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STOCK OPTION PURCHASE AGREEMENT
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STOCK OPTION PURCHASE AGREEMENT
by and among
XXXXX X. XXXXXXXXXX
CONNECTIVITY PRODUCTS INCORPORATED
(a Delaware corporation)
XXXXX XXXXXXXXX
SIGNAL SALES CORP.
(a Massachusetts corporation),
Dated as of December 17, 1996
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TABLE OF CONTENTS
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ARTICLE I PURCHASE AND SALE OF OPTION.................................. 1
Section 1.01. Purchase and Sale of Option.................................. 1
Section 1.02. Purchase Price............................................... 1
Section 1.03. Other Concurrent Transactions................................ 2
Section 1.04. Deliveries at the Closing; Further Assurances................ 2
Section 1.05. Interdependence.............................................. 2
Section 1.06. Consent of Company and Shareholder........................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND THE COMPANY.............................................. 2
Section 2.01. Corporate Organization and Good Standing..................... 3
Section 2.02. Capitalization of the Company................................ 3
Section 2.03. Validity and Terms of Option; Title to Option................ 3
Section 2.04. Authorization, Execution and Binding Effect.................. 4
Section 2.05. Consents and Approvals....................................... 4
Section 2.06. Compliance With Laws; Payment of Taxes....................... 4
Section 2.07. Financial Statements......................................... 5
Section 2.08. Net Worth; Absence of Undisclosed Liabilities................ 5
Section 2.09. Legal Proceedings............................................ 5
Section 2.10. Finders...................................................... 6
Section 2.11. No Misrepresentation or Omission............................. 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND THE SHAREHOLDER.......................................... 6
Section 3.01. Ownership of Shares, etc..................................... 6
Section 3.02. Validity and Terms of Option; Title to Option................ 6
Section 3.03. Authorization, Execution and Binding Effect.................. 7
Section 3.04. Consents and Approvals....................................... 7
Section 3.05. Legal Proceedings............................................ 7
Section 3.06. Knowledge as to Seller's and Company's Representations....... 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.................. 7
Section 4.01. Authorization, Execution and Binding Effect.................. 8
Section 4.02. Investment Intent............................................ 8
ARTICLE V MISCELLANEOUS................................................ 8
Section 5.01. Survival of Representations and Warranties; Indemnification;
Limitation on Damages........................................ 8
Section 5.02. Discontinuance of Business; Waiver of Purchase Rights........ 9
Section 5.03. Headings; Grammatical Usage.................................. 9
Section 5.04. Notices...................................................... 10
Section 5.05. Assignment; Third Parties.................................... 10
Section 5.06. Expenses..................................................... 10
Section 5.07. Complete Agreement........................................... 10
Section 5.08. Amendments and Waivers....................................... 11
Section 5.09. Counterparts................................................. 11
Section 5.10. Governing Law................................................ 11
Section 5.11. Action by Purchaser.......................................... 11
Exhibit A Option Agreement
Exhibit B Financial Statements
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STOCK OPTION PURCHASE AGREEMENT, dated as of December 17, 1996 (this
"AGREEMENT"), entered into by and among (1) XXXXX X. XXXXXXXXXX, a resident of
Ashburnham, Massachusetts (the "SELLER"); (2) CONNECTIVITY PRODUCTS
INCORPORATED, a Delaware Corporation (the "PURCHASER"); (3) XXXXX XXXXXXXXX, a
resident of the State of New York (the "SHAREHOLDER"); and (4) SIGNAL SALES
CORP., a Massachusetts corporation (the "COMPANY").
