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EXHIBIT 10.35
REPURCHASE AGREEMENT
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This Repurchase Agreement, effective as of [ ] _____, 1996, is by and
among XXXXXX MICRO INC., a Delaware corporation ("Ingram"), ___________________
("Stockholder") and NATIONSBANK OF TENNESSEE, N.A. ("Bank");
W I T N E S S E T H:
WHEREAS, Stockholder owns certain shares of the Class __ common stock
of Ingram ("the "Common Stock") as set forth on Exhibit A attached hereto
(collectively, the "Shares") which he acquired through one or more stock
purchase agreements (collectively, the "Stock Purchase Agreements") with Ingram;
WHEREAS, Stockholder desires to pledge the Shares to Bank as collateral
for repayment of a promissory note (the "Note") which evidences a loan from
Bank to Stockholder;
WHEREAS, the parties hereto desire to enter into this Agreement in
order to set forth the terms and conditions under which Ingram will consent to
Stockholder's pledge of the Shares and be required to purchase the Shares or
the Note;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Ingram hereby consents to Stockholder's pledge of the Shares to
Bank solely as security for payment of the Note, and any and all extensions,
renewals, modifications and increases thereof, pursuant to a Stock Pledge
Agreement of even date herewith which shall be in form acceptable to Ingram and
which may not be modified or amended without the consent of Ingram. Stockholder
and Bank each agree that the Shares may be sold pursuant to such pledge only in
conformity with the provisions of this Agreement.
2. In the event that Bank elects to exercise its right to
foreclose upon and dispose of the Shares in order to satisfy Stockholder's
obligations to Bank under the Note, or any extension, renewal or modification
thereof, Stockholder or Bank shall promptly notify Ingram thereof.
3.(a) Upon receipt of a notice delivered pursuant to Section 2,
provided that Stockholder would have the right under the Stock Purchase
Agreements to require Ingram to repurchase the Shares, but subject to the
exceptions hereinafter set forth, Bank shall be required to sell to Xxxxxx, and
Xxxxxx shall be required to purchase from Bank, the Shares at the price
calculated in accordance with the formula set forth in the Stock Purchase
Agreements.
(b) At Xxxxxx'x option, upon receipt of a notice pursuant to
Section 2 hereof, Ingram may elect, in lieu of purchasing the Shares, to
purchase the Note and the rights of Bank in the documents referred to in the
Note (the "Loan Documents") by payment to Bank of the outstanding principal
and all accrued interest and late charges on the Note through the date of
purchase.
(c) In the event that (i) the purchase price for the Shares would
be less than the outstanding principal and all accrued interest and late
charges on the Note, (ii) Stockholder would not have the right under the Stock
Purchase Agreement to require Ingram to repurchase the Shares and Ingram does
not otherwise elect to do so, of (iii) Stockholder is not a resident of the
United States of America, then, provided Bank has not
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released its pledge on any of the Shares initially pledged as collateral for
repayment of the Note except in conformance with the provisions of that certain
Addendum to Promissory Note and to Pledge Agreement between Stockholder and
Bank of even date herewith, Bank may elect, at its option, to require Ingram to
purchase the Note and the rights of Bank in the Loan Documents at a purchase
price equal to the outstanding principal and all accrued interest and late
charges on the Note through the date of purchase, provided that the outstanding
principal included therein shall not exceed $7.00 per Share.
(d) Any purchase pursuant to paragraphs (a), (b) or (c) above shall
take place on a date (the "Closing Date") specified in writing by Ingram to
Stockholder and Bank, which shall be not less than 10 nor more than 20 days
from the date Ingram receives the notice pursuant to Section 2 hereof. The
purchase price for the Shares or the Note and Loan Documents shall be payable
by cashier's check, wire transfer or other readily available funds on the
Closing Date. Concurrently with such payment, Bank shall deliver the
certificates representing the Shares, duly endorsed for transfer, or, as the
case may be, the Note and the Loan Documents, assigned without recourse, to
Ingram.
