EXHIBIT 10.9
DATED JANUARY 22, 1998
______________________
XXXXX INDUSTRIES PLC
- and -
PRESTOLITE ELECTRIC INCORPORATED
_____________________________
OPTION AGREEMENT
_____________________________
Eversheds
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx
X0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
DX 13004
Ref: JPL/36
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THIS AGREEMENT is made on 1998
BETWEEN:
(1) XXXXX INDUSTRIES PLC whose registered office is at Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxx Xxxxxxxx, X00 0XX ("the Vendor")
(2) PRESTOLITE ELECTRIC INCORPORATED whose principal place of business is at
0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx
("the Purchaser")
BACKGROUND
(A) This Agreement is supplemental to the Acquisition Agreement.
(B) The Vendor is the registered holder of the Option Shares.
(C) The Purchaser and the Vendor have agreed to enter into this Agreement to
provide for cross Options for the sale and purchase of the Option Shares
upon the terms and in the manner hereinafter appearing.
OPERATIVE PART
1. INTERPRETATION
--------------
1.1 In this Agreement the following expressions shall have the meanings
here ascribed to them unless the context otherwise requires:
"the Acquisition Agreement" a share sale and purchase agreement of
even date herewith made between the
Vendor, the Purchaser and Prestolite
Newco Inc. for, inter alia, the sale and
purchase of 1,393,139 shares of A$1 each
in the capital of Xxxxx Indiel Argentina
S.A.
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"A$" Argentine Pesos
"the Company" Xxxxx Indiel Argentina S.A.
"the Xxxxx Group" LucasVarity plc and any Subsidiary (as
defined in section 736 Companies Act
1985) or Subsidiary Undertaking (as
defined in section 258 Company Act 1985)
of LucasVarity plc for the time being,
excluding the Company and Xxxxx Argentine
Holdings Inc.
"Option" means any option granted pursuant to this
Agreement
"the Option Period" the period from 1 August 1998 to 31
August 1998 (inclusive)
"the Option Price" the sum of A$1,230,000 less any reduction
required in accordance with the
provisions of clause 3.13 of the
Acquisition Agreement
"the Option Shares" 6,346,524 shares of A$1 each in the
capital of the Company registered in the
name of or beneficially owned by the
Vendor or its successors in title as such
number of shares may be adjusted from
time to time for changes in the capital
of the Company, including but not limited
to stock
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splits, stock dividends or reverse stock
splits. Option Shares shall also include
any securities, rights or property of any
nature issued by the Company in respect
of said 6,346,524 shares
"the Purchaser's Group" the Purchaser, any subsidiary or holding
company thereof and any subsidiary of
such holding company for the time being
where the terms "subsidiary", "subsidiary
undertaking" and "holding company" shall
have the meanings ascribed to them by
clauses 1.10 and 1.11 of the Acquisition
Agreement
"the Purchaser's Option" the option to purchase the Option
Shares granted to the Purchaser pursuant
to clause 2
"the Vendor's Option" the option to sell the Option Shares to
the Purchaser granted to the Vendors
pursuant to clause 3
1.2 Words and phrases defined in the United Kingdom Companies Act 1985 shall
bear the same meaning when used herein.
1.3 References herein to clauses are, unless expressly stated to the contrary,
references to clauses of this Agreement.
1.4 References to the masculine shall include the feminine and the neuter and
the singular shall include the plural and vice versa
as the context shall admit or require.
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2. TERM OF THE OPTION
------------------
The Vendor and the Purchaser agree that this Agreement, shall apply to the
Option Shares from the date hereof until the earlier of such time as the
purchase of the Option Shares is completed in accordance with provisions of
clause 5 hereof or the end of the Option Period. If the latter date occurs
before the former, then the terms of this Agreement shall forthwith no
longer apply thereto.
3. PURCHASER'S OPTION
------------------
3.1 The Vendor hereby irrevocably grants to the Purchaser the Option to
purchase all (but not some only) of the Option Shares for a
consideration equal to the Option Price.
