Exhibit 10.3
STOCK PURCHASE AGREEMENT
AGREEMENT made as of the 30th day of September, 1994, by and among Pivot Rules
Inc. ("Pivot"), Leisure Wear Inc. ("Leisure Wear"), Xxxxx X. Xxxxxxxxx Inc.
Profit Sharing Plan, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx
(collectively the "Sellers").
1. At the Closing, Pivot shall purchase (i) 51.99 shares of its common stock
owned by Leisure Wear, (ii) 4.61 shares owned by Xxxxx Xxxxxxxxx, (iii) 7
shares owned by Xxxxx X. Xxxxxxxxx Inc. Profit Sharing Plan and (iv) 1 share
owned by Xxxxx Xxxxxxxxx (collectively, the "Shares") in exchange for $50,000
in cash (payable by check on the date of execution of this Agreement, receipt
of which is hereby acknowledged) plus a promissory note in the form annexed
hereto or Exhibit A (the "Note"), with an aggregate principal balance of
$822,291, payable with interest at the rate of 12% per annum, on the following
schedule:
Principal Payment Total Payment
----------------- -------------
(including interest)
January 1, 1995 $ 260,358 $ 285,500
December 31, 1995 82,753 150,000
December 31, 1996 92,498 150,000
December 31, 1997 103,598 150,000
December 31, 1998 133,530 167,500
December 31, 1999 149,554 167,500
The note shall be payable to Leisure Wear, as agent for the Sellers. Leisure
Wear agrees to allocate all payments made hereunder among the Sellers in
proportion to their share ownership.
2. Installment payments under the Note shall be secured by the pledge in escrow
of the Shares. The Shares shall be released from escrow as payments under the
Note are made, commencing with the January 1, 1995 installment, in proportion
to total scheduled principal payments hereunder (including the $50,000 cash
payment), e.g. upon the payment of the January 1, 1995 installment, 23 shares
shall be released to Pivot. Pivot may at any time substitute collateral of
marketable securities or cash equivalent value to the outstanding principal
balance under the Note at the time of such substitution.
3. Simultaneously with the execution of this agreement, (a) the parties hereto
will enter into an Escrow Agreement, in the form annexed hereto as Exhibit B,
pursuant to which Scoppetta &
Xxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 will serve as escrow agent; (b)
Pivot shall deliver to the Sellers a check for $50,000; and (c) the Sellers
shall deliver to the Escrow Agent 64.6 Shares, free and clear of all liens,
claims or encumbrances, duly endorsed in blank, to be held by the Escrow Agent
pursuant to the terms of this agreement and the Escrow Agreement.
4. The closing under this agreement (the "Closing") shall occur as soon as
practicable following the approval by a majority of the disinterested directors
serving on the Board of Directors of Pivot (i.e. the directors other than Xxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx), and the written approval of the holders of at
least 80% of the outstanding shares of Pivot; provided that Pivot shall have
the right to waive such 80% requirement and close upon the vote of a lesser
percentage if its counsel advises it that such lesser percentage is legally
sufficient. Sellers agree to vote the Shares in favor of the approval of this
agreement and the transaction contemplated hereby. Pivot shall use its best
efforts to close within 20 days of the date hereof and in any event the closing
will occur no later than thirty days from the date hereof. The Closing Date
shall be fixed by Pivot on not less than 3 business days notice to Sellers. In
the event evidence of the foregoing approvals is not delivered to the Sellers
at the Closing or the payment scheduled on January 1, 1995 is not delivered
within 5 business days of its due date, (a) this agreement shall at the option
of Sellers exercised by written notice to Pivot and the Escrow Agent, be null
and void, (b) the Escrow Agent shall return all collateral held by it to the
Sellers and (c) the Sellers shall be entitled as their sole and exclusive
remedy, to keep the $50,000.
5. At the Closing, Pivot shall enter into six-year financial consulting and
non-competition agreements, in the form annexed hereto as Exhibit C, (the
"Consulting Agreement"), with each of Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx,
pursuant to which consulting and non-competition fees of $37,500 shall be paid
to each of them on December 31, 2000 if each has fully complied with the terms
hereof. Such agreements shall provide that each of Xxxxx Xxxxxxxxx and Xxxxxxx
Xxxxxxxxx shall also be entitled to receive $1,000 worth of clothing (at
wholesale value) sold by Pivot in each calendar year from 1995 through 1997 and
that Pivot shall pay any freight charges to ship the items, which shall be
ordered no more than twice each year, to each recipient's home address.
