Exhibit 10.7
AMENDED AND RESTATED
STOCK BUY BACK AGREEMENT
This AMENDED AND RESTATED STOCK BUY BACK Agreement (this
"AGREEMENT") is made and entered into as of September 30, 2001 by and among
Technical Consumer Products, Inc., an Ohio corporation (the "COMPANY"),
Practical Innovations, Inc., a Delaware corporation ("PRACTICAL"), and Xxxxxxx
Xxxxx, an individual resident of Illinois ("XXXXX"), and amends and restates
that certain stock buy back agreement, dated as of April 1, 2001 (the "ORIGINAL
STOCK BUY BACK AGREEMENT") by and between Xxxxx and the Company.
RECITALS
X. Xxxxx is the President of Practical.
B. The Company, Practical and Xxxxx are parties to a license
agreement, dated as of March 1, 2000 (the "2000 LICENSE AGREEMENT"), pursuant to
which Practical granted the Company both an exclusive and a non-exclusive
license to use certain of Practical's technology in exchange for, among other
things, the issuance to Xxxxx of ten (10) fully paid and non-assessable shares
of the Company's common shares, without par value per share (the "COMMON
SHARES"), which represented five percent of the Company's then outstanding
Common Shares.
C. On May 23, 2001, the Company, Practical and Xxxxx entered
into a new license agreement (the "2001 LICENSE AGREEMENT"), which incorporated
the terms of the 2000 License Agreement and a license agreement dated June 18,
1996 by and among the Company, Practical and Xxxxx, as amended on November 13,
1998 (the "1996 LICENSE AGREEMENT"), pursuant to which the Company's exclusive
license under the 2000 License Agreement was converted to a non-exclusive
license.
D. Simultaneously with the execution of this Agreement, the
Company, Practical and Xxxxx amended and restated the 2001 License Agreement to,
among other things, increase certain payments due Practical (the "AMENDED AND
RESTATED LICENSE AGREEMENT," together with the 2001 License Agreement, the 2000
License Agreement, the 1996 License Agreement, and any other license agreements
between the Company and Practical and/or Xxxxx, the "LICENSE AGREEMENTS").
E. In connection with the 2001 License Agreement, Xxxxx and
the Company entered into the Original Stock Buy Back Agreement, pursuant to
which Xxxxx agreed to sell, and the Company agreed to purchase, Xxxxx'x ten (10)
Common Shares for $500.00 on September 30, 2001.
F. The Company and Xxxxx desire that the terms of the Original
Stock Buy Back Agreement be amended and restated by this Agreement.
X. Xxxxx desires to sell, and the Company desires to purchase,
the ten (10) Common Shares owned by Xxxxx (the "PURCHASED SHARES"), which
represent all of the Common Shares owned by Xxxxx.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1: SALE AND PURCHASE OF THE PURCHASED SHARES
1.1 SALE AND PURCHASE. Subject to the terms and conditions set
forth herein, concurrently with the execution of this Agreement, Xxxxx will sell
to the Company, and the Company will purchase from Xxxxx, all of the Purchased
Shares, free and clear of any mortgage, pledge, hypothecation, rights of others,
claim, security interest, encumbrance, title defect, title retention agreement,
voting trust agreement, interest, option, lien, charge or similar restrictions
or limitations, including, without limitation, any restriction on the right to
vote, sell or otherwise dispose of the Purchased Shares (collectively, "LIENS"),
for $500.00 and other good and valuable consideration, including the conversion
of the exclusive license pursuant to the terms of the 2001 License Agreement
into a non-exclusive license.
1.2 DELIVERIES. Concurrently with the execution of this
Agreement, Xxxxx will deliver to the Company (a) a share certificate
representing Xxxxx'x ten (10) Common Shares, with a duly executed stock power
attached in proper form for transfer of the Purchased Shares to the Company, and
(b) any other documents that are necessary to transfer to the Company good and
valid title to the Purchased Shares, free and clear of Liens, and the Company
will pay Xxxxx $500.00 in cash.