3.2 The Option granted to the Purchaser pursuant to this clause 3 shall be
exercisable at any time during the Option Period by notice in writing
given to the Vendor by the Purchaser stating that the Purchaser wishes
to exercise its Option in respect of all of the Option Shares in
accordance with and subject to the provisions of clause 6.
4. VENDOR'S OPTION
---------------
4.1 The Purchaser hereby irrevocably grants to the Vendor the Option to
require the Purchaser to buy all (but not some only) of the Option
Shares for a consideration equal to the Option Price.
4.2 The Option granted to the Vendor pursuant to this clause 4 shall be
exercisable at any time during the Option Period by notice in writing
given to the Purchaser by the Vendor stating that the Vendor wishes to
exercise its Option in respect of all of the Option Shares in
accordance with and subject to the provisions of clause 5.
5. SALE AND PURCHASE
-----------------
If notice shall be given by the Purchaser or the Vendor pursuant to clause
3 or clause 4 (as the case may be), then the Vendor will sell, or procure
the sale of, and the
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Purchaser will purchase the Option Shares at the Option Price in accordance
with the provisions of this Agreement.
6. COMPLETION
----------
6.1 If the Purchaser shall give notice to the Vendor or the Vendor shall
give notice to the Purchaser, pursuant to clause 3 or clause 4 (as the
case may be), the Vendor shall within seven days, if and to the extent
that any of the Option Shares are or remain partly paid, pay the
relevant shares up in full, or procure such payment.
6.2 The sale and purchase of the Option Shares shall take place within
fourteen days from the service of such notice referred to in clause
6.1 on such date within this period, and at such time and place, as
agreed by the Vendor and the Purchaser as soon as reasonably
practicable after the service of said notice and upon completion:
6.2.1 the Purchaser will make payment to the Vendor for the
Option Shares by way of telegraphic transfer in United
States dollars to the following account:
Name: Xxxxx Limited
Bank: Barclays Bank plc
Branch: 000 Xxxx Xxxxxx
Xxxxxxxxx-xxxxx-Xxxx
Xxxxxxxxxxxxx
Sort Code: 20-59-23
Account No: 00000000
or to such other account as the Vendor may hereafter
nominate in writing to the Purchaser;
6.2.2 the Vendor will execute and deliver to the Purchaser, or
procure the execution and delivery of, a transfer of the
Option
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Shares to the Purchaser or, as it may direct, to
any member of the Purchaser's Group; and
6.2.3 the Vendor will deliver to the Purchaser or procure the
delivery to the Purchaser of, the share certificate(s) in
respect of all of the Option Shares.
6.3 In the event of the Vendor not complying with the provisions of this
clause 6 the Vendor hereby irrevocably appoints the Purchaser its
attorney in its name and on its behalf to do all such things and
execute all such documents to give effect to its obligations
hereunder.
6.4 The Purchaser shall be deemed to have performed its obligations to pay
the Option Price by payment to the Vendor pursuant to this clause 6
and shall not be further concerned as to the application of any moneys
so paid.
6.5 All payments which are due to the Vendor from the Purchaser hereunder
shall be converted into United States Dollars at the Exchange Rate as
defined in the Acquisition Agreement.
7. WARRANTY
--------
The Vendor hereby warrants to the Purchaser that it is the registered
holder and beneficial owner of all of the Option Shares and that it has the
right power and authority to sell and transfer the Option Shares free from
any claims charges liens encumbrances or equities and this warranty shall
be deemed to be repeated immediately prior to the completion of the
purchase of the Option Shares pursuant to this Agreement by the Vendor
and/or the member of the Xxxxx Group to whom any of the Option Shares have
been transferred in the meantime.
8. RESTRICTION ON TRANSFER
-----------------------
During the subsistence of this Agreement, and except as otherwise provided
herein, the Vendor shall not:
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8.1 sell, pledge or otherwise dispose of any Option Shares or interest
therein other than to another member of the Xxxxx Group or to the
Purchaser;
8.2 deposit the Option Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Option Shares; or
8.3 enter into any contract, option or other arrangement or undertaking
with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of the Option Shares.
