Exhibit 10.10
AGREEMENT
THIS SECOND AMENDED AND RESTATED AGREEMENT (this "Agreement"),
dated October 30, 2003, among XX-XXX STORES, INC., an Ohio corporation formerly
known as Fabri-Centers of America, Inc. (the "Company"), XXXXX XXXXXXXX, ("Xxxxx
Xxxxxxxx") and XXXX XXXXXXXXX ("Xxxx Xxxxxxxxx"), amends and restates that
certain Amended and Restated Agreement among the Company, Xxxxx Xxxxxxxx and
Xxxxxx and Xxxx Xxxxxxxxx dated September 26, 1997.
IN CONSIDERATION OF good and valuable consideration, the
adequacy of which is hereby acknowledged, the parties agree as follows:
1. THE SHARES. The "Shares" covered by this Agreement
shall be those common shares of the Company owned on June 2, 1987 or thereafter
acquired by Xxxxxx and Xxxxx Xxxxxxxx or Xxxxxx and Xxxx Xxxxxxxxx, including
those which were reclassified on August 2, 1995 as Class A voting shares of
Common Stock, without par value, and Class B non-voting shares of Common Stock,
without par value, and are to be reclassified on or about November 4, 2003, as
Common Shares, without par value, of the Company. The "Shares" shall not,
however, include any shares which were transferred prior to the date hereof in a
transfer permitted under Section 2 and are now held by the recipient free of the
right of first refusal in Section 3.
2. PERMITTED TRANSFERS.
(a) DEFINITIONS. For purposes of this Section 2 and the
remaining provisions of this Agreement the following terms shall have the
following meanings:
(i) "Rosskamms" shall refer to Xxxxx Xxxxxxxx, the lineal
descendants from time to time living of Xxxxx Xxxxxxxx, the spouse of
any lineal descendent of Xxxxx Xxxxxxxx, and the executor,
administrator or personal representative of any of the foregoing
persons.
(ii) "Zimmermans" shall refer to the Xxxxxx Xxxxxxxxx
Trust, Xxxx Xxxxxxxxx, the lineal decedents from time to time living of
Xxxx Xxxxxxxxx, the spouse of any lineal decedent of Xxxx Xxxxxxxxx,
and the executor, administrator or personal representative of any of
the foregoing persons.
(iii) "Permitted Holder" shall refer to (A) any of the
Rosskamms or Zimmermans, (B) a trustee of a trust all of the beneficial
interests of which are held by one or more of the Rosskamms or
Zimmermans, and (C) a general or limited partnership, limited liability
company, corporation or other entity all of the equity and voting
interests of which are held by or for the benefit of one or more of the
Rosskamms or Zimmermans or a Permitted Holder. For purposes of Section
3, a Permitted Holder described in clause (C) of the preceding sentence
shall be deemed to have disposed of all Shares held by such Permitted
Holder if a person, other than a Permitted Holder, directly holds an
equity interest or has the right to vote a voting interest of such
Permitted Holder.
(iv) If Xxxxx Xxxxxxxx is deceased or incapacitated, her
"Successor" shall be Xxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx, unless prior
to her death or incapacitation she appointed in writing another person
to be her successor for purposes of this Agreement. If Xxxx Xxxxxxxx or
Xxxxxx Xxxxxxxxx, or such other person, as the case may be, is deceased
or incapacitated, Xxxxx Xxxxxxxx'x "Successor" shall be her oldest then
living lineal descendent.
(v) If Xxxx Xxxxxxxxx is deceased or incapacitated, her
"Successor" shall be Xxxxxx Xxxxxxxxxxx and Xxxx Xxxxxxxxxx, unless
prior to her death or incapacitation she appointed in writing another
person to be her successor for purposes of this Agreement. If Xxxxxx
Xxxxxxxxxxx or Xxxx Xxxxxxxxxx or such other person, as the case may
be, is deceased or incapacitated, Xxxx Xxxxxxxxx'x "Successor" shall be
her oldest then living lineal descendent.
(b) SALES OF LIMITED NUMBER OF SHARES. The parties
recognize that excessive sales of Shares by the Rosskamms or the Zimmermans
might adversely affect the market for the publicly traded shares of the Company.