ARTICLE 2: REPRESENTATIONS AND
WARRANTIES OF PRACTICAL AND XXXXX
Practical and Xxxxx represent and warrant to the Company as
follows:
2.1 VALIDITY AND ENFORCEABILITY. Each of Practical and Xxxxx
has the capacity or the requisite power and authority, as the case may be, to
execute, deliver and perform such party's obligations under this Agreement. This
Agreement has been duly executed and delivered by each of Practical and Xxxxx
and, assuming due authorization, execution and delivery by the Company,
represents the legal, valid and binding obligation of each of Practical and
Xxxxx, enforceable against each such party in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance and other similar laws and principles of equity affecting
creditors' rights and remedies generally.
2.2 TITLE. Xxxxx has good and marketable title to the
Purchased Shares, free and clear of all Liens. Upon the consummation of the
transactions contemplated by this Agreement, the Company will acquire good and
valid title to the Purchased Shares, free and clear of all Liens.
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2.3 NO CONFLICT. Xxxxx represents that the execution and
delivery by him of this Agreement and the performance by him of his obligations
hereunder will not violate (i) any provision of any applicable law, or (ii) any
provision of any indenture, agreement or other instrument to which he or any of
his properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien or other encumbrance of any nature whatsoever upon any of
his properties or assets. Practical represents that the execution and delivery
by it of this Agreement and the performance by it of its obligations hereunder
have been duly authorized by all requisite corporate action and will not violate
(i) any provision of any law applicable to it, (ii) any of its constituent
documents, or (iii) any provision of any indenture, agreement or other
instrument to which it or any of its subsidiaries or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, or result in the creation or imposition of any lien or
other encumbrance of any nature whatsoever upon any of its properties or assets.
2.4 INVESTMENT REPRESENTATIONS. Xxxxx is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D of the Securities
Act of 1933, as amended. Xxxxx represents that: (i) he has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Common Shares; (ii) he has received all
the information he has requested from the Company and considers necessary or
appropriate for deciding whether to sell the Purchased Shares, including,
without limitation, the audited financial statements of the Company for fiscal
1999 and 2000 prepared by Xxxxx Xxxxxxxx, LLP; and (iii) he has had the
opportunity to discuss the Company's business, management and financial affairs
with its management. Xxxxx acknowledges that the Company is contemplating
conducting an initial public offering of its Common Shares, is preparing and
anticipates filing a registration statement with the Securities and Exchange
Commission ("SEC") in connection with such public offering, and that if such
public offering is completed, the Company may sell its shares in the public
offering at a price that is higher than the purchase price for the Purchased
Shares.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Practical and
Xxxxx as follows:
3.1 VALIDITY AND ENFORCEABILITY. The Company has the requisite
power and authority to deliver and perform its obligations under this Agreement.
This Agreement has been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery by each of Practical and Xxxxx,
represents the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and other similar laws and principles of equity affecting creditors'
rights and remedies generally.
3.2 NO CONFLICT. The Company represents that the Company's
purchase of the Purchased Shares has been approved by the Company's board of
directors and shareholders and the execution and delivery by it of this
Agreement and the performance by it of its obligations hereunder have been duly
authorized by all other requisite corporate action and will not violate
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(i) any provision of any law applicable to it, (ii) any of its constituent
documents, or (iii) any provision of any indenture, agreement or other
instrument to which it or any of its subsidiaries or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, or result in the creation or imposition of any lien or
other encumbrance of any nature whatsoever upon any of its properties or assets.