6. The Sellers hereby waive and release, effective on the Closing date, any
claims of any kind against Pivot, its other shareholders, directors and
officers. Sellers jointly and severally represent and warrant as follows: (a)
that they have been advised that (i) Pivot has engaged an investment banker to
pursue a possible sale of the Company; (ii) Pivot is commencing discussions
with a potential acquirer which may result in a cash purchase offer per share
for Pivot which could be a multiple of the purchase price per share offered
herein; (iii) Pivot may enter into transactions with other investors or
acquirers in the future on substantially more favorable terms than offered
herein; and (iv) Pivot has made available to Sellers and each of Leisure Wear's
shareholders all financial data and any other information pertaining to a
financial restructuring, sale or investment in Pivot; (b) Sellers have had an
opportunity to ask any questions and receive any information concerning the
business or prospects of Pivot as it may have requested; (c) Sellers own the
Shares being purchased by Pivot hereunder free and clear of all liens, claims
and encumbrances and no other person has any option or similar right to acquire
any of the Shares; (d) Sellers have received
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all requisite approvals necessary to be obtained by Sellers in order to
consummate the transaction contemplated by this agreement including the
approval of the Board of Directors and shareholders of Leisure Wear; (e) the
consummation by Sellers of the transactions contemplated hereby will not breach
any agreement, judgment, order, law, rule or obligation to which the Sellers
are a party or to which their property is subject.
7. The Consulting Agreement shall contain the agreement of Messrs. Xxxxxxxxx
and Xxxxxxxxx not to directly or indirectly become a shareholder, officer,
director, owner, partner, employee, consultant or beneficial owner of any
equity securities in any manufacturer or marketer of golf clothing for a six
year period.
8. Pivot agrees to indemnify Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx against any
liability incurred by them by reason of a claim made against them in their
capacity as officer and/or director of Pivot, so long as (i) such claim arises
from an authorized action taken by them while serving in such capacity and (ii)
indemnification is available to them for such claim under the New York Business
Corporate Law and the Company's Certificate of Incorporation and by-laws as
currently in effect.
9. Pivot shall not have the option to prepay indebtedness under the Note;
provided that in the event Xxxxxxx Xxxxx shall case to be a full-time employee
of Pivot or a successor or affiliate to Pivot (a "Termination Event"), Sellers
shall have the option to require the prepayment, without penalty, of one half
of the then outstanding principal amount of the Note. Pivot shall provide
notice to Sellers within 10 days of the occurrence of a Termination Event which
notice shall include a copy of the latest set of "reviewed" financial
statements of Pivot. Sellers shall have 10 days from receipt of such notice to
exercise their right to require such prepayment. Upon any such prepayment, a
pro rata share of the collateral shall be returned to Pivot by the Escrow Agent
and the schedule of principal and interest payments set forth above shall be
appropriately adjusted. The prepayment shall be applied to the principal
payments due under the Note in inverse order of maturity.
10. At the Closing, the Sellers shall relinquish all rights as shareholders
under law and under Pivot's Shareholder Agreement dated August 1, 1991, as
amended, including but not limited to the right to designate members of the
Board of Directors. At the Closing, Xxxxxxxxx and Xxxxxxxxx shall resign as
directors and officers of Pivot. As between the parties hereto, this agreement
shall supersede any terms of the Shareholder Agreement regarding the sale of
the Shares.
11. In the event of a prepayment default not cured within 30 days after the due
day of any installment under the Notes, Pivot shall pay a default rate of
interest at the rate of 14% per annum. If payment is not made after an
additional 60 days, the Sellers shall have an option either (i) to provide
notice to the Escrow Agent to return any remaining collateral held by it to the
Sellers in full satisfaction of the remaining amount due under the Note or (ii)
to commence
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appropriate legal action for payment under the Note which shall, in such event,
continue to accrue interest at the default rate until payment is made.
12. The foregoing represents the basic agreement of the parties hereto. The
parties hereto further agree to execute such other instruments and documents as
are necessary to consummate the transaction contemplated hereby.