W I T N E S E T H:
WHEREAS, the Shareholder is the holder of one hundred (100) shares (the
"SHARES") of the Common Stock, no par value ("COMMON STOCK") of the Company; and
WHEREAS, the Seller currently owns an option, granted by the Shareholder as
of April 27, 1993 (the "OPTION"), to purchase all of the Shares from the
Shareholder at any time for an aggregate purchase price of $1.00, the terms and
conditions of which Option are set forth in the copy of the instrument granting
such Option attached as EXHIBIT A hereto (the "OPTION AGREEMENT"); and
WHEREAS, the Seller desires to sell and assign to the Purchaser, and the
Purchaser desires to purchase from the Seller, in accordance with the terms
hereof, the Option and all of the Seller's rights, title and interest in, to and
under the Option Agreement; and
WHEREAS, the Company and the Shareholder consent to such sale and
assignment of the Option and the Option Agreement to the Purchaser;
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants, conditions, agreements, and
undertakings hereinafter set forth, the sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF OPTION
Section 1.01. Purchase and Sale of Option
The Seller HEREBY SELLS, CONVEYS, ASSIGNS, TRANSFERS, AND DELIVERS the
Option, and all of the Seller's rights, title and interest in, to and under the
Option Agreement, to the Purchaser and Purchaser's successors and assigns
forever, free and clear of all liens, pledges, claims, charges, security
interests, and other encumbrances ("ENCUMBRANCES"), and the Purchaser hereby
purchases the Option and accepts assignment of the Option Agreement from the
Seller. The Purchaser does not hereby assume any liability or obligation
whatsoever of the Seller, including without limitation any such liability or
obligation under the Option Agreement.
Section 1.02. Purchase Price
The aggregate purchase price for the Option shall be SIX HUNDRED THOUSAND
DOLLARS ($600,000.00), of which $100,000 shall be payable to the Seller on the
date hereof and $500,000 shall be payable to the Seller on January 2, 1997, in
each case in cash by a bank or certified check or by wire transfer to an account
or accounts in the United States designated in writing by Seller.
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Section 1.03. Other Concurrent Transactions
Simultaneously with the execution and delivery of this Agreement, (i) the
Purchaser and the Company are entering into an agreement pursuant to which the
Purchaser is purchasing from the Company all rights in and to the Company's name
and certain other assets of the Company; and (ii) the Purchaser is entering into
an employment agreement (the "EMPLOYMENT AGREEMENT") with Xxxxxx Xxxxx ("XX.
XXXXX").
Section 1.04. Deliveries at the Closing; Further Assurances
(a) Simultaneously with the execution and delivery of this Agreement, the
Seller is also executing and delivering to the Purchaser such other documents of
assignment and other instruments, with any required documentary stamps affixed,
as, in the reasonable judgment of Purchaser and its counsel, are necessary to
vest in Purchaser good and valid title to the Option.
(b) In addition, the parties hereto agree that each will execute and
deliver to the other any and all documents in addition to those expressly
provided for in this Agreement that may be reasonably necessary or appropriate
to carry out the purposes of this Agreement and the transactions contemplated
hereby, whether on or after the date hereof.
Section 1.05. Interdependence
The transfers and deliveries described in Sections 1.01, 1.02, 1.03 and
1.04(a) hereof are mutually interdependent and regarded as occurring
simultaneously; and, unless waived by both the Purchaser and the Seller, none of
the transactions described in Sections 1.01, 1.02, 1.03 and 1.04(a) hereof shall
become effective unless and until all other transfers and deliveries provided
for in such Sections (including without limitation the execution and delivery of
the Employment Agreement) have also been consummated.
Section 1.06. Consent of Company and Shareholder
The Company and the Shareholder each hereby consent to the transactions
contemplated by this Agreement including without limitation (i) the purchase of
the Option by the Purchaser and the assignment to the Purchaser of all of the
Seller's rights, title and interest in, to and under the Option Agreement, (ii)
the employment by the Purchaser of Xx. Xxxxx pursuant to the Employment
Agreement, and (iii) the use by the Purchaser from and after the date hereof,
without limitation or restriction and without any further payment or
consideration, of any and all customer lists and other information heretofore
acquired, developed or used by the Company or Xx. Xxxxx relating to the
businesses or the operations, employees or customers of the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND THE COMPANY
The Seller and the Company, jointly and severally, hereby represent and
warrant to the Purchaser as follows, and the Seller and the Company acknowledge
and confirm that Purchaser is relying upon such representations and warranties
notwithstanding any investigation made by Purchaser or on its behalf:
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Section 2.01. Corporate Organization and Good Standing
The Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Massachusetts. The Company has all
requisite corporate power and authority to own, operate, and lease its
properties and to carry on its business as now being conducted. The Seller has
heretofore delivered to the Purchaser complete and correct copies of the
Company's Articles of Organization and By-Laws, each as amended and in effect on
the date hereof.