ARTICLE 4: ADDITIONAL AGREEMENTS
4.1 RELEASE BY PRACTICAL AND XXXXX. Except as otherwise set
forth in this Agreement, each of Practical and Xxxxx hereby fully, finally and
forever releases, discharges, quit claims and covenants not to xxx, and
otherwise agrees not to enforce any claim, cause of action, right, title or
interest of any kind and every description against the Company and its officers,
directors, employees, shareholders, agents, representatives, attorneys,
accountants, affiliates, successors and assigns, of, from and with respect to
any and all claims, demands, claims for relief, actions, causes of action,
suits, arbitrations, demands, proceedings, debts, obligations, liabilities,
damages, losses, costs, attorneys' fees, and expenses of any kind, character or
nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or
contingent, arising out of, or otherwise in connection with the sale by Xxxxx of
the Purchased Shares to the Company, or otherwise arising under the Original
Stock Buy Back Agreement.
4.2 RELEASE BY THE COMPANY. Except as otherwise set forth in
this Agreement, the Company hereby fully, finally and forever releases,
discharges, quit claims and covenants not to xxx, and otherwise agrees not to
enforce any claim, cause of action, right, title or interest of any kind and
every description against Xxxxx or Practical and Practical's officers,
directors, employees, shareholders, agents, representatives, attorneys,
accountants, affiliates, successors and assigns, of, from and with respect to
any and all claims, demands, claims for relief, actions, causes of action,
suits, arbitrations, demands, proceedings, debts, obligations, liabilities,
damages, losses, costs, attorneys' fees, and expenses of any kind, character or
nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or
contingent, arising out of, or otherwise in connection with the sale by Xxxxx of
the Purchased Shares to the Company, or otherwise arising under the Original
Stock Buy Back Agreement.
4.3 TAXES.
(a) Xxxxx acknowledges and agrees that the Company and its
shareholders plan to revoke the S corporation status of the Company
immediately prior to the closing of the Company's contemplated public
offering and, as a result, the Company will be a "C corporation" (as
defined in section 1361(a)(2) of the Internal Revenue Code of 1986 (the
"CODE")) on the date on which the S corporation status of the Company
will terminate pursuant to section 1362(d) of the Code (the
"TERMINATION DATE").
(b) Xxxxx hereby consents to and upon the Company's
request will agree to the revocation by the Company of its S
corporation election under section 1362(a) of the Code and the election
to close the books upon S corporation termination under section
1362(e)(3) of the Code.
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(c) Xxxxx hereby acknowledges and agrees that following
the purchase of the Purchased Shares contemplated hereby, the Company
may make distributions to its shareholders of record, including,
without limitation, distributions of the Company's undistributed S
corporation taxable income and/or retained earnings. Following the
repurchase of the Purchased Shares and before expiration of one year
following the revocation by the Company of its S corporation status,
Xxxxx will be entitled to a payment equal to such share of S
corporation distributions made by the Company solely to its
shareholders who were shareholders of record while the Company was an S
corporation, that is proportionate to his ownership of the Company and
as it relates solely to periods during which he was a shareholder of
record of the Company. Xxxxx agrees to enter into such tax
indemnification agreements with the Company that the Company and its
shareholders enter into in connection with the revocation of the
Company's S corporation status as contemplated by this Section 4.3.
4.4 GENERAL INDEMNIFICATION OBLIGATIONS. Xxxxx will indemnify
and hold harmless the Company and its officers, directors, employees, agents,
representatives, successors and assigns from and against any and all losses,
liabilities, claims, damages, penalties, fines, judgments, awards, settlements,
taxes, costs, fees, expenses (including reasonable attorneys' fees) and
disbursements (collectively "LOSSES") actually sustained by any of such persons
based upon, arising out of or otherwise in respect of any inaccuracies in any
representation or warranty, or any breach of covenant or agreement, of Practical
or Xxxxx contained in this Agreement. The Company will indemnify and hold
harmless Xxxxx from and against any and all Losses actually sustained by Xxxxx
based upon, arising out of or otherwise in respect of any inaccuracies in any
representation or warranty, or any breach of any covenant or agreement, of the
Company contained in this Agreement.