(e) Notwithstanding any other provision in this Agreement, except in
accordance with the provisions of Section 3(c)(iii) hereof, Ingram shall not be
required to purchase either the Shares or the Note and the Loan Documents at
any time that either (i) the Shares are included in an effective registration
statement filed with the United States Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), or
(ii) the Shares are eligible for sale pursuant to Rule 144 under the Securities
Act or any successor rule which would permit sales of the Shares in the public
market without registration.
(f) Stockholder stipulates and agrees that any disposition of the
Shares by Bank in accordance with this Agreement will be a "commercially
reasonable" disposition within the meaning of T.C.A. Section 47-9-504.
4. In the event that Stockholder satisfies the obligations to Bank
which are secured by the Shares or Bank otherwise elects to rescind its
election to foreclose upon and dispose of the Shares at any time prior to the
closing of a purchase by Ingram pursuant to Section 3 hereof, Ingram shall not
be either obligated or permitted to complete such purchase unless otherwise
permitted by the Stock Purchase Agreements; provided, however, that, upon a
subsequent election by Bank to exercise its rights to foreclose upon and
dispose of the Shares in order to satisfy Stockholder's obligations to Bank
under the Note, or any extension, renewal or modification thereof, the rights
and obligations of the parties hereto again shall be subject to the provisions
of Sections 2 and 3 hereof.
5. The parties hereto acknowledge that, in the event Ingram
purchases the Shares pursuant to Section 3(a) hereof, Ingram shall be liable to
pay only the purchase price for the Shares as set forth in such paragraph and
Bank shall look solely to Stockholder for the satisfaction of debt to the
extent that such debt exceeds the purchase price for the Shares. To the extent
that the purchase price exceeds such debt, the difference shall be payable
solely to Stockholder. In the event that Ingram defaults in its obligations
under Section 3 of this Agreement, then Bank shall have all rights and remedies
otherwise available to it, legal or equitable, to enforce this Agreement
against Ingram, including one or more actions for specific performance or
damages or both, the right to foreclose on the Shares, purchase the Shares
itself or sell the Shares to a third party in mitigation of its damages.
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6. Nothing in this Agreement shall prevent Ingram from exercising
its rights under the Stock Purchase Agreements to purchase the Shares at the
times and for the prices set forth therein. In the event of any such exercise by
Ingram at a time when Bank holds a pledge on the Shares as security for payment
of the Note, Ingram shall deliver the purchase price for the Shares to Bank
which shall apply the amount received first to payment of outstanding principal
and accrued interest and late charges on the Note and deliver the balance, if
any, to Stockholder. Concurrently with its receipt of such payment, Bank shall
deliver the certificates representing the Shares, duly endorsed for transfer,
to Ingram. Notwithstanding the foregoing, if the purchase price for the Shares
would be less than the outstanding principal and all accrued interest and late
charges on the Note, Bank may, by notice delivered to Ingram within 10 days of
its receipt of Xxxxxx'x election, require Ingram, in lieu of purchasing the
Shares, to purchase the Note and the rights of Bank in the Loan Documents at a
purchase price calculated in accordance with the provisions of Section 3(c) of
this Agreement. In any such event, the purchase shall be completed in
accordance with the provisions of Section 3(d) hereof and Ingram shall be able
thereafter to complete the purchase of the Shares if it so elects.
7. In order to assist the parties with the administration of this
Agreement, Xxxxxx'x Treasurer shall deliver to Bank, within 45 days of the end
of each calendar quarter, a statement certifying the Fair Market value per
share of Common Stock as determined in accordance with the provisions of the
Stock Purchase Agreements.
8. All notices required or otherwise given hereunder shall be made
in writing and personally delivered or sent by certified mail, return receipt
requested, addressed as follows:
If to Ingram:
Xxxxxx Micro Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: President
with a copy to:
Xxxxxx Micro Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: General Counsel
If to Stockholder:
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If to Bank:
NationsBank of Tennessee, N.A.
Xxx XxxxxxxXxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Vice President
9. This Agreement may not be altered, amended or terminated except
in writing and executed by all parties hereto.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Tennessee.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
XXXXXX MICRO INC.
By:
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Title:
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STOCKHOLDER:
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NATIONSBANK OF TENNESSEE, N.A.
By:
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Title:
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