Section 2.02. Capitalization of the Company
(a) The Company is authorized to issue 2,000 shares of Common Stock, of
which the Shares are the only shares of Common Stock issued and outstanding. All
of the Shares are held beneficially and of record by the Shareholder on the date
hereof. All of the outstanding shares of Common Stock have been duly authorized,
and are validly issued, fully paid and non-assessable.
(b) Other than the Shares, no shares of any class of capital stock or other
securities of the Company are issued or outstanding; and other than the Option,
there are no rights, subscriptions, warrants, options, conversion rights or
agreements of any kind outstanding to purchase or otherwise acquire from the
Company or from any other individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation or governmental entity or any
department, agency or political subdivision thereof (each, a "PERSON"),
including without limitation from the Shareholder or from the Seller, any shares
of the capital stock, or any other securities or obligations of the Company of
any kind whatsoever. There are no authorized, outstanding or existing proxies,
voting trusts or other agreements or understandings with respect to the voting
of the Shares.
(c) None of the shares of capital stock of the Company is subject to any
preemptive rights of any person, including, without limitation, present or
former stockholders of the Company.
Section 2.03. Validity and Terms of Option; Title to Option
(a) The Option Agreement grants to the Seller, and upon the execution and
delivery of this Agreement will grant to the Purchaser, the unrestricted right
to purchase, at any time, all of the outstanding capital stock of the Company
for an aggregate purchase price of $1.00. Without limiting the generality of the
foregoing, all of the terms and conditions of the Option are set forth in the
Option Agreement, a true and correct copy of which is attached as EXHIBIT A
hereto. The Option Agreement is in full force and effect and has not in any
respect been revised or amended.
(b) The Option Agreement has been duly executed and delivered by the
Shareholder and constitutes the legal, valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its terms.
(c) The Seller has the right, title, power and authority, without any
restriction whatsoever, to sell, assign, transfer and deliver the Option to the
Purchaser, and the Seller is hereby transferring to the Purchaser good and valid
title to the Option, free and clear of any Encumbrances or other rights
whatsoever of any other Person.
(d) The Seller has not offered the Option, and neither the Seller nor the
Company has sold or issued, or offered for sale, any other securities of the
Company, options or other rights to purchase securities of the Company or all or
any substantial portion of the assets of the Company (other
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than inventory offered or sold in the ordinary course of business) for sale to
any person or persons other than Purchaser, which, in the case of offers for
sale, remains outstanding on the date hereof or could give rise to liability on
the part of the Company or the Purchaser.
Section 2.04. Authorization, Execution and Binding Effect
The Company has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby and
thereby. The Board of Directors of the Company has duly authorized the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby and no other corporate proceedings on the part of the
Company are necessary to approve and authorize the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Seller, the Company and
the Shareholder and constitutes the legal, valid and binding agreement of each
of them, enforceable against each of them in accordance with its terms.
Section 2.05. Consents and Approvals
(a) Neither the execution and delivery by the Seller, the Company and the
Shareholder of this Agreement, nor the consummation by each of them of the
transactions contemplated hereby, nor compliance by the Seller, the Company and
the Shareholder with any of the provisions hereof will (i) violate or conflict
with any provision of the Articles of Organization or By-Laws of the Company,
(ii) result in a violation of any order, writ, injunction, decree, judgment or
ruling of any court or governmental authority, (iii) result in a violation of or
default under any law, rule or regulation applicable to the Seller, the Company
or the Shareholder, (iv) result in the material breach of or otherwise
materially affect any of the terms, conditions, or provisions of, any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit, contract,
agreement, or other instrument or commitment or obligation of the Seller, the
Company or the Shareholder, or (v) require any consent, approval, or
authorization of, or notice to, or declaration, filing, or registration with,
any governmental or regulatory authority or any other Person.
(b) Xx. Xxxxx is not bound or restricted by any employment agreement,
noncompetition covenant or any other contract, agreement or covenant that in any
way restricts or purports to restrict in any manner his right to enter into the
Employment Agreement and to perform his duties thereunder.
