EXHIBIT 10.7
EXCHANGE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of December 31, 2002,
by and among C2, Inc., a Wisconsin corporation ("C2"), Zero Zone, Inc., a
Wisconsin corporation ("Zero Zone"), and certain shareholders of Zero Zone
listed on the signature page hereto (individually, a "Selling Shareholder" and
together, the "Selling Shareholders").
W I T N E S S E T H:
WHEREAS, the Selling Shareholders own in the aggregate 18,315 shares (the
"Subject Shares") of common stock, $0.10 par value per share, of Zero Zone ("ZZ
Common Stock"), representing approximately twenty-nine and 41/100 percent
(29.41%) of the total shares of ZZ Common Stock issued and outstanding.
WHEREAS, C2 is the beneficial holder of the remaining 43,956 shares of ZZ Common
Stock, representing approximately seventy and 59/100 percent (70.59%) of the
total shares of ZZ Common Stock issued and outstanding.
WHEREAS, C2 desires to acquire from each Selling Shareholder, and each Selling
Shareholder desires to transfer to C2, the Subject Shares solely in exchange for
shares of common stock, $1 par value per share, of C2 ("C2 Common Stock") on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as
follows:
1. PURCHASE AND SALE OF THE SUBJECT SHARES. Subject to the terms
and conditions of this Agreement, each Selling Shareholder hereby transfers, and
C2 hereby purchases, the Subject Shares held by each Selling Shareholder in
exchange for shares of C2 Common Stock as detailed on the attached Schedule 1.
2. PURCHASE PRICE; EXCHANGE OF SHARES.
2.1. UPON THE EXECUTION OF THIS AGREEMENT AND DELIVERY BY EACH
SELLING SHAREHOLDER OF A STOCK CERTIFICATE OR CERTIFICATES, DULY ENDORSED
FOR TRANSFER OR ACCOMPANIED BY DULY EXECUTED STOCK POWERS, REPRESENTING THE
SUBJECT SHARES BEING TRANSFERRED BY SUCH SELLING SHAREHOLDER HEREUNDER,
EACH SELLING SHAREHOLDER SHALL BE ENTITLED TO RECEIVE IN EXCHANGE FOR HIS
OR HER SUBJECT SHARES THAT NUMBER OF SHARES OF C2 COMMON STOCK EQUAL TO THE
PRODUCT OF (a) THE NUMBER OF SUBJECT SHARES BEING SOLD BY SUCH SELLING
SHAREHOLDER (AS LISTED OPPOSITE THE SELLING SHAREHOLDER'S NAME ON SCHEDULE
1 ATTACHED HERETO) MULTIPLIED BY (b) 10.37401; PROVIDED, HOWEVER, THAT ANY
FRACTIONAL SHARE OF C2 COMMON STOCK RESULTING FROM SUCH CALCULATION SHALL
BE ROUNDED UP TO THE NEAREST WHOLE SHARE. THE NUMBER OF SHARES OF C2
COMMON STOCK TO BE RECEIVED BY EACH SELLING SHAREHOLDER IS SET FORTH ON
SUCH SCHEDULE 1.
2.2. UPON RECEIPT BY C2 OF A COPY OF THIS AGREEMENT DULY EXECUTED
BY A SELLING SHAREHOLDER AND DELIVERY BY SUCH SELLING SHAREHOLDER OF A
STOCK CERTIFICATE OR CERTIFICATES PURSUANT TO SECTION 2.1 ABOVE, C2 SHALL
PROMPTLY INSTRUCT ITS TRANSFER AGENT TO ISSUE AND DELIVER TO SUCH SELLING
SHAREHOLDER A STOCK CERTIFICATE REPRESENTING THAT NUMBER OF SHARES OF C2
COMMON STOCK BEING ISSUED TO SUCH SELLING SHAREHOLDER PURSUANT TO SECTION
2.1 ABOVE.
2.3. THE PARTIES ACKNOWLEDGE AND AGREE THAT NO CONSIDERATION IS
BEING PAID TO THE SELLING SHAREHOLDERS FOR THE SUBJECT SHARES OTHER THAN
THE SHARES OF C2 COMMON STOCK BEING ISSUED TO THE SELLING SHAREHOLDERS
PURSUANT TO SECTION 2.1 ABOVE.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS.
