Exhibit 10(b)
AGREEMENT
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THIS AGREEMENT is made this 11th day of July, 2001 by and between X.X.
Xxxxx Corporation, an Ohio corporation whose principal offices are located at
00000 Xxxxxxxx Xxxx, X.X., Xxxxxxxxxxxx, Xxxx 00000 ("Xxxxx") and X. Xxxxxxxx &
Co., Inc., a New Jersey corporation whose principal offices are located at 00
Xxxx Xxxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Xxxxxxxx").
W I T N E S S E T H:
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WHEREAS, Xxxxxxxx and Xxxxx are manufacturers of footwear products; and
WHEREAS, Xxxxx would benefit from the immediate acceleration of tariff
elimination (the "Accelerated NAFTA Tariff Elimination") under the North
American Free Trade Agreement ("NAFTA") for slipper-type footwear classified
under the HTS Subheadings 6404.19.35, 6404.19.50 and 6404.19.70 (the
"Footwear"); and
WHEREAS, Xxxxx has requested Xxxxxxxx'x support for the Accelerated
NAFTA Tariff Elimination; and
WHEREAS, Xxxxxxxx is willing to support the Accelerated NAFTA Tariff
Elimination and will cooperate in Barry's efforts to seek such accelerated
tariff elimination so long as Xxxxx provides financial assistance to Xxxxxxxx to
offset certain of the anticipated costs to Xxxxxxxx resulting from an
earlier-than-expected termination of tariffs on the Footwear; and
WHEREAS, Xxxxx is willing to provide such financial assistance to
Xxxxxxxx if the Accelerated NAFTA Tariff Elimination is approved by the
necessary governmental bodies under NAFTA and is fully implemented on or before
April 1, 2002.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth below, the parties hereto agree as follows:
1. Xxxxxxxx agrees on or before July 13, 2001 to send by electronic
mail transmission (with a hard copy to follow by regular United States mail) a
letter, executed by its President (the "Letter"), to the United States Trade
Representative stating that Xxxxxxxx supports tariff acceleration under NAFTA
for footwear covered in HTS numbers 6404.19.35, 6406.19.50 and 6404.19.70.
Xxxxxxxx will not withdraw the Letter, issue any other communications
inconsistent with the Letter, or take any other action that is inconsistent with
the Letter through April 1, 2002 unless this Agreement is extended beyond that
date by agreement of the parties.
2. If Xxxxxxxx complies with its obligations under this Agreement and
the Accelerated NAFTA Tariff Elimination is approved by the necessary
governmental authorities and is fully implemented on or before April 1, 2002,
such that all U.S. tariffs and duties on Footwear imported from Mexico are
permanently eliminated, subject to the provisions of Annex 1 to this Agreement,
Xxxxx will pay to Xxxxxxxx the total amount of U.S. $6,000,000, in sixteen
(16) quarterly installments of $375,000 each, commencing on April 1, 2002 and
continuing on the first day of each July, October, December and April thereafter
until December 1, 2005 on which date the last payment shall be due; PROVIDED,
HOWEVER, if the implementation of the Accelerated NAFTA Tariff Elimination
occurs after January 1, 2002 and before April 2, 2002, the first of such sixteen
payments shall be due on July 1, 2002 with the remaining fifteen payments being
made on the first day of each October, December, April and July thereafter until
April 1, 2006 on which date the last payment shall be due. All payments by Xxxxx
to Xxxxxxxx under this Agreement shall be made by wire transfer of immediately
available funds to a bank account designated for that purpose by Xxxxxxxx. If
the Accelerated NAFTA Tariff Elimination has not been fully implemented by April
1, 2002, this Agreement shall terminate and be null and void.
3. Xxxxx and Xxxxxxxx agree to the provisions of Annex 1 attached
hereto and made a part hereof.