Section 2.06. Compliance With Laws; Payment of Taxes
(a) The Company is in, and since inception the Company has operated its
business in substantial compliance with, all laws, regulations, decrees and
orders applicable to the Company; and the Company is not in default or violation
of, or to the best knowledge of the Seller under investigation with respect to,
any of such laws, regulations decrees or orders; provided, however, that the
Company has not qualified to conduct business in the State of New York.
(b) The Company has duly and timely filed all reports and returns,
including without limitation tax returns, required to be filed by it with
governmental authorities, and all of such reports and returns were correct and
complete in all material respects.
(c) The Company has obtained all governmental permits and licenses and
other governmental consents which are required in connection with its business.
All of such permits, licenses
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and consents are in full force and effect, and no proceedings for the suspension
or cancellation of any of them is pending or, to the best knowledge of the
Seller, threatened.
(d) All taxes (which for purposes of this Agreement shall include all
federal, state, local, or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Code Section 59A), customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not) which are due and payable by the
Company have been paid in full, and the Company is not delinquent in the payment
of any taxes and has no tax deficiency or claim outstanding, proposed or
assessed against it, and there is no basis for any such deficiency or claim.
There is no dispute or claim concerning any taxes of the Company either (i)
claimed or raised by any authority in writing or (ii) as to which the Seller has
knowledge. No claim has ever been made in any jurisdiction where the Company
does not file tax returns that the Company is or may be subject to taxation by
that jurisdiction.
(e) The Company and the Predecessor Companies have withheld and paid all
taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder or other
Person.
Section 2.07. Financial Statements
(a) Attached hereto as EXHIBIT B are (i) the balance sheet of the Company
as of October 31, 1996 and (ii) the income statement of the Company for the
twelve months then ended (the "FINANCIAL STATEMENTS"). The Financial Statements
are correct and complete in all material respects and present fairly and
accurately the financial position of the Company as of the dates of such
Financial Statements and the results of operations of the Company for the
periods covered by such Financial Statements. All accounts receivable reflected
on the balance sheets of the Company have arisen from bona fide transactions in
the ordinary course of business of the Company and represent valid and binding
obligations due to the Company enforceable in accordance with their terms.
Section 2.08. Net Worth; Absence of Undisclosed Liabilities
The Company has a net worth of not less than $50,000. The Company has no
liabilities (known or unknown, absolute, contingent or otherwise), other than:
(i) those reflected or reserved against on the most recent balance sheet of the
Company included in the Financial Statements, and (ii) those incurred since the
date of such balance sheet in the ordinary course of business in arms' length
transactions with Persons not affiliated with or related to the Company and
which do not have and cannot reasonably be expected to have, in the aggregate, a
material adverse effect on the assets, business, operations, income, prospects
or condition (financial or otherwise) of the Company.
Section 2.09. Legal Proceedings
There are no claims, actions, suits, arbitrations, inquiries,
investigations, or proceedings pending or, to the best knowledge of the Seller,
threatened or imminent, (i) against or relating to the Company, (ii) against or
relating to the Seller or the Shareholder to the extent that any such claim,
action, suit, arbitration, inquiry, investigation, or proceeding (individually
or together) could have an adverse effect on the ability of the Seller or the
Shareholder to perform his obligations under this Agreement, or (iii) which
question or challenge the validity of this Agreement or any action taken or to
be taken by the
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Seller, the Company or the Shareholder pursuant hereto. Neither the Company nor,
to the extent relating to or affecting the Company, the Shares or the Option,
the Seller or the Shareholder, is subject to any judgment, order or decree, or
to any governmental restriction not applicable generally to companies engaged in
the same business as the Company.
Section 2.10. Finders
Neither the Seller, the Company nor the Shareholder, nor any of their
respective affiliates, has paid or become obligated to pay any fee or commission
to any broker, finder, intermediary or any other Person for or on account of the
transactions provided for in this Agreement.