Each of the Selling Shareholders severally, but not
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jointly, makes to C2 the following representations and warranties, each of which
is true and correct on the date hereof and shall survive the closing of the
transactions provided for herein.
(a) THE SELLING SHAREHOLDER HAS, AND C2 WILL RECEIVE,
GOOD AND MARKETABLE TITLE TO THE SUBJECT SHARES BEING TRANSFERRED BY
SUCH SELLING SHAREHOLDER HEREUNDER, FREE AND CLEAR OF ALL MORTGAGES,
LIENS, SECURITY INTERESTS, CLAIMS, PLEDGES, LICENSES, EQUITIES,
OPTIONS, OR OTHER CHARGES OR ENCUMBRANCES OF ANY NATURE WHATSOEVER.
(b) THE SELLING SHAREHOLDER HAS FULL POWER, LEGAL RIGHT
AND AUTHORITY TO ENTER INTO, EXECUTE AND DELIVER THIS AGREEMENT AND TO
CARRY OUT THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) THE SELLING SHAREHOLDER ACKNOWLEDGES THAT (i) C2 HAS
MADE AVAILABLE ALL INFORMATION THAT HE OR SHE HAS REQUESTED CONCERNING
C2 AND THE EXCHANGE OF THE SUBJECT SHARES FOR SHARES OF C2 COMMON STOCK
(THE "EXCHANGE"); (ii) THE SELLING SHAREHOLDER HAS BEEN AFFORDED AN
OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM C2 MANAGEMENT
CONCERNING C2, ITS BUSINESS, FINANCIAL RESULTS AND PROSPECTS, AND THE
TERMS AND CONDITIONS OF THE EXCHANGE (INCLUDING, BUT NOT LIMITED TO, A
TELEPHONIC DISCUSSION HELD ON FRIDAY, DECEMBER 27, 2002, BETWEEN
XXXXXXX X. XXXXXXX, C2'S PRESIDENT AND CHIEF EXECUTIVE OFFICER, AND THE
SELLING SHAREHOLDERS); AND (iii) THE SELLING SHAREHOLDER HAS HAD THE
OPPORTUNITY TO OBTAIN ANY ADDITIONAL INFORMATION NECESSARY TO VERIFY
THE ACCURACY OF INFORMATION OTHERWISE FURNISHED BY C2; ALL OF THE
INFORMATION SO REQUESTED HAS BEEN PROVIDED, AND THE SELLING SHAREHOLDER
REQUIRES NO ADDITIONAL INFORMATION TO EVALUATE THE MERITS AND RISKS OF
THE EXCHANGE AND AN INVESTMENT IN C2 COMMON STOCK. EACH SELLING
SHAREHOLDER ACKNOWLEDGES THAT INFORMATION ABOUT C2, ITS BUSINESS,
FINANCIAL RESULTS, PROSPECTS AND OTHER RELEVANT MATTERS IS READILY
AVAILABLE TO SUCH SELLING SHAREHOLDER BY ACCESSING THE SECURITIES AND
EXCHANGE COMMISSION'S XXXXX DATABASE AT XXX.XXX.XXX.
(d) THE SELLING SHAREHOLDER ACKNOWLEDGES THAT HE OR SHE
IS FINANCIALLY SOPHISTICATED, THAT HE OR SHE HAS MADE HIS OR HER OWN
INDEPENDENT DETERMINATION OF THE VALUE OF THE SUBJECT SHARES AND THE
VALUE OF A SHARE OF C2 COMMON STOCK, AND THAT THE EXCHANGE RATIO FOR
THE SUBJECT SHARES WAS DETERMINED THROUGH ARMS' LENGTH NEGOTIATION. THE
SELLING SHAREHOLDER ACKNOWLEDGES THAT HE OR SHE HAS NOT RELIED ON ANY
ORAL REPRESENTATION OR STATEMENT FROM ANY OF THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AFFILIATES OR REPRESENTATIVES OF C2 WITH RESPECT TO
THE EXCHANGE, C2, THE VALUE OF THE SUBJECT SHARES, THE VALUE OF THE C2
COMMON STOCK TO BE RECEIVED IN EXCHANGE THEREFOR OR OTHERWISE, AND
FURTHER ACKNOWLEDGES THAT ALL REPRESENTATIONS, WARRANTIES, AGREEMENTS
AND UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT TO THE EXCHANGE OF
THE SUBJECT SHARES FOR SHARES OF C2 COMMON STOCK ARE SET FORTH IN THIS
AGREEMENT.