13. This agreement shall be governed by the laws of the State of New York,
without regard to its conflict if law provisions.
14. Any notices required to be delivered hereunder shall be sent by registered
or certified mail or by hand delivery with receipt acknowledged or by the
Express Mail service offered by the United States Post Office and addressed to
the addressee at his address below:
If to Sellers: c/o Xxxxxxx Xxxxxxxxx
Leisure Wear Inc.
0000 Xxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
with copy to: Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
If to Pivot: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
with copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Shereff, Friedman, Xxxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Such notice shall be deemed to have been received on the date of hand delivery,
next day if by Express Mail or five (5) days after the date of deposit in the
United States mail.
15. Any action, consent or waiver required to be taken by Sellers hereunder
shall be duly evidenced by the signature of Leisure Wear.
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IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date
first above written.
PIVOT RULES INC.
By: /s/ E. Xxxxxxx Xxxxx
-------------------------------
Title: President
LEISURE WEAR INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Title: President
/s/ Xxxxx Xxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxxx Inc. Profit Sharing Plan
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
EXHIBIT A
---------
PROMISSORY NOTE
$822,291.00 New York, New York
September 30, 1994
FOR VALUE RECEIVED, PIVOT RULES INC. (the "MAKER"), a New York
corporation with its principal place of business located at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereby unconditionally promises to pay, in
lawful money of the United States, to LEISURE WEAR INC. ("LEISURE WEAR"), on
behalf of itself and as agent for Xxxxx X. Xxxxxxxxx Inc. Profit Sharing Plan,
Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxx (collectively, the
"Sellers") at 0000 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 or at such other place
as may be designated in writing by LEISURE WEAR, the principal sum of EIGHT
HUNDRED TWENTY-TWO THOUSAND TWO HUNDRED NINETY-ONE U.S. DOLLARS (U.S.
$822,291.00) together with accrued interest thereon on the unpaid principal
amount thereof from time to time outstanding until the said principal sum shall
be fully paid, at a rate of interest per annum equal to twelve percent (12%).
Principal and interest shall be payable in installment as set forth below:
Principal Total
Payment Payment
--------- -------
(including interest)
January 1, 1995 $260,358 $285,500
December 31, 1995 82,753 150,000
December 31, 1996 92,498 150,000
December 31, 1997 103,598 150,000
December 31, 1998 133,530 167,500
December 31, 1999 149,554 167,500
As collateral security for the obligations of the MAKER under this
Note, the MAKER hereby grants to LEISURE WEAR a security interest by pledge in
escrow of 64.60 shares of common stock of the MAKER (the "Shares" or
"Collateral"), pursuant to an escrow agreement under which Scoppetta & Xxxxx,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 will serve as escrow agent (the
"Escrow Agent"), as set forth in the Stock Purchase Agreement dated as of
September 30, 1994, by and among the MAKER and the Sellers (the "Stock Purchase
Agreement"). The Shares shall be released from escrow as provided in the Stock
Purchase Agreement. The MAKER may at any time substitute collateral of
marketable securities or cash of equivalent value to the then outstanding debt
balance.
The MAKER shall not have the right to prepay this Note; provided,
however, that in the event Xxxxxxx Xxxxx shall cease to be a full-time employee
of MAKER or a successor or affiliate of the MAKER (a "Termination Event"), the
Sellers shall have the option to require the prepayment without payment of any
premium or penalty, of one-half of the then outstanding principal amount of the
Note. The MAKER shall provide notice to the Sellers within ten (10) days of the
occurrence of a Termination Event which notice shall include a copy of the
latest set of "reviewed" financial statements of the MAKER. The Sellers shall
have ten (10) days from receipt of the Sellers' notice to exercise their right
to require such prepayment. Upon such prepayment, LEISURE WEAR shall promptly
notify the Escrow Agent and a pro rata share of the Collateral shall be
returned to the MAKER by the Escrow Agent and the schedule of principal and
interest payment set forth above shall be applied to the principal payments due
hereunder in inverse order of maturity.
Notices required to be delivered hereunder shall be sent by registered
or certified mail or by hand delivery with receipt acknowledged or by the
Express Mail service offered by the United States Post Office and addressed to
the parties hereto at the address set forth above. Such notice shall be deemed
to have been received on the date of hand delivery, next day if by Express Mail
or five (5) days after the date of deposit in the United States mail.