Section 2.11. No Misrepresentation or Omission
No representation or warranty by the Seller in this Agreement or in any
certificate or other document furnished or to be furnished to the Purchaser by
the Seller in connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. To the knowledge of the Seller and the Company, there is no fact
that the Seller has not disclosed in writing to the Purchaser that materially
adversely affects the Option or the assets, liabilities, business, financial
condition, results of operations or prospects of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND THE SHAREHOLDER
The Seller and the Shareholder, jointly and severally, hereby represent and
warrant to the Purchaser as follows, and the Seller and the Shareholder
acknowledge and confirm that the Purchaser is relying upon such representations
and warranties notwithstanding any investigation made by Purchaser or on its
behalf:
Section 3.01. Ownership of Shares, etc.
All of the Shares are held beneficially and of record by the Shareholder on
the date hereof, and the Shareholder has good and valid title to the Shares,
free and clear of any Encumbrances or other rights whatsoever (other than the
Option) of any other Person. Without limiting the generality of the foregoing,
other than the Option there are no authorized, outstanding or existing options
or other rights to acquire the Shares or any proxies, voting trusts or other
agreements or understandings with respect to the voting of the Shares.
Section 3.02. Validity and Terms of Option; Title to Option
(a) The Option Agreement grants to the Seller, and upon the execution and
delivery of this Agreement will grant to the Purchaser, the unrestricted right
to purchase, at any time, all of the outstanding capital stock of the Company
for an aggregate purchase price of $1.00. Without limiting the generality of the
foregoing, all of the terms and conditions of the Option are set forth in the
Option Agreement, a true and correct copy of which is attached as EXHIBIT A
hereto. The Option Agreement is in full force and effect and has not in any
respect been revised or amended.
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(b) The Option Agreement has been duly executed and delivered
by the Shareholder and constitutes the legal, valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its terms.
Section 3.03. Authorization, Execution and Binding Effect
This Agreement has been duly executed and delivered by the Shareholder and
constitutes the legal, valid and binding agreement of the Shareholder,
enforceable against the Shareholder in accordance with its terms.
Section 3.04. Consents and Approvals
Neither the execution and delivery by the Shareholder of this Agreement,
nor the consummation by the Shareholder of the transactions contemplated hereby,
nor compliance by the Shareholder with any of the provisions hereof will (i)
result in a violation of any order, writ, injunction, decree, judgment or ruling
of any court or governmental authority, (ii) result in a violation of or default
under any law, rule or regulation applicable to the Shareholder, (iii) result in
the material breach of or otherwise materially affect any of the terms,
conditions, or provisions of, any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, contract, agreement, or other instrument or
commitment or obligation of the Shareholder, or (v) require any consent,
approval, or authorization of, or notice to, or declaration, filing, or
registration with, any governmental or regulatory authority or any other Person.
Section 3.05. Legal Proceedings
There are no claims, actions, suits, arbitrations, inquiries,
investigations, or proceedings pending or, to the best knowledge of the
Shareholder, threatened or imminent, (i) against or relating to the Shareholder
to the extent that any such claim, action, suit, arbitration, inquiry,
investigation, or proceeding (individually or together) could have an adverse
effect on the ability of the Shareholder to perform his obligations under this
Agreement, or (ii) which question or challenge the validity of this Agreement or
any action taken or to be taken by the Shareholder pursuant hereto.
Section 3.06. Knowledge as to Seller's and Company's Representations
The Shareholder neither knows nor has any reason to believe that any of the
representations and warranties made by the Seller or the Company in this
Agreement is not true and correct.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows and
acknowledges and confirms that the Seller is relying upon such representations
and warranties notwithstanding any investigation made by the Seller or on his
behalf:
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Section 4.01. Authorization, Execution and Binding Effect
Purchaser has full corporate power and authority to execute and deliver
this Agreement and the other agreements contemplated hereby to which the
Purchaser is a party and to consummate the transactions contemplated hereby and
thereby. The Board of Directors of Purchaser has duly approved and authorized
the execution and delivery of this Agreement and the other agreements
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby, and no other corporate proceedings on the part of Purchaser are
necessary to approve and authorize the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Purchaser and constitutes the legal, valid
and binding agreement of Purchaser, enforceable against Purchaser in accordance
with its terms.