(e) THE SELLING SHAREHOLDER HAS SUCH KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS CAPABLE
OF EVALUATING THE MERITS AND RISKS OF ACQUIRING SHARES OF C2 COMMON
STOCK AND OF MAKING AN INFORMED INVESTMENT DECISION WITH RESPECT
THERETO; THE SELLING SHAREHOLDER HAS REVIEWED ALL OF THE INFORMATION
PROVIDED BY C2, INCLUDING, WITHOUT LIMITATION, ALL PERIODIC REPORTS
FILED BY C2 WITH THE SECURITIES EXCHANGE COMMISSION (THE "SEC") DURING
THE LAST THREE YEARS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED ("EXCHANGE ACT"), AND BY VIRTUE OF SUCH REVIEW THE SELLING
SHAREHOLDER UNDERSTANDS THE MERITS AND RISKS OF AN INVESTMENT IN SHARES
OF C2 COMMON STOCK. AS NOTED EARLIER, C2'S PERIODIC REPORTS AND OTHER
FILINGS MADE WITH THE SEC PURSUANT TO THE EXCHANGE ACT ARE READILY
AVAILABLE TO EACH SELLING SHAREHOLDER BY ACCESSING THE SEC'S XXXXX
DATABASE AT XXX.XXX.XXX.
(f) THE SELLING SHAREHOLDER ACKNOWLEDGES THAT C2'S LEGAL
COUNSEL HAS PREPARED THIS AGREEMENT AT THE DIRECTION OF C2 AND HE OR
SHE HAS RECEIVED NO REPRESENTATION FROM C2'S LEGAL COUNSEL ABOUT THE
LEGAL, TAX OR OTHER CONSEQUENCES OF THIS AGREEMENT AND/OR THE
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TRANSACTIONS CONTEMPLATED HEREBY. THE SELLING SHAREHOLDER HAS RELIED
UPON HIS OR HER OWN LEGAL AND TAX COUNSEL TO THE EXTENT HE OR SHE DEEMS
NECESSARY AS TO ALL MATTERS AND QUESTIONS CONCERNING THE EXCHANGE AND
AN INVESTMENT IN SHARES OF C2 COMMON STOCK, AND THE SELLING SHAREHOLDER
HAS NOT RELIED UPON ANY OPINION, WRITTEN OR ORAL, OF C2, ITS LEGAL
COUNSEL OR ACCOUNTANTS. FURTHERMORE, THE SELLING SHAREHOLDER HAS
OBTAINED, TO THE EXTENT HE OR SHE DEEMS NECESSARY, HIS OR HER OWN
PROFESSIONAL ADVICE WITH RESPECT TO THE RISKS INVOLVED WITH THE
EXCHANGE AND AN INVESTMENT IN SHARES OF C2 COMMON STOCK, AND THE
SUITABILITY OF THE INVESTMENT IN C2 COMMON STOCK IN LIGHT OR HIS OR HER
PERSONAL FINANCIAL CONDITION AND INVESTMENT NEEDS.
(g) THE SELLING SHAREHOLDER'S FINANCIAL CONDITION IS SUCH
THAT SUCH SELLING SHAREHOLDER IS ABLE TO BEAR THE RISK OF HOLDING
SHARES OF C2 COMMON STOCK FOR AN INDEFINITE PERIOD OF TIME AND THE RISK
OF LOSS OF THE ENTIRE INVESTMENT IN C2 COMMON STOCK. THE SELLING
SHAREHOLDER BELIEVES THAT THE INVESTMENT IN SHARES OF C2 COMMON STOCK
IS SUITABLE FOR HIM OR HER BASED UPON HIS OR HER INVESTMENT OBJECTIVES
AND FINANCIAL NEEDS, AND HE OR SHE HAS ADEQUATE MEANS FOR PROVIDING FOR
CURRENT FINANCIAL NEEDS AND CONTINGENCIES AND HAS NO NEED FOR LIQUIDITY
OF INVESTMENT WITH RESPECT TO SHARES OF C2 COMMON STOCK.
