EXHIBIT 10.29
STATE OF NORTH CAROLINA
FOURTH MODIFIED REDEMPTION AGREEMENT
COUNTY OF MECKLENBURG
THIS FOURTH MODIFIED REDEMPTION AGREEMENT is dated September 14, 1994, by
and between XXXXXX X. XXXXXXXX (the "Stockholder") and XXXXXXXX INDUSTRIES, INC.
(the "Company").
WITNESSETH:
The parties hereto have previously entered into a Redemption Agreement
dated May 31, 1974, that was mutually terminated by Agreement dated March 6,
1980, reinstated and modified by Modified Agreement dated April 14, 1987 and
thereafter further modified by a Second Modified Redemption Agreement dated
September 30, 1991, and by a Third Modified Redemption Agreement dated July 14,
1993 (all collectively known as the "Redemption Agreement"); and
The parties desire to further modify the Redemption Agreement in certain
respects, mainly to reduce the amount to be set aside for the costs of
transition and management upon the death of the Stockholder, to remove surplus
language, and to restate the Agreement in its entirety, to enhance its
readability;
NOW, THEREFORE, the restated Agreement reads as follows:
WHEREAS, the Stockholder owns a substantial portion of the outstanding
common stock of the Company; and
WHEREAS, the Stockholder desires assurance that if he should pass away his
Estate will have sufficient funds to pay estate and inheritance taxes and
expenses incident to the transfer of his Estate; and
WHEREAS, it is in the interest of the Company and its stockholders that
arrangements be made for redemption of all or a portion of the common stock of
Stockholder in the event of his decease; and
WHEREAS, the Company has secured ordinary life insurance policies on the
life of the Stockholder in the principal sum of $1,150,000, the proceeds of
which are payable to the Company;
It is therefore agreed:
1. Purchase of Securities. Upon the decease of the Stockholder, the
Company, upon written demand made by the legal representatives of the Estate of
the Stockholder at any time within two (2) years after decease, will purchase
all or a portion of the common stock of the Company owned by the Stockholder on
the date of his death (the common stock being hereinafter referred to as the
Securities) in accordance with the terms and conditions hereinafter set forth.
2. Purchase Price. The "purchase price" for each share of common stock
sold hereunder shall be equal to the fair market value per share less a discount
of 5% from said fair market value. Said purchase price shall be determined as of
the date the option granted the legal representatives of the Estate of the
Stockholder is exercised by written notice to the Company under paragraph 1
hereof. For the purpose hereof, the term "fair market value" per share shall
mean the last sale price in the over-the-counter market reported on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") on such
date, or the last sale price reported on the NASDAQ National Market System on
such date, whichever is applicable, or, if no sale of the common stock takes
place on such date, the
average of the closing high bid and low asked price in the over-the-counter
market reported on NASDAQ on such date or the average of such prices reported on
the NASDAQ National Market System on such date, whichever is applicable. If
there is no such last sale price or closing high bid and low asked prices
reported on such date, then the fair market value per share shall be determined
by the Board of Directors in accordance with the regulations promulgated under
Section 2031 of the Internal Revenue Code of 1986, as amended, or by any
appropriate method selected by the Board of Directors. However, notwithstanding
any provision of this agreement to the contrary, in no event shall the total
purchase price to be received by the Estate of the Stockholder exceed the
proceeds of life insurance, including double indemnity in the event of
accidental death, paid to the Company by reason of the Stockholder's death under
the policy or policies carried by the Company on the life of the Stockholder
under paragraph 3 hereof.
3. Insurance. The Company will, from the date of this agreement to the
date of Stockholder's death, except and to the extent otherwise consented to or
agreed to by Stockholder, maintain in effect at all times the $1,150,000 of life
insurance for its benefit now carried on the life of the Stockholder to provide
to the Company.
A. Description of Policies. Notwithstanding any provision of this
Redemption Agreement to the contrary, the Stockholder and the Company
hereby agree that the $1,150,000 of life insurance maintained by the
Company under paragraph 3 hereof consists of Crown Life Insurance Company
Policy No. 1983893 in the amount of $400,000 and Sun Life Assurance Company
of Canada Policy No. UB8126194R in the amount of $750,000. All references
in the Redemption Agreement or any exhibit thereto to Phoenix Mutual Life
Insurance Co. Policy No. 2060237 in the amount of $1,150,000 and Sun Life
Assurance Company of Canada Policy No. UB8126193V in the amount of
$2,000,000 are hereby deleted.