If the due date of any payment under this Note would otherwise fall on
a day which is not a Business Day, such date will be extended to the
immediately succeeding Business Day. The term "Business Day" shall mean any day
on which commercial banks in the State of New York are not authorized or
required to close.
In the event of a payment default not cured within thirty (30) days
after the due date of any installment payment under this Note, the MAKER shall
pay a default rate of interest at the rate of fourteen percent (14%) per annum
until such default has been cured. If payment is not made after an additional
sixty (60) days, LEISURE WEAR shall have an option either (i) to provide notice
to the Escrow Agent to return any remaining Collateral held by it to the
Sellers in full satisfaction of any remaining amounts due under the Note or
(ii) to commence appropriate legal action for payment under the Note which
shall, in such event, continue to accrue interest at the default rate until
such payment is made.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflict of laws
principles thereof.
Any reference to "LEISURE WEAR" herein shall include the legal
representatives of LEISURE WEAR; and the term "MAKER" as used herein shall
include the successors and assigns, if any, of the MAKER. LEISURE WEAR shall
not assign this Note without the prior written consent of the MAKER.
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IN WITNESS WHEREOF, this Note has been duly executed by the MAKER as
of the day and year first above written.
PIVOT RULES INC
By:
------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
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EXHIBIT B
ESCROW AGREEMENT
AGREEMENT made this 4th day of October, 1994, by and among Pivot Rules,
Inc., a corporation organized under the laws of the state of New York, having
its principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Pivot"), Leisure Wear Inc., a corporation organized under the laws of
the state of New York, having its principal place of business at c/o Xxxxxxx
Xxxxxxxxx, 0000 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Xxxxx X. Xxxxxxxxx, Inc.
Profit Sharing Plan, having its principal place of business at c/o Xxxxx
Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxx Xxxxxxxxx,
residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxx Xxxxxxxxx,
residing at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Xxxxxxx
Xxxxxxxxx, residing at 0000 Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000, (collectively
referred to herein as the "Sellers"); and Scoppetta & Xxxxx, a New York
partnership, having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, Pivot has agreed to purchase a total of 64.6 shares of common
stock of Pivot Rules, Inc. (the "Shares") from the Sellers on the terms set
forth in the agreement annexed hereto as Exhibit A ("Exhibit A Agreement"); and
WHEREAS, Pivot and the Sellers have agreed to the appointment of Scoppetta
& Xxxxx as Escrow Agent in connection with the transaction described in the
Exhibit A Agreement, and the Escrow Agent is willing to act as such upon the
terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereby agree as follows:
1. Delivery of the Shares to Escrow Agent. Upon the execution of the
Exhibit A Agreement and the payment of the amount of $50,000 by Pivot to the
Sellers, the Sellers shall deliver to the Escrow Agent 64.6 Shares, represented
by Certificates Nos. 21, 22, 25, and 34, which have been duly endorsed in
blank. From time to time, Pivot may instruct Escrow Agent by written notice
accompanied by payment in accordance with the Agreement (Annexed as Exhibit A)
in the amount and at the times provided or permitted thereunder, to release
Shares from Escrow allocable to such payment. Escrow Agent shall not be
required or permitted to release such Shares until the payment shall have been
made to Sellers in good funds in accordance with the terms of the Agreement.
2. Rights. Duties and Responsibilities of Escrow Agent. It is understood
and agreed that the duties of the Escrow Agent are purely ministerial in
nature, and that:
2.1 The Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of any agreement between the Sellers and
Pivot nor shall the Escrow Agent be responsible for the performance of the
Sellers or Pivot of their respective obligations under any agreement or
otherwise.
2.2 The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness, of any notice,
instruction, certificate, signature, instrument or document which is given to
the Escrow Agent pursuant to this Agreement without the necessity of the Escrow
Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be
obligated to make any inquiry as to the authority, capacity, existence
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or identity of any person purporting to give any such notice or instruction or
to execute any such certificate, instrument or document.