(h) THE SELLING SHAREHOLDER UNDERSTANDS AND ACKNOWLEDGES
THAT THE SHARES OF C2 COMMON STOCK HE OR SHE RECEIVES IN THE EXCHANGE
HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"), IN RELIANCE UPON THE EXEMPTION FROM
REGISTRATION THEREUNDER AVAILABLE UNDER SECTION 4(2) OF THE 1933 ACT
AND/OR REGULATION D THEREUNDER, AND HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER ANY STATE SECURITIES LAWS IN RELIANCE UPON CERTAIN
EXEMPTIONS THEREFROM, IN EACH CASE BASED IN PART UPON THE
REPRESENTATIONS MADE HEREIN. AS A RESULT, THE SELLING SHAREHOLDER
UNDERSTANDS AND ACKNOWLEDGES THAT SUCH SHARES OF C2 COMMON SHARES MAY
NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN
THE UNITED STATES OR ANY OF ITS TERRITORIES IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR AN EXEMPTION
FROM REGISTRATION UNDER THE 1933 ACT AND THE RULES AND REGULATIONS
PROMULGATED BY THE SEC THEREUNDER. THE SELLING SHAREHOLDER UNDERSTANDS
AND ACKNOWLEDGES THAT C2 IS UNDER NO OBLIGATION TO EFFECT REGISTRATION
UNDER THE 1933 ACT OF THE SHARES OF C2 COMMON STOCK RECEIVED BY THE
SELLING SHAREHOLDERS IN THE EXCHANGE, AND THAT C2 HAS NO INTENTION OF
EFFECTING SUCH REGISTRATION.
(i) THE SELLING SHAREHOLDER UNDERSTANDS AND ACKNOWLEDGES
THAT THE SHARES OF C2 COMMON STOCK BEING RECEIVED IN THE EXCHANGE WILL
BE SUBJECT TO THE STRICT TRANSFER RESTRICTIONS OF RULE 144 UNDER THE
1933 ACT, INCLUDING RULE 144'S VOLUME LIMITATIONS AND ITS REQUIREMENTS
AS TO AVAILABLE PUBLIC INFORMATION ABOUT C2 AND HOLDING PERIOD FOR THE
SHARES OF C2 COMMON STOCK. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE SELLING SHAREHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT
THE SHARES OF C2 COMMON STOCK BEING RECEIVED IN THE EXCHANGE WILL BE
SUBJECT UNDER RULE 144 TO A ONE-YEAR HOLDING PERIOD BEFORE SALE IS
POSSIBLE. THE SELLING SHAREHOLDER IS FAMILIAR WITH THE PROVISIONS OF
RULE 144 AND THE LIMITATIONS UPON THE AVAILABILITY AND APPLICABILITY OF
SUCH RULE. THE SELLING SHAREHOLDER UNDERSTANDS AND ACKNOWLEDGES THAT A
RESTRICTIVE LEGEND OR LEGENDS WILL BE PLACED ON THE CERTIFICATE(S)
REPRESENTING, OR ANY STATEMENT DESCRIBING, HIS OR HER SHARES OF C2
COMMON STOCK RECEIVED IN THE EXCHANGE.
(j) THE SELLING SHAREHOLDER REPRESENTS THAT HE OR SHE IS
A BONA FIDE RESIDENT OF THE STATE OF WISCONSIN.
(k) THE SHARES OF C2 COMMON STOCK RECEIVED IN THE
EXCHANGE ARE BEING ACQUIRED FOR THE SELLING SHAREHOLDER'S OWN ACCOUNT
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR SALE IN
CONNECTION WITH, THE DISTRIBUTION THEREOF WITHIN THE MEANING OF THE
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1933 ACT AND WILL NOT BE TRANSFERRED BY HIM OR HER IN VIOLATION OF THE
1933 ACT OR THE THEN APPLICABLE RULES AND REGULATIONS THEREUNDER.
4. REPRESENTATIONS AND WARRANTIES OF C2. C2 makes to the
Selling Shareholders the following representations and warranties, each of which
is true and correct on the date hereof and shall survive the closing of the
transactions provided for herein.
(a) C2 IS A CORPORATION VALIDLY EXISTING AND IN ACTIVE
STATUS UNDER THE LAWS OF THE STATE OF WISCONSIN.