Accordingly, all of the Rosskamms and their Permitted Holders, in the aggregate
on the one hand, and all of the Zimmermans and their Permitted Holders, in the
aggregate on the other hand, are free to sell up to 400,000 Shares (as adjusted
for stock splits, stock dividends or similar recapitalization) free of the right
of first refusal in Section 3 in each calendar year during the term of this
Agreement, but not more than 200,000 shares may be sold in any 180-day period.
Any purchasers of Shares sold under this Section 2(b) will take and hold the
Shares free of the right of first refusal in Section 3.
(c) CHARITABLE CONTRIBUTIONS. The Rosskamms and their
Permitted Holders and the Zimmermans and their Permitted Holders are each
entitled from time to time to make gifts of Shares that qualify as charitable
contributions for federal income tax purposes. Any recipients of Shares given
under this Section 2(c) will take and hold the Shares free of the right of first
refusal in Section 3.
(d) TRANSFERS TO A PERMITTED HOLDER. Any Permitted Holder
is entitled from time to time to transfer an unlimited number of Shares to any
other Permitted Holder. Any Permitted Holder who receives Shares under this
Section 2(d) will, except as provided in Section 2(f) or 2(g), take and hold the
Shares subject to the right of first refusal in Section 3.
(e) TRANSFERS BY ESTATE TO RECIPIENTS OTHER THAN A
PERMITTED HOLDER. The Rosskamms and their Permitted Holders and the Zimmermans
and their Permitted Holders are each entitled from time to time to give,
bequeath, or transfer by testate or intestate succession an unlimited number of
Shares to any Permitted Holder. An executor, administrator, or personal
representative who receives Shares as part of the estate of any of the foregoing
persons, whether by testate or intestate succession, is entitled to transfer the
Shares to any Permitted Holder. Any Permitted Holder who receives Shares under
this Section 2(e) will take and hold the Shares subject to the right of first
refusal in Section 3. Except for transfers permitted pursuant to Sections 2 (b)
or (c), an executor, administrator, or personal representative who receives
Shares as part of the estate of any of the Rosskamms, their Permitted Holders or
any of the Zimmermans or their Permitted Holders, whether by testate or
intestate succession, may transfer the Shares to recipients other than a
Permitted Holder only after the proper parties are afforded the right of first
refusal set forth in Section 3.
(f) SALE TO THE ZIMMERMANS OR THE COMPANY. Any of the
Rosskamms or their Permitted Holders is entitled from time to time to sell an
unlimited number of Shares to the Zimmermans or, with the consent of Xxxx
Xxxxxxxxx (or, if she is then deceased or incapacitated, her Successor), to the
Company at prices and on other terms negotiated by the parties. The Zimmermans
or the Company, as the case may be, will take and hold any Shares purchased
under this Section 2(f) free of the right of first refusal in Section 3.
(g) SALE TO THE ROSSKAMMS OR THE COMPANY. Any of the
Zimmermans or their Permitted Holders is entitled from time to time to sell an
unlimited number of Shares to the Rosskamms or, with the consent of Xxxxx
Xxxxxxxx (or, if she is then deceased or incapacitated, her Successor), to the
Company at prices and on other terms negotiated by the parties. The Rosskamms
and the Company will take and hold any shares purchased under this Section 2(g)
free of the right of first refusal in Section 3.
3. RIGHT OF FIRST REFUSAL. Except for transfers
expressly permitted under Section 2, Xxxx Xxxxxxxxx (or, if she is then deceased
or otherwise incapacitated, her Successor) and the Company will have a right of
first refusal, upon the terms and conditions set forth in this Section 3, with
respect to any disposition, whether voluntary or by operation of law, of Shares
by the Rosskamms or their Permitted Holders, and conversely, Xxxxx Xxxxxxxx (or,
if she is then deceased or otherwise incapacitated, her Successor) and the
Company will have a right of first refusal, upon the terms and conditions set
forth in this Section 3, with respect to any disposition, whether voluntary or
by operation of law, of Shares by the Zimmermans or their Permitted Holders. In
each case the party proposing to dispose of shares is the "Transferor," and the
party holding the right of first refusal is the "Offeree."
(a) NOTICE OF PROPOSED DISPOSITION. Whenever a Transferor
proposes to dispose of all or part of his or her Shares (except for transfers
expressly permitted under Section 2), he or she must offer the Shares to the
Offeree and the Company, by means of a written notice substantially in the form
attached to this Agreement as Exhibit A.