2.3 In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Shares which, in its sole determination, are in conflict either with other
instructions received by it or with any provision of this Agreement, it shall
be entitled to hold the Shares, or a portion thereof, pending the resolution of
such uncertainty to the Escrow Agent's sole satisfaction, by final judgment of
a court or courts of competent jurisdiction or otherwise; or the Escrow Agent,
at its sole option, may deposit the Shares with the Clerk of a court of
competent jurisdiction in a proceeding to which all parties in interest are
joined. Upon the deposit by the Escrow Agent of the Shares with the Clerk of
any court, the Escrow Agent shall be relieved of all further obligations and
released from all liability hereunder.
2.4 The Escrow Agent will use its best efforts to cause all actions
required or permitted to be performed by the Escrow Agent hereunder to be
carried out on behalf of the Escrow Agent by Xxxx X. Xxxxx, Esq. or, to the
extent that this is not feasible, by an employee of the Escrow Agent designated
in writing by said Xxxx X. Xxxxx.
2.5 The Escrow Agent shall not be liable for any action taken or
omitted hereunder, nor for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct. The Escrow Agent
shall be entitled to consult with counsel of its own choosing and shall not be
liable for any action taken, suffered or omitted by it in accordance with the
advice of such counsel.
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2.6 Promptly upon receipt thereof by the Escrow Agent, the Escrow
Agent will transmit to Pivot, the Sellers, or to any other person designated by
Pivot or the Sellers, a copy of any notice, statement or other advice with
respect to the status of the Shares, or any transaction with respect thereto.
3. Amendment; Resignation\Replacement of Escrow Agent.
3.1 This Agreement may be altered or amended only with the written
consent of Pivot, the Sellers, and the Escrow Agent.
3.2 The Escrow Agent may resign for any reason upon ten (10) business
days' written notice to the Sellers and Pivot. Should the Escrow Agent resign
as herein provided, its only duty shall be to hold the Shares for a period of
not more than ten (10) business days following the effective date of such
resignation, at which time (a) if a successor escrow agent shall have been
appointed and written notice thereof (including the name and address of such
successor escrow agent) shall have been given to the resigning Escrow Agent by
the Sellers, Pivot and such successor escrow agent, then the resigning Escrow
Agent shall deliver to the successor escrow agent the Shares, less any portion
thereof previously delivered out in accordance with this Agreement; or (b) if
the resigning Escrow Agent shall not have received written notice signed by the
Sellers, Pivot and a successor escrow agent, then the resigning Escrow Agent
shall promptly dispose of the Shares in accordance with Section 2.3 hereof;
whereupon, in either case, the Escrow Agent shall be relieved of all further
obligations and released from all liability under this Agreement.
3.3 Within three (3) business days after receipt by the Escrow Agent
of a notice signed by both Pivot and the Sellers, which notice shall designate
a successor escrow agent
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and shall be signed by such successor escrow agent to signify that such
successor escrow agent is ready, willing and able to assume the duties of
escrow agent under this Agreement, the Escrow Agent shall do all things
necessary to transfer the Shares to such successor escrow agent and to enable
such successor escrow agent to perform all of the duties of escrow agent
hereunder.
4. Representations and Warranties. Pivot hereby represents and warrants
to the Escrow Agent that:
4.1 No party other than the parties hereto have, or shall have, any
lien, claim or security interest in the Shares or any part thereof.
4.2 No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Shares or any part thereof.
5. Fees and Expenses. Pivot agrees to reimburse the Escrow Agent for any
reasonable expenses incurred in connection with this Agreement, including, but
not limited to, reasonable counsel fees.
6. Indemnification and Contribution.
6.1 Pivot and the Sellers (referred to jointly as the "Indemnitors")
agree, jointly and severally, to indemnify the Escrow Agent and its employees
and agents (jointly and severally the "Indemnitees") against, and hold them
harmless of and from, any and all loss, liability, cost, damage and expense,
including without limitation, reasonable counsel fees, which the Indemnitees
may suffer or incur by reason of any action, claim or proceeding brought
against the Indemnitees arising out of or relating in any way to this Agreement
or any transaction to which this Agreement
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relates, unless such action, claim or proceeding is the result of the willful
misconduct of the Indemnitees.
