, delivery and performance of this Put/Call
Agreement and the transactions contemplated hereby have been duly and properly
taken.
(b) Validity. This Put/Call Agreement has been, and the
documents to be delivered at the Put Closing or Call Closing, as the case may
be, will be, duly executed and delivered and constitute and will constitute
lawful, valid and legally binding obligations of Universal, enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency, or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
The execution and delivery of this Put/Call Agreement and the consummation of
the transactions contemplated hereby does not and will not result in the
creation of any Lien (as hereinafter defined) on the 510 Shares or the
acceleration of any indebtedness or other obli- gation of Universal and are not
and will not be prohibited by, do not and will not violate or conflict with any
provision of, and do not and will not constitute a default under or a breach of
(a) the Charter or By-laws of Universal, (b) any contract, agreement or other
instrument to which Universal is a party or by which Universal will be a party
or by which Universal is or will be bound, (c) any order, write, injunction,
decree or judgment of any court or governmental agency, or (d) any law, rule or
regulation applicable to Universal, except for violations, conflicts or
defaults that would not, in the aggregate or individually, have a material
adverse effect on the execution and delivery of this Put/Call Agreement and the
consummation of the transactions contemplated hereby, in the case of clauses
(b), (c) and (d) above. No approval, authorization, consent or other order or
action of or filing with any court, administrative agency or other governmental
authority is or will be required for
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the execution and deliver by Universal of this Put/Call Agreement or the
consummation by Universal of the transactions contemplated hereby.
(c) Good Title. If the Universal Put Option or the
McDermott Call Option is exercised, as the case may be, then at the Put Closing
or the Call Closing, as the case may be, Universal will transfer to McDermott
good and marketable title to the 510 Shares free and clear of all claims,
liens, pledges, security interests, charges, encumbrances or rights of third
parties of any kind (each, a "Lien"), except as any such Lien may be in favor
of McDermott.
5. Representations and Warranties of McDermott. McDermott hereby
represents and warrants to Universal as follows:
(a) Authority. McDermott has full legal right, power and
authority, without the consent of any other person, to execute and deliver this
Agreement and to carry out the transactions contemplated hereby. All corporate
and other acts or proceedings required to be taken by McDermott to authorize
the execution, delivery and performance of this Put/Call Agreement and the
transactions contemplated hereby have been duly and properly taken.
(b) Validity. This Put/Call Agreement has been, and the
documents to be delivered at the Put Closing or Call Closing, as the case may
be, will be, duly executed and delivered and constitute and will constitute
lawful, valid and legally binding obligations of McDermott, enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency, or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity, including the discretion of a court in granting equitable remedies.
The execution and delivery of this Put/Call Agreement and the consummation of
the transactions contemplated
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hereby does not and will not result in the creation of any Lien of any kind or
the acceleration of any indebtedness or other obligation of McDermott and are
not and will not be prohibited by, do not and will not violate or conflict with
any provision of, and do not or will not constitute a default under or a breach
of (a) the Charter or By-laws of McDermott, (b) any contract, agreement or
other instrument to which McDermott is a party or by which McDermott is or will
be bound, (c) any order, write, injunction, decree or judgment of any court or
governmental agency, or (d) any law, rule or regulation applicable to
McDermott, except for violations, conflicts or defaults that would not, in the
aggregate or individually, have a material adverse effect on the execution and
delivery of this Put/Call Agreement and the consummation of the transaction
contemplated hereby, in the case of clauses (b), (c) and (d) above. No
approval, authorization, consent or other order or action of or filing with any
court, administrative agency or other governmental authority is required for
the execution and deliver by McDermott of this Put/Call Agreement or such other
agreements and instruments or the consummation by McDermott of the transactions
contemplated hereby or thereby.
6. Miscellaneous.
(a) Amendment; Waiver. This Put/Call Agreement may not
be modified or amended except by an instrument or instruments in writing signed
by all of the parties hereto.
(b) Governing Law. This Put/Call Agreement shall be
governed by and construed in accordance with the internal substantive laws of
the State of Louisiana, and the parties hereby irrevocably and unconditionally
consent and submit to the in personam jurisdiction of any court located in
Lafayette, Louisiana having jurisdiction over all matters relating to this
Put/Call
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Agreement. Each party agrees that service of process in any action or
proceeding hereunder may be made upon such party by certified mail, return
receipt requested to the address for notice set forth herein. Each party
irrevocably waives any objection it may have to the venue of any action, suit
or proceeding brought in such courts or to the convenience of the forum and
each party irrevocably waives the right to proceed in any other jurisdiction.
Final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment, a certified or
true copy of which shall be conclusive evidence of the fact and the amount of
any indebtedness or liability of any party therein described.
(c) Headings. The paragraph and other headings contained
in this Put/Call Agreement are for reference purposes only and shall not be
deemed to be a part of this Put/Call Agreement or to affect the meaning or
interpretation of this Put/Call Agreement.
(d) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered (i) in person, (ii) to the extent receipt is
confirmed, by telecopy, facsimile or other electronic transmission service,
(iii) by registered or certified mail (postage prepaid, return receipt
requested) or (iv) by a nationally recognized overnight courier service, to the
parties at the following addresses:
If to Universal, to:
Universal Partners, Inc.
X.X. Xxx 00000
Xxxx Xxxx, Xxxx xx Xxx Xxxxxx
New Xxxxxx, Xxxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
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If to McDermott, to:
XxXxxxxxx Incorporated
0000 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Senior Vice President &
Chief Financial Officer
Telecopy: (000) 000-0000
Copy to:
XxXxxxxxx Incorporated
0000 Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President, Secretary and General Counsel
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
(e) Binding Effect; Assignment. This Put/Call Agreement
shall be binding upon and inure solely to the benefit of each party hereto and
their respective successors and permitted assigns. Except as otherwise
provided herein, no assignment of this Put/Call Agreement or of any rights or
obligations hereunder may be made by (by operation of law or otherwise) without
the prior written consent of McDermott and any attempted assignment without the
required consent shall be void.
(f) Counterparts. This Put/Call Agreement may be
executed by the parties hereto in counterparts, each of which shall be deemed
to be an original
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instrument, but all of which together shall constitute one and the same
instrument.
(g) No Sale or Lien. During the period commencing on the
date hereof and ending on June 30, 1999 Universal shall not sell, transfer,
enter into any agreement to sell or transfer, or enter into any option
agreement or otherwise create or allow to be created any Lien relating to the
510 Shares.
(h) Enforcement of the Put/Call Agreement. The parties
hereto agree that irreparable damage would occur in the event that any of the
provisions of this Put/Call Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Put/Call Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(i) Conditions Precedent. The obligation of McDermott to
purchase the 510 Shares at the Put Closing or Call Closing, as the case may be,
is subject to, inter alia, the negotiation of a definitive Stock Purchase
Agreement and a satisfactory due diligence review of the Company.
(j) Entire Agreement. This Put/Call Agreement contains
the entire agreement between the parties relating to the 510 shares and all
prior negotiations and agreements are merged into this Put/Call Agreement.
Whenever appropriate in this Put/Call Agreement personal pronouns shall be
deemed to include the other genders and the singular to include the plural.
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(k) Defined Terms. All capitalized terms used herein but
not defined shall have the meaning attributed to them in the Contribution
Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Put/Call Agreement as of the date first above written.
UNIVERSAL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
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XxXXXXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice-President and
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Chief Financial Officer
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