(b) EXERCISE OF RIGHT; PURCHASE PRICE AND TERMS. For a
period of 20 days after delivery of the notice of the proposed disposition, the
Offeree will have the right to purchase all or any portion of the Shares to be
disposed of, and the Company will have the right to purchase any of the Shares
that the Offeree elects not to purchase; however, the right of the Offeree and
the Company to purchase these Shares is conditioned upon the purchase, by the
Offeree, the Company, or both, of all (but not less than all) of the Shares to
be disposed of. The purchase price will be the Market Price of the Shares, as
defined in Section 4, payable in cash upon completion of the purchase. The
Offeree or the Company must deliver written notice to the Transferor of the
election to exercise the right of first refusal within the 20-day period, and
the purchase of the Shares must be completed within 30 days after this notice is
delivered.
(c) FAILURE TO EXERCISE; COMPLETION OF PROPOSED
DISPOSITION. If the Offeree and/or the Company do not exercise the right of
first refusal and purchase the Shares in accordance with Section 3(b), the
Transferor may dispose of the Shares, provided, however, that the proposed
disposition must be completed within 60 days after the expiration of the 20-day
period within which the Offeree and the Company were entitled to exercise the
right of first refusal. Upon compliance with all of the requirements of this
Section 3, including the completion of the disposition within the 60-day period,
the purchaser or recipient
may acquire the Shares free of the restrictions set forth in this Agreement,
including the right of first refusal in this Section 3. If the proposed
disposition is not completed within the 60-day period or any of the other
requirements of this Section 3 are not met or waived in writing by the Offeree
and the Company, the disposition may not be completed and the Shares will remain
subject to the restrictions set forth in this Agreement, but the Transferor may
at any time give a new notice of proposed disposition.
4. MARKET PRICE. The "Market Price" of the Shares will
be an amount equal to the product obtained by multiplying the number of Shares
to be purchased times the average, over the period of 20 consecutive days on
which trading in the Shares is reported ending 10 calendar days prior to the
date on which the Rosskamms or Zimmermans or the Company deliver notice of the
exercise of the right (the "20 trading days"), of: (a) the closing price of the
Shares on each of the 20 trading days as reported by the National Association of
Securities Dealers and Instinet for New York Stock Exchange Composite
Transactions, or (b), if such shares are no longer traded on a national
securities exchange but are traded in the NASDAQ over-the-counter markets for
national market issues, the last sales price of such shares on each of the 20
trading days as quoted in the NASDAQ National Market System, or (c), if such
shares are not traded on a national securities exchange or in the NASDAQ
over-the-counter markets for national market issues, the mean between the
representative bid and asked prices for such shares on each of the 20 trading
days as quoted in NASDAQ or another generally recognized reporting system.
5. BINDING EFFECT; EXECUTION OF COUNTERPARTS BY
RECIPIENTS; ENFORCEMENT. This Agreement will bind the Company, its successors
and assigns, and the Zimmermans, the Rosskamms, and any Permitted Holder, and
their successors, assigns, executors, administrators, and personal
representatives. The Rosskamms, Zimmermans or the Company may, in their or its
discretion, require any Permitted Holder, as a condition to the transfer of any
Shares to the Permitted Holder, to sign a counterpart of this Agreement or other
instrument to confirm that the Permitted Holder will take and hold the Shares
subject to the right of first refusal in Section 3. The failure by any Permitted
Holder to sign a counterpart of this Agreement or other instrument will not,
however, relieve the Permitted Holder of his, her or its obligation to comply
with Section 3. The Rosskamms and Zimmermans will monitor and keep track of
sales permitted under Section 2(b). This Agreement is for the benefit of and may
be enforced by the Company, the Rosskamms, the Zimmermans, and any Permitted
Holder and the successors, assigns, executors, administrators, and personal
representatives of any of the foregoing persons.
6. LEGEND ON SHARES. As soon as practicable following
the completion of the reclassification of the Class A voting shares and the
Class B non-voting shares into a single class of voting Common Shares, Xxxxx
Xxxxxxxx and Xxxx Xxxxxxxxx will deliver to National City Bank, as transfer
agent, certificates for all of the Class A shares and Class B shares owned by
them. Xxxxx Xxxxxxxx and Xxxx Xxxxxxxxx agree that the new certificates to be
issued to them, representing the Common Shares into which the Class A shares and
the Class B shares have been reclassified, shall bear the following legend:
The sale or other disposition of the shares represented by this
certificate is subject to restrictions set forth in a Second Amended
and Restated Agreement, dated
October 30, 2003, among Xx-Xxx Stores, Inc., Xxxxx Xxxxxxxx, and Xxxx
Xxxxxxxxx as amended from time to time. Certain transferees of these
shares will take and hold the shares subject to the restrictions set
forth in the Agreement. Xx-Xxx Stores, Inc. will mail to the
shareholder a copy of this Agreement without charge within five days
after receipt of written request therefor.