(b) C2 HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY TO
EXECUTE, DELIVER AND PERFORM THIS AGREEMENT, INCLUDING THE PURCHASE OF
THE SUBJECT SHARES AND THE ISSUANCE OF SHARES OF C2 COMMON STOCK AS
PROVIDED HEREIN.
(c) C2 IS ACQUIRING THE SUBJECT SHARES FOR ITS OWN
ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR SALE IN
CONNECTION WITH, THE DISTRIBUTION THEREOF WITHIN THE MEANING OF THE
1933 ACT.
(d) C2 HAS TAKEN ALL NECESSARY CORPORATE ACTION
(INCLUDING, WITHOUT LIMITATION, THE APPROVAL OF ITS BOARD OF DIRECTORS)
TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN. THIS
AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY C2 AND
CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF C2, ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEMENT MAY BE LIMITED
BY BANKRUPTCY, INSOLVENCY, MORATORIUM OR OTHER SIMILAR LAWS OR
EQUITABLE PRINCIPLES PRESENTLY OR HEREAFTER IN EFFECT AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
(e) THE SHARES OF C2 COMMON STOCK ISSUABLE TO THE SELLING
SHAREHOLDERS PURSUANT TO SECTION 2 OF THIS AGREEMENT, WHEN ISSUED IN
ACCORDANCE WITH THE PROVISIONS HEREOF, WILL BE VALIDLY ISSUED, FULLY
PAID, NONASSESSABLE (EXCEPT TO THE EXTENT PROVIDED IN SECTION
180.0622(2)(b) OF THE WISCONSIN BUSINESS CORPORATION LAW) AND FREE OF
PREEMPTIVE RIGHTS.
(f) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT BY C2 AND THE CONSUMMATION BY IT OF THE TRANSACTIONS
CONTEMPLATED HEREIN DO NOT REQUIRE THE CONSENT, WAIVER, APPROVAL,
LICENSE OR AUTHORIZATION OF ANY THIRD PARTY OR PUBLIC AUTHORITY; DO NOT
VIOLATE, WITH OR WITHOUT THE GIVING OF NOTICE AND/OR THE PASSAGE OF
TIME, ANY PROVISION OF LAW APPLICABLE TO C2 OR C2'S AMENDED AND
RESTATED ARTICLES OF INCORPORATION OR BYLAWS; AND DO NOT CONFLICT WITH
OR RESULT IN A MATERIAL BREACH OR TERMINATION OF ANY MATERIAL PROVISION
OF, OR CONSTITUTE A MATERIAL DEFAULT UNDER, OR RESULT IN THE CREATION
OF ANY MATERIAL LIEN, CHARGE OR ENCUMBRANCE UPON ANY OF THE MATERIAL
PROPERTY, ASSETS OR CAPITAL STOCK OF C2 PURSUANT TO ANY MORTGAGE, DEED
OF TRUST, INDENTURE, OR OTHER AGREEMENT OR INSTRUMENT, OR ANY ORDER,
JUDGMENT, DECREE, STATUTE, REGULATION OR ANY OTHER COMPARABLE
RESTRICTION TO WHICH C2 IS A PARTY OR BY WHICH C2 OR ANY OF ITS ASSETS
MAY BE BOUND.
5. INDEMNIFICATION.
5.1. by selling shareholders. EACH SELLING SHAREHOLDER
AGREES TO INDEMNIFY, DEFEND AND HOLD C2, AND ITS OFFICERS, EMPLOYEES,
AFFILIATES, REPRESENTATIVES, AGENTS, SUCCESSORS AND PERMITTED ASSIGNS.
FROM AND AGAINST ANY CLAIMS, LIABILITIES, ACTIONS, DAMAGES, COSTS OR
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) RESULTING FROM, OR
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ARISING OUT OF THE INACCURACY OR BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT MADE BY SUCH SELLING SHAREHOLDER IN
THIS AGREEMENT.
5.2. BY C2. C2 AGREES TO INDEMNIFY, DEFEND AND HOLD EACH
SELLING SHAREHOLDER, AND HIS OR HER RESPECTIVE REPRESENTATIVES, AGENTS,
SUCCESSORS AND PERMITTED ASSIGNS, HARMLESS FROM AND AGAINST ANY CLAIMS,
LIABILITIES, ACTIONS, DAMAGES, COSTS OR EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) RESULTING FROM, OR ARISING OUT OF THE INACCURACY OR
BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT MADE BY
C2 IN THIS AGREEMENT.