4. Xxxxx and Xxxxxxxx will not issue any press release or make any
public statement concerning this Agreement or the transactions contemplated
hereby without obtaining the prior written consent of the other party hereto,
which consent will not be unreasonably withheld, PROVIDED that Xxxxx shall not
be prohibited by this Agreement or any other agreement between the parties from
issuing any such press release or making any such public statement or filing
this Agreement or making any other filing with the Securities and Exchange
Commission, the New York Stock Exchange or any other governmental or regulatory
agency or body if such disclosure or filing is required or deemed advisable by
legal counsel to Xxxxx under applicable securities laws or any other applicable
laws or regulations or the rules of the New York Stock Exchange. Xxxxx will use
its reasonable best efforts to furnish a copy of any such disclosure or filing
to Xxxxxxxx for review and opportunity to comment at least five business days
before it makes any such filing or disclosure required under applicable
securities laws or the rules of the New York Stock Exchange or other laws or
regulations, but in any event at least two business days before such filing or
disclosure.
5. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior understandings, agreements or representations by
or between the parties, written or oral, to the extent they related in any way
to the subject matter hereof.
6. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns, and any other person or entity
which may hereafter acquire or succeed to all or substantially all of the
business or assets of Xxxxx or Xxxxxxxx by any means, whether direct or
indirect, by purchase, merger, consolidation, or otherwise.
7. 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.
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8. All notices, requests, demands, claims and other communications
hereunder will be in writing. Any notice, request, demand, claim or other
communications hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Xxxxx: X.X. Xxxxx Corporation
00000 Xxxxxxxx Xxxx, X.X.
Xxxxxxxxxxxx, Xxxx 00000
Attention: Chairman
If to Xxxxxxxx: X. Xxxxxxxx & Co., Inc.
00 Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
Any party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any party
may change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
9. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Delaware without giving effect to any choice
or conflict of law provision or rule.
10. Any dispute or claim arising out of or connected with or related to
this Agreement, including whether such dispute or claim is arbitrable, will be
settled by arbitration. The arbitration proceedings will be conducted in New
York City under the Commercial Arbitration Rules of the American Arbitration
Association in effect at the time the demand for arbitration is made. The
decision of the arbitrators, including determination of amount of any award,
will be exclusive, final and binding on the parties hereto, their successors and
assigns. Each party hereto will bear its own expenses in the arbitration for
arbitrators' fees and attorneys' fees, for its witnesses and other expenses of
presenting its case. Other arbitration costs, including administrative fees and
fees for records or transcripts, will be borne equally by the parties hereto.
Discovery will be in accordance with the Commercial Arbitration Rules of the
American Arbitration Association.
11. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by the parties hereto. No waiver
by any party of any default or breach hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default or breach hereunder
or affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
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12. It is a desire and intent of the parties that the terms, provisions
and covenants contained in this Agreement shall be enforceable to the fullest
extent permitted by law. If any such term, provision or covenant of this
Agreement or the application thereof to any person or circumstances shall, to
any extent, be construed to be invalid or unenforceable in whole or in part,
then such term, provision or covenant shall be construed in a manner so as to
permit its enforceability under the applicable law to the fullest extent
permitted by law. In any case, the remaining provisions of this Agreement or the
application thereof to any person or circumstances other than those to which
they have been held invalid or unenforceable, shall remain in full force and
effect.
IN WITNESS WHEREOF, Xxxxx and Xxxxxxxx have executed this Agreement as
of the date first above written.