6.2 If the indemnification provided for in this Section 6 is
applicable, but for any reason is held to be unavailable, the Indemnitors shall
pay or reimburse the Indemnitees for the aggregate of any and all losses,
liabilities, costs, damages and expenses, including counsel fees, actually
incurred by the Indemnitees as a result of or in connection with, and any
amount paid in settlement of, any action, claim or proceeding arising out of or
relating in any way to any actions or omissions of the Indemnitors.
6.3 The provisions of this Section 6 shall survive any termination of
this Agreement, whether by release and delivery of the Shares, resignation of
the Escrow Agent or otherwise.
7. Governing Law and Assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment or transfer by any party of its rights
under this Agreement or with respect to the Shares shall be void as against the
Escrow Agent unless:
(a) written notice thereof shall be given to the Escrow Agent; and
(b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
8. Notices. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt
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acknowledged, or by the Express Mail service offered by the United States Post
Office, and addressed to the addressee at his, her or its address above.
9. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
10. Execution in Several Counterparts. This Agreement may be executed in
several counterparts or by separate instruments and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
PIVOT RULES, INC.
By:
--------------------------------
LEISURE WEAR INC.
By:
--------------------------------
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XXXXX X. XXXXXXXXX, INC.
PROFIT SHARING PLAN
By:
--------------------------------
Xxxxx Xxxxxxxxx
-----------------------------------
XXXXX XXXXXXXXX
-----------------------------------
XXXXX XXXXXXXXX
-----------------------------------
XXXXXXX XXXXXXXXX
SCOPPETTA & XXXXX
By:
--------------------------------
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EXHIBIT C
PIVOT RULES INC.
00 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
October ___, 1994
Mr. [Xxxxx Xxxxxxxxx] [Xxxxxxx Xxxxxxxxx]
----------------------------------
----------------------------------
----------------------------------
Dear Mr. [Xxxxxxxxx][Xxxxxxxxx]:
In connection with the Stock Purchase Agreement, dated October ___, 1994,
by and among Pivot Rules Inc., a New York corporation (the "Company"), Leisure
Wear Inc., Xxxxx X. Xxxxxxxxx Inc. Profit Sharing Plan, Xxxxx Xxxxxxxxx,
[Xxxxxxx Xxxxxxxxx and yourself] [Xxxxx Xxxxxxxxx and yourself], you hereby
agree to provide certain financial consulting services to the Company and not
to compete with the Company, on the terms and subject to the conditions set
forth herein.
1. Consulting. You hereby agree to provide such consulting services to
the Company as may be reasonably requested through October ___, 2000;
provided, that such services shall not interfere with your other
business activities or require more than two (2) hours per month.
2. Non-Competition. You agree that until October ___, 2000, you will not
directly or indirectly become a shareholder, officer, director,
owner, partner, employee, consultant or beneficial owner of any
equity securities in any manufacturer or marketer of golf clothing.
3. Confidential Information. You agree to keep confidential any
confidential or proprietary information concerning the Company which
you may now have or which you may receive in the future, except as
may be required by law.
Mr. [Xxxxx Xxxxxxxxx] [Xxxxxxx Xxxxxxxxx]
October __, 1994
Page 2
4. Consideration. As consideration for your providing the consulting
services and agreeing not to compete as described herein, you shall
be entitled to receive (i) a fee equal to Thirty-Seven Thousand Five
Hundred U.S. Dollars (U.S. $37,500.00), payable on December 31, 2000;
provided, you are and have been in full compliance with all the terms
and conditions of this letter agreement and the Stock Purchase
Agreement; and (ii) clothing equal in value to One Thousand U.S.
Dollars (U.S. $1,000.00) (at wholesale value) sold by the Company in
each calendar year from and including 1995 through 1997. The Company
shall pay any freight charges to ship such items, which shall be
ordered no more than twice each year, to be shipped to your home
address.
5. Successors and Assigns. As this letter agreement is personal in
nature, neither party shall have the right to assign any or all of
its rights, duties and obligations hereunder.
6. Governing Law. This letter agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York, without regard to principles of conflicts of law thereof.
This letter agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Very truly yours,
PIVOT RULES INC.
By:
---------------------------------
Name:
Title:
The terms of the foregoing letter agreement are accepted and agreed to this ___
day of October, 1994.
------------------------------------
[Xxxxx Xxxxxxxxx][Xxxxxxx Xxxxxxxxx]
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