Section 4.02. Investment Intent
Purchaser is acquiring the Option for its own account, for investment
purposes only, and not with a view to the distribution, resale, transfer or
other disposition thereof and recognizes that the Option has not been registered
under any federal or state securities laws; and the Purchaser will not sell,
transfer, pledge or hypothecate the Option in violation of applicable securities
laws. The Purchaser is an "accredited investor" (as that term is defined in Rule
501 promulgated under the Securities Act of 1933, as amended) by virtue of the
Purchaser being a corporation, not formed for the specific purpose of acquiring
the Option, with total assets in excess of $5,000,000.
ARTICLE V
MISCELLANEOUS
Section 5.01. Survival of Representations and Warranties; Indemnification;
Limitation on Damages.
(a) All representations and warranties, covenants, agreements, and other
undertakings of the parties contained in this Agreement shall survive the
closing of the transactions contemplated hereby and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any party
hereto for a period of three (3) years following the Closing Date; provided,
however, that (i) all representations and warranties which relate to taxes
(including without limitation the representations and warranties set forth in
Sections 2.06 (other than paragraphs (a) and (c) of such Section to the extent
such paragraphs (a) and (c) relate to laws, regulations, decrees, orders
permits, licenses and consents that do not directly or indirectly relate to
taxes) shall survive until the expiration of all applicable statutes of
limitation and any extensions thereof, and (ii) the representations and
warranties contained in Article III hereof shall not, to the extent made by the
Shareholder (but not to the extent made by the Seller, with respect to whom this
clause (ii) shall not apply) survive the Closing; and provided further, that the
expiration of any representation or warranty shall not affect any claim of a
breach of such representation or warranty made prior to the date of such
expiration.
(b) The Seller and the Company jointly and severally agree to indemnify the
Purchaser, its affiliates and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties") and hold them
harmless from any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses) suffered or incurred by any such Purchaser
Indemnified Party to the extent arising from any breach of any representation,
warranty or covenant of the Seller or the Company contained in this Agreement.
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(c) No party hereto shall be entitled to claim as damages for breaches of
representations and warranties hereunder, against any other party hereto, an
aggregate amount in excess of $600,000.00; provided, however, that nothing
herein shall be, or shall be deemed to be, an assumption by the Purchaser of, or
an agreement on the part of the Purchaser to be liable or responsible for, any
liabilities or obligations of any other party hereto, and the Seller hereby
expressly agrees that he shall indemnify, defend, and hold harmless the
Purchaser and the Purchaser's affiliates (which indemnity shall not be subject
to the limitations as to amount set forth in the first clause of this paragraph
(c)) from and against any and all losses, liabilities, damages, obligations,
payments, costs, and expenses arising out of, or directly or indirectly due to,
any liability or obligation of the Seller, the Company or the Shareholder;
provided further, that for purposes of this Section 5.01(c) the term
"affiliates" shall not with respect to the Purchaser include the Company (and
the Seller shall not be hereby required to indemnify the Company), whether or
not the Purchaser exercises the Option.
Section 5.02. Discontinuance of Business; Waiver of Purchase Rights
(a) The Company covenants and agrees that after the date hereof the Company
shall cease all of its current business operations relating directly or
indirectly to the wire and cable product manufacturing, distributing or
assembling businesses, and after the date hereof the Company shall not engage
directly or indirectly in the wire and cable product manufacturing, distributing
or assembling businesses anywhere in the United States. Notwithstanding the
foregoing, the Company may use reasonable efforts to collect accounts receivable
owing to the Company.
(b) The Company covenants and agrees that, for a period of three (3) years
from and after the date hereof, or for such longer period as the Option remains
outstanding, the Company shall not offer to sell or sell, issue or grant to any
Person, other than the Purchaser, any securities of the Company, any options or
other rights to purchase securities of the Company or all or any substantial
portion of the assets of the Company.
(c) The Shareholder covenants and agrees that for so long as the Option
remains outstanding, he shall not offer to sell or sell, issue or grant to any
Person, other than the Purchaser, any securities of the Company or any options
or other rights to purchase securities of the Company, and that he shall not as
the sole shareholder of the Company consent to the sale by the Company of any
securities of the Company, any options or other rights to purchase securities of
the Company or all or any substantial portion of the assets of the Company.