9. NOTICES
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9.1 The addresses for service of the parties to this Agreement shall be:
9.1.1 in the case of the Vendor its registered office in the
United Kingdom from time to time and shall be addressed
to:
The Legal Director - Xxxxx Electrical and Electronic
Systems; and
9.1.2 in the case of the Purchaser:
Prestolite Electric Incorporated
0000 Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxxx,
Xxxxxxxx 00000
Xxxxxx Xxxxxx
Attention: Xxx Xxxxxxx
9.2 Any notice will be deemed well served on the party to whom it is
addressed if it be served personally or by courier delivery addressed
to such party at its address for service and service shall be deemed
to be effective upon such personal or courier delivery taking place.
9.3 Any notices or statements to be served pursuant to this Agreement may
be sent by facsimile process:
9.3.1 in the case of notices to the Vendor to the
Legal Director - Xxxxx Electrical and Electronic
Systems (fax: 0000 000 0000)
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or to such other fax number as may be notified to
the Purchaser for the purposes of this clause 9.3, and
9.3.2 in the case of notices to the Purchaser to Xxx Xxxxxxx
(fax: (000) 000-0000) or to such other fax number as may
be notified to the Vendor for the purposes of this clause
9.3.2.
9.4 Any notice or statement so sent by facsimile process shall be deemed
to have been served at the expiration of 2 hours after the time of
despatch if despatched before 3.00 pm (local time at the place of
destination) on any Business Day and in any other case at 10.00 am
(local time at the place of destination) on the Business Day following
the date of despatch provided that it is followed by a hard copy of
the notice or statement served on the recipient in accordance with
clause 9.2. For the purposes of this clause, "Business Day" shall mean
any day (other than Saturday or Sunday) on which banks in the United
Kingdom (for service on the Vendor) or the United States (for service
on the Purchaser) are open for a full range of banking transactions.
10. ASSIGNMENT
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This Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties hereto (such consent
not to be unreasonably withheld or delayed) provided that the Purchaser may
assign its rights, interests and obligations hereunder to any member of the
Purchaser's Group and the Vendor may assign its rights, interests and
obligations hereunder to a member of the Xxxxx Group to whom the Vendor has
transferred any of the Option Shares in accordance with the provisions of
clause 8.1 hereof.
11. ENTIRE AGREEMENT
----------------
This Agreement constitutes the entire agreement between the parties hereto
with respect to the Option and supersedes all prior agreements and
undertakings, both written and oral, between the Vendor and the Purchaser
with respect to such subject matter.
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12. SEVERABILITY
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12.1 If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic and legal substance of the transactions contemplated by
this Agreement is not affected in any manner materially adverse to
any party.
12.2 Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in
a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
13. NO THIRD PARTY BENEFICIARIES
----------------------------
This Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
14. GOVERNING LAW
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Except to the extent that Argentine law is mandatorily applicable to the
rights of the shareholders of the Company, this Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
The Purchaser and the Vendor each hereby irrevocably submits to the non-
exclusive jurisdiction of any New York state or Federal court sitting in
the City of New York, New York County, in any action or proceedings arising
out of or relating to this Agreement, and the Purchaser and the Vendor each
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court or such
Federal court.
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15. PREVAILING AGREEMENT
--------------------
Where the provisions of the documents governing the constitution of the
Company conflict with the provisions of this Agreement the parties hereby
agree that the provisions hereof shall prevail to the intent that they
shall, if necessary in any case, procure the amendment of the said
documents to the extent required to enable the parties to comply with the
provisions of this Agreement.
16. COUNTERPARTS
------------
This Agreement may be executed in one or more counterparts, and by
different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which when taken
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF the parties hereto have entered into this document on the
day and year first before written
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SIGNED by XXXXX XXXX-LEATHER ) /s/ Xxxxx Xxxx-Leather
as duly authorised attorney ) ----------------------
for and on behalf of )
XXXXX INDUSTRIES PLC )
Xxxxx Xxxx-Leather as attorney for
Xxxxx Industries plc
PRESTOLITE ELECTRIC INCORPORATED
By: /s/ P. Xxx Xxxxxxx
------------------
Name: P. Xxx Xxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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