6. COORDINATION WITH EMPLOYEE STOCK AGREEMENT. Zero
Zone, C2, and Selling Shareholders Xxxxxx X. Xx Xxxxxx, Xxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxx, Xxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxxxx are parties to that certain
Employee Stock Agreement, dated as of March 12, 1999 (the "Employee Stock
Agreement"). Such parties covenant and agree that the rights and obligations
undertaken by each of them in the Employee Stock Agreement shall continue in
full force and effect, notwithstanding the sale of the Subject Shares to C2,
except that the Employee Stock Agreement is hereby amended to delete Articles I
through IX and Sections 11.1, 11.2, 11.9 and 11.15 in their entirety and they
shall be of no further force or effect. Such parties covenant and agree that
Article X and Sections 11.3, 11.4, 11.5, 11.6, 11.7. 11.8, 11.10, 11.11, 11.12,
11.13 and 11.14 of the Employee Stock Agreement shall continue in full force and
effect.
7. COORDINATION WITH MANAGEMENT STOCK AGREEMENT. Zero
Zone, C2 and Selling Shareholder Xxxx Van Der Ploeg are parties to that certain
Management Stock Agreement, dated as of March 12, 1999 (the "Management Stock
Agreement"). Such parties covenant and agree that the rights and obligations
undertaken by each of them in the Management Stock Agreement shall continue in
full force and effect, notwithstanding the sale of the Subject Shares to C2,
except that the Management Stock Agreement shall be amended by deleting Articles
I through IX and Sections 11.1, 11.2, 11.9 and 11.15 in their entirety and they
shall be of no force or effect. Such parties covenant and agree that Article X
and Sections 11.3, 11.4, 11.5, 11.6, 11.7, 11.8, 11.10, 11.11, 11.12, 11.13 and
11.14 of the Management Stock Agreement shall continue in full force and effect.
Such parties understand and agree that any Zero Zone promissory note issued to
Selling Shareholder Xxxx Van Der Ploeg pursuant to Section 8.2 of the Management
Stock Agreement shall be unaffected by the amendments provided above, and that
any such promissory note shall be enforceable in accordance with its terms.
8. MISCELLANEOUS.
8.1. THE RIGHTS OF A PARTY HEREUNDER MAY NOT BE ASSIGNED
OR TRANSFERRED WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES
HERETO.
8.2. EACH SELLING SHAREHOLDER IS SEVERALLY, AND NOT
JOINTLY, MAKING THE REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS CONTAINED IN THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS
OF EACH SELLING SHAREHOLDER UNDER THIS AGREEMENT SHALL BE ENFORCEABLE,
AND SHALL CONTINUE IN FULL FORCE AND EFFECT, ACCORDING TO THEIR
RESPECTIVE TERMS NOTWITHSTANDING THE INACCURACY OR BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT BY ANY OTHER SELLING
SHAREHOLDER UNDER THIS AGREEMENT.
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8.3. THIS AGREEMENT MAY NOT BE MODIFIED OR TERMINATED ORALLY, AND
ANY PROPOSED AMENDMENT OR MODIFICATION SHALL BE IN WRITING AND SIGNED BY
THE PARTIES HERETO. THIS DOCUMENT SETS FORTH THE ENTIRE AGREEMENT BETWEEN
THE PARTIES HERETO WITH RESPECT TO THE EXCHANGE OF THE SUBJECT SHARES FOR
SHARES OF C2 COMMON STOCK.
8.4. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF WISCONSIN, EXCLUDING ANY
CHOICE OF LAW RULES.
8.5. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF WHICH
SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH WHEN TAKEN TOGETHER SHALL
CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
C2, INC. ("C2") ZERO ZONE, INC. ("ZERO ZONE")
By:________________________________ By:___________________________________
Title:_____________________________ Title:________________________________
SELLING SHAREHOLDERS:
___________________________________ ______________________________________
Xxxx Van Der Xxxxx Xxxxxx X. Xxxxx
___________________________________ ______________________________________
Xxxxxx X. Xx Xxxxxx Xxxxx X. Xxxxxxxxxx
___________________________________ ______________________________________
Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxx
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