In addition, the Rosskamms and the Zimmermans consent to the placing of this
legend on (a) certificates issued to them for any Shares acquired by them after
the date of this Agreement and (b) certificates for any Shares issued to a
Permitted Holder who takes and holds the Shares subject to the right of first
refusal in Section 3.
7. NOTICES. Any notices or other communications required
or permitted to be delivered under this Agreement will be deemed to be delivered
when hand delivered or received by the addressee through the United States mail
(registered or certified mail, return receipt requested) and addressed as
follows:
(a) To the Company at
0000 Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: Chief Executive Officer
(b) To Xxxxx Xxxxxxxx at:
0000 Xxxxx Xxxxxxx Xxxxx, Xxx. 0, X-X,
Xxxxxxxxx, Xxxx 00000
Or at the address of any then current residence known
to the Company or the Zimmermans.
(c) To Xxxx Xxxxxxxxx at:
000 Xxxxxxxx Xxxx,
Xxxxxx Xxxxxxx, Xxxx 00000
Or at the address of any then current residence known
to the Company or the Rosskamms.
Any part may change the address to which notices are to be given by notifying
the other parties of the change.
8. TERM. This Agreement shall not become effective
unless and until the Class A voting shares and the Class B non-voting shares are
reclassified into a single class of voting Common Shares. If such
reclassification does not occur, the Amended and Restated Agreement among the
Company, Xxxxx Xxxxxxxx and Xxxxxx and Xxxx Xxxxxxxxx dated September 26, 1997
shall continue in effect until amended or terminated in accordance with its
terms. Once this Agreement becomes effective, the term of this Agreement shall
continue until the date fifteen years after the death of Xxxxx Xxxxxxxx, or, if
earlier, fifteen years after the death of Xxxx Xxxxxxxxx.
9. MISCELLANEOUS. The rights of any party under this
Agreement may not be assigned without the prior written consent of all of the
other parties. This Agreement will
be interpreted and enforced in accordance with the laws of the State of Ohio;
constitutes the entire agreement among the parties on its subject matter; may be
executed in two or more counterparts; and may be amended only in writing signed
by all of the parties.
IN WITNESS WHEREOF, the parties have signed this Agreement on
the date first written above.
XX-XXX STORES, INC.
By /s/ Xxxxxxx Xxxxxxx Xxxxx
_______________________
Xxxxxxx Xxxxxxx Sachs
Title: Executive Vice President,
General Counsel & Secretary
/s/ Xxxxx Xxxxxxxx
___________________________________
Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxxx
___________________________________
Xxxx Xxxxxxxxx
EXHIBIT A
NOTICE OF PROPOSED DISPOSITION
[Date]
Xxxxx Xxxxxxxx
0000 Xxxxx Xxxxxxx Xxxxx, Xxx. 0, X-X,
Xxxxxxxxx, Xxxx 00000
- OR -
Xxxx Xxxxxxxxx
000 Xxxxxxxx Xxxx,
Xxxxxx Xxxxxxx, Xxxx 00000
- AND -
Xx-Xxx Stores, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: Chief Executive Officer
This notice is being given to you in accordance with the
Second Amended and Restated Agreement, dated October 30, 2003, among Xx-Xxx
Stores, Inc., Xxxxx Xxxxxxxx, and Xxxx Xxxxxxxxx. The undersigned hereby
proposes to make the following transfer of shares that is subject to your right
of first refusal:
Number of shares proposed to be disposed: ________________
Number of shares sold or otherwise disposed in the last six
months by me, my family or Permitted Holders (see definitions in
Section 2) ____________________
Nature of transfer (please check the applicable box):
[ ] market sale (that is, on the NYSE)
[ ] private sale (that is, directly to the purchaser)
[ ] other (please describe: ________________________)
If the recipient of the shares is known, please identify:
__________________________________________________
Proposed price: ________________
Sincerely,