ARTICLE 5: MISCELLANEOUS
5.1 INTEGRATION, MODIFICATION AND WAIVER. This Agreement
amends and restates the Original Stock Buy Back Agreement and contains the
entire understanding of the parties with respect to the subject matter hereof,
and supersedes and replaces the Original Stock Buy Back Agreement and any other
prior agreements, understandings or promises relating to the subject matter
hereof. No supplement, modification or amendment of this Agreement will be
binding unless executed in writing by the Company, Practical and Xxxxx. No
waiver of any of the provisions of this Agreement will be deemed to be or will
constitute a continuing waiver. No waiver will be binding unless executed in
writing by the party making the waiver.
5.2 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement will be construed as
if drafted jointly by the parties and no presumption or burden of proof will
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
5.3 SEVERABILITY. Neither the Company, Xxxxx nor Practical
will contest the validity of this Agreement. If any provision of this Agreement
or the application of any provision hereof to any party or circumstance will, to
any extent, be adjudged invalid or unenforceable, the application of the
remainder of such provision to such party or circumstance,
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the application of such provision to other parties or circumstances, and the
application of the remainder of this Agreement will not be affected thereby.
5.4 NO ASSIGNMENT. The rights and obligations of the parties
hereunder may not be assigned without the prior written consent of the other
parties hereto. Notwithstanding the previous sentence, the Company may, without
the prior written consent of Practical or Xxxxx, assign its rights under this
Agreement to any assignee of or successor to substantially all of the business
or the assets of the Company or any direct or indirect subsidiary thereof.
5.5 THIRD PARTIES. Except with respect to the rights under
Section 4.4 of this Agreement, nothing expressed or implied in this Agreement is
intended, or is to be construed, to confer upon or give any person other than
the parties hereto any rights or remedies under or by reason of this Agreement.
5.6 FURTHER INSTRUMENTS AND ACTIONS. The parties will execute
such further instruments and take such further action as may reasonably be
necessary to carry out the intent of this Agreement. Each party hereto will
cooperate affirmatively with all other parties hereto, to the extent reasonably
requested by such parties, to enforce rights and obligations herein provided.
Xxxxx will vote his Common Shares and, if necessary, execute such written
consents of the Company's shareholders, necessary to authorize the Company to
purchase the Purchased Shares. The Company will notify Xxxxx about any S
corporation distributions stipulated in Section 4.3 of this Agreement and the
Company will transfer to Xxxxx all proceeds due as a result of such
distributions, as directed and instructed by Xxxxx.
5.7 NOTICES. All notices and other communications required or
permitted hereunder will be in writing and will be deemed to have been duly
given when delivered in person or five business days after being sent by
registered or certified mail, return receipt requested, postage prepaid or when
dispatched by electronic facsimile transfer (if confirmed in writing by mail
simultaneously dispatched) or one business day after having been dispatched by a
nationally recognized overnight courier service, to the appropriate party at the
address or facsimile number specified below:
If to Practical or Xxxxx:
Practical Innovations, Inc.
000 Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
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If to the Company:
Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxx Yan
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Any party hereto may change its address or facsimile number
for the purposes of this Section 5.7 by giving notice as provided herein.
5.8 GOVERNING LAW. This Agreement is made under and will be
construed and interpreted in accordance with and governed by the internal laws
of the State of Illinois.
5.9 HEADINGS. The headings contained in this Agreement are
included for purposes of convenience only, and will not affect the meaning or
interpretation of this Agreement.
5.10 FACSIMILE SIGNATURES. This Agreement may be executed and
delivered by facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had been delivered
to the other party.
5.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
TECHNICAL CONSUMER PRODUCTS, INC.
By: /s/ Xxxxx Xxx
-----------------------------------------
Xxxxx Xxx
President and Chief Executive Officer
PRACTICAL INNOVATIONS, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
President
/s/ Xxxxxxx Xxxxx
-------------------------------------------
XXXXXXX XXXXX, in his individual capacity