(d) Each of the Company and the Shareholder hereby irrevocably waives any
and all rights to purchase or repurchase shares of the Company's capital stock,
whether such rights arise under or pursuant to the Company's Articles of
Organization, By-Laws or otherwise, and each of the Company and the Shareholder
hereby covenants not to assert any such right to purchase or repurchase such
capital stock; the foregoing waiver and covenant to apply with respect to any
and all transfers of the Company's capital stock, including without limitation
any transfer of the Shares upon exercise of the Option by the Purchaser or any
subsequent holder thereof.
Section 5.03. Headings; Grammatical Usage
The descriptive headings of the several Articles and Sections of this
Agreement, and the Table of Contents, are inserted for convenience only and do
not constitute a part of this Agreement. In construing this Agreement, feminine
or neuter pronouns shall be substituted for those masculine in form and vice
versa, and plural terms shall be substituted for singular terms and vice versa,
in any place in which the context so requires.
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Section 5.04. Notices
Any notices or other communications required or permitted hereunder shall
be given in writing and shall be sufficient if delivered personally or sent by
certified or registered mail, postage prepaid, addressed as follows:
If to the Seller, the Company or the Shareholder, to:
Xxxxx X. Xxxxxxxxxx
c/o Connectivity Products Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
If to the Purchaser, to: c/o Tigera Group, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to: Zimet, Haines, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
or to such other address as shall be furnished in writing by such party, and any
such notice or communication shall be effective and be deemed to have been given
as of the date so mailed; provided that any notice or communications changing
any of the addresses set forth above shall be effective and deemed given only
upon its receipt.
Section 5.05. Assignment; Third Parties
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, but except as expressly herein provided, neither this
Agreement nor any of the rights, interest, or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties. Neither this Agreement nor any other agreement contemplated
hereby shall be deemed to confer upon any Person not a party hereto or thereto
any rights or remedies.
Section 5.06. Expenses
Each party hereto shall bear all of the fees and expenses incurred by such
party in connection with this Agreement and the transactions contemplated
hereby.
Section 5.07. Complete Agreement
This Agreement contains the entire understanding of the parties with
respect to the transactions contemplated hereby and supersedes all prior
arrangements or understandings with respect thereto. There are no restrictions,
agreements, promises, warranties, covenants, or undertakings other than those
expressly set forth herein or therein.
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Section 5.08. Amendments and Waivers
This Agreement may be amended or modified, and the terms hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof. No course of dealing on the part of any party hereto, its agents
or employees, nor any failure or delay on their part with respect to the
exercise of any right, power or privilege given or granted hereunder shall
operate as a waiver thereof as to any future defaults, nor shall any single or
partial exercise by a party hereto of any right, power or privilege granted or
contained herein preclude such party from later or further exercise of any
right, power or privilege as to any future defaults.
Section 5.09. Counterparts
This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same Agreement and each of which shall be deemed
an original.
Section 5.10. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HERETO HEREBY AGREES THAT ANY
SUIT, ACTION OR PROCEEDING FOR THE ENFORCEMENT OF THIS AGREEMENT SHALL BE
BROUGHT ONLY IN THE STATE COURTS OF OR FEDERAL COURTS SITTING IN THE CITY AND
STATE OF NEW YORK. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE JURISDICTION OF
SUCH COURTS AND TO SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
BEING MADE UPON SUCH PARTY BY REGISTERED OR CERTIFIED MAIL AT THE ADDRESS
SPECIFIED IN SECTION 5.04 HEREOF. EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
OR ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT COURT.
Section 5.11. Action by Purchaser
Any reference in this Agreement, or in any of the agreements being or to be
entered into by the Purchaser in connection herewith, to action to be taken by
the Purchaser or to the Purchaser's consent, agreement or election, shall mean
and refer to such action, consent, agreement or election that has been
authorized by the board of directors of the Purchaser or by a committee of such
board to which such authority has been delegated.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Stock
Option Purchase Agreement, individually or by its duly authorized officers (as
the case may be), as of the date first above written.
CONNECTIVITY PRODUCTS SIGNAL SALES CORP.
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx XxXxxxxxx
---------------------------- ----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx XxXxxxxxx
Title: Chairman of the Board Title: President
/s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxxx XxXxxxxxx
-------------------------------- --------------------------
Xxxxx X. Xxxxxxxxxx, Xxxxx XxXxxxxxx,
individually, individually,
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