4. Priority for Application of Insurance Proceeds. The obligation of the
Company hereunder is subject to the following payments which will be the
priority for disbursement of the proceeds of the policies owned by the Company
on the life of the Stockholder:
A. To repay policy loans.
B. To the extent possible, to use the balance of such insurance
proceeds to redeem the stock of the Stockholder.
5. Limitations on Obligation of Company. The fulfillment of the
obligations of the Company herein is subject to the compliance with the statutes
of the state of incorporation of the Company, and the Company agrees to take all
appropriate steps to comply with applicable statutes.
6. Closing. Upon receipt by the Company of a written demand by the legal
representatives of the Estate of the Stockholder that the Company purchase the
Securities, the Company shall notify the legal representatives that such
purchase and sale of the Securities shall take place at a specified time and
place within 60 days after its receipt of such written demand at the principal
office of the Company and the legal representatives. At the closing of the
purchase and sale of the Securities, upon delivery to the Stockholder of the
Securities to be redeemed in proper form free and clear of all encumbrances, and
duly endorsed for transfer to the Company, the Company shall deliver to the
representatives the purchase price of such securities.
7. Notices. All notices and demands under this Agreement shall be in
writing, and if to the Company will be duly given if delivered by hand to an
officer, or if addressed and mailed by Certified Mail, return receipt requested,
to the Company at 000 Xxxx 0/xx/ Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or
at such other address as the Company may hereafter designate by notice, or, if
to the Stockholder, will be duly given if delivery by hand by an officer of the
Company, or if addressed and mailed, by Certified Mail, return receipt
requested, to the Stockholder or to his legal representative at 0000 Xxxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other address as may appear as
the home address of the Stockholder in the records of the Company.
8. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company, its successors, and assigns, including but not
limited to any corporation or entity which may acquire all or substantially all
of the Company's assets and business or with or into which the Company may be
consolidated or merged. This Agreement shall inure to the benefit of and be
binding upon the Stockholder, his executors and administrators, but may not be
assigned by the Stockholder except to his executors and administrators.
9. Entire Agreement. This instrument contains the entire agreement of the
parties. It may not be amended or terminated orally, but may be amended only by
an agreement in writing signed by the parties. This Agreement will be governed
by the laws of the state of incorporation of the Company.
IN WITNESS WHEREOF, the parties have executed this agreement pursuant to
authority duly given, this 14/th/ day of September, 1994.
XXXXXXXX INDUSTRIES, INC.
[CORPORATE SEAL] By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
President
ATTEST:
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxxx [SEAL]
------------------------------ -----------------------------
Secretary Xxxxxx X. Xxxxxxxx
STATE OF NORTH CAROLINA
FIFTH MODIFIED REDEMPTION AGREEMENT
COUNTY OF MECKLENBURG
THIS FIFTH MODIFIED REDEMPTION AGREEMENT is dated September 26, 1995, by
and between XXXXXX X. XXXXXXXX (the "Stockholder") and XXXXXXXX INDUSTRIES, INC.
(the "Company").
WITNESSETH:
The parties hereto have previously entered into a Redemption Agreement
dated May 31, 1974, that was mutually terminated by Agreement dated March 6,
1980, reinstated and modified by Modified Agreement dated April 14, 1987 and
thereafter further modified by a Second Modified Redemption Agreement dated
September 30, 1991,by a Third Modified Redemption Agreement dated July 14, 1993,
and by a Fourth Modified Redemption Agreement dated September 14, 1994 (all
collectively known as the "Redemption Agreement"); and
The parties desire to further modify the Redemption Agreement in certain
respects, to limit the amount of stock that will be redeemed from the
Stockholder's estate.
NOW, THEREFORE, the parties hereto agree as follows:
1. Paragraph 4-B of the Redemption Agreement is hereby amended to read as
follows:
B. To the extent possible, to use the balance of such insurance
proceeds to redeem the stock of the Stockholder; however, in no case will
the stock redeemed exceed an amount that will reduce the Stockholder's
estate's percentage of the outstanding stock of the Company to less than
sixteen percent (16%).
2. Except as modified herein, the Redemption Agreement will not otherwise
be affected by this Fifth Modification Agreement and the terms thereof will
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement the date and
year first set forth above.
XXXXXXXX INDUSTRIES, INC.
[CORPORATE SEAL] By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
President
ATTEST:
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxxx [SEAL]
----------------------------------- -----------------------------
Secretary Xxxxxx X. Xxxxxxxx