X.X. XXXXX CORPORATION
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Chairman
X. XXXXXXXX & CO., INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: XXXXXXX XXXXXX
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Title: PRESIDENT
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ANNEX 1
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SUBORDINATION
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Xxxxx and Xxxxxxxx covenant and agree that, to the extent and in the
manner hereinafter set forth herein, the obligations of Xxxxx represented by
this Agreement (the "Subordinated Obligation") are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of the
payment of the principal of (and premium, if any) and interest and other
obligations under (a) that certain Loan Agreement (the "Loan Agreement") dated
as of March 12, 2001 among Xxxxx and The Huntington National Bank ("Bank"),
providing for extensions of credit to Xxxxx, as the same may amended, modified,
supplemented, extended and refinanced from time to time, (b) that certain note
agreement between Xxxxx and Metropolitan Life Insurance Company ("Metropolitan",
and collectively with Bank and their respective successors, assigns, the
refinancing lenders and the financial institutions described in (c) below, the
"Senior Creditors") dated July 5, 1994 with respect to a $15,000,000 extension
of credit, as the same may amended, modified, supplemented, extended and
refinanced from time to time and (c) any future credit facility obtained by
Xxxxx from time to time with one or more financial institutions to the extent
such subordination is required by such financial institution or institutions as
a condition to providing the credit facility (collectively, the "Senior
Indebtedness"). Under Barry's request, Xxxxxxxx will execute and deliver to
Xxxxx a reaffirmation of the subordination effected by the terms and conditions
of this Annex 1 in favor of one or more Senior Creditors.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to Xxxxx or to its creditors, as
such, or to its assets, or (b) any liquidation, dissolution or other winding-up
of Xxxxx, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of Xxxxx, then and in any such
event the Senior Creditors shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the Senior Creditors, before Xxxxxxxx is
entitled to receive any payment on account of the Subordinated Obligation, and
to that end the Senior Creditors shall be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or deliverable in
respect of the Subordinated Obligation in any such case, proceeding,
dissolution, liquidation or other winding-up or event.
In the event that, notwithstanding the foregoing provisions, Xxxxxxxx
shall have received any payment or distribution of assets of Senior Creditors
prohibited by the foregoing paragraph of any kind or character, whether in cash,
property or securities, before all Senior Indebtedness is paid in full or
payment thereof provided for, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of Xxxxx for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the Senior Creditors. For purposes hereof, the
words "cash, property or securities" shall not be deemed to include shares of
capital stock of Xxxxx as reorganized or
readjusted, or securities of Xxxxx or any other corporation provided for by a
plan of reorganization or readjustment which in either case are subordinated in
right of payment to all Senior Indebtedness which may at the time be outstanding
to substantially the same extent as, or to a greater extent than, the
Subordinated Obligation is so subordinated as provided herein.
In the event and during the continuation of (a) any default in the
payment of principal of or interest on any Senior Indebtedness with respect
thereto (unless and until such payment default shall have been cured or waived
in writing by the holders of such Senior Indebtedness), or (b) any default
(other than a payment default) with respect to Senior Indebtedness occurs and is
continuing that permits the acceleration of the maturity thereof, then no
payment shall be made by Xxxxx on account of the Subordinated Obligation.
Notwithstanding the foregoing, the scheduled payments on the Subordinated
Obligation provided for in Paragraph 2 of the Agreement ("Scheduled Payments")
may resume when the default with respect to the Senior Indebtedness is cured or
waived or ceases to exist. In the event that, notwithstanding the foregoing,
Xxxxx shall make any payment to Xxxxxxxx prohibited by this paragraph, then and
in such event such payment shall be held in trust for the benefit of and paid
over and delivered forthwith to the Senior Creditors.
Nothing contained herein shall prevent Xxxxx, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company or except under the conditions described
in the paragraph immediately above, from making Scheduled Payments at any time
of the Subordinated Obligation.
The subordination provisions herein are intended solely for the purpose
of defining the relative rights of Xxxxxxxx on one hand and the Senior Creditors
on the other hand. Nothing contained herein is intended to or shall (a) impair,
as among Xxxxx, its creditors other than the Senior Creditors and Xxxxxxxx, the
obligation of Xxxxx, which is absolute and unconditional (and which, subject to
the rights under this Agreement of the Senior Creditors, is intended to rank
equally with all other general obligations of Xxxxx), to pay to Xxxxxxxx the
Subordinated Obligation and the Scheduled Payments thereof under this Agreement
as and when the same shall become due and payable in accordance with its terms;
or (b) affect the relative rights against Xxxxx of Xxxxxxxx and creditors of
Xxxxx other than the Senior Creditors; or (c) prevent Xxxxxxxx from exercising
all remedies otherwise permitted by applicable law upon default under this
Agreement, subject to the rights, if any, hereunder of the Senior Creditors to
receive cash, property and securities otherwise payable or deliverable to the
Senior Creditors.
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