EXHIBIT 4.5
AGREEMENT
WITH RESPECT TO
CONVERTIBLE DEBENTURES
OF
XXXXX XXXXXX SONS', INC.
THIS AGREEMENT ("Agreement") is made and entered into this
1st day of November, _______ by and between "NAME" ( the
"Debentureholder") and XXXXX XXXXXX SONS', INC, a Delaware
corporation ( the "Corporation").
WHEREAS, it has been and is the policy of the Corporation,
as being in its best interest, to restrict the issuance and
ownership of its convertible debentures ("Debentures"); and
WHEREAS, the Debentureholder desires to own Debentures
subject to the terms and restrictions set forth in this
Agreement.
NOW THEREFORE, in consideration of the issuance of
Debentures to the Debentureholder and for other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged by each of the parties hereto, the Debentureholder
and the Corporation agree as follows:
(1) Debentures Subject to Agreement. This Agreement
shall apply to all Debentures issued to or owned by the
Debentureholder on or before the date of this Agreement and any
additional Debentures which are issued to or owned by the
Debentureholder after the date of this Agreement. This Agreement
supersedes any previous agreement between the Corporation and
the Debentureholder relating to such Debentures and the sale or
repurchase of such Debentures by the Corporation.
(2) Corporation's Purchase of Debentures Upon
Debentureholder's Proposed Disposition of Debentures. Except
for pledges of Debentures to "Qualified Financial Institutions"
(as defined below) as collateral for loans in connection with
the ownership of Debentures, Debentureholder shall not give,
sell, assign, pledge, encumber, hypothecate, transfer or
otherwise dispose of any Debentures, without first offering in
writing to sell the Debentures to the Corporation. The offer to
sell the Debentures to the Corporation by the Debentureholder
shall be accepted by the Corporation and a notice of acceptance
shall be given to the Debentureholder within 30 days following
receipt of the offer from Debentureholder. "Qualified Financial
Institution" shall mean any bank, banking association, trust
company, savings bank, credit union, savings and loan
association or other financial institution which is engaged in
the business of banking or making commercial or consumer loans,
or any subsidiary or affiliate of any such entity.
(3) Corporation's Purchase of Debentures Upon
Debentureholder's Death or Termination of Employment. (a)
The Debentureholder agrees that upon termination of
Debentureholder's employment for any reason, including death,
that Debentureholder, Debentureholder's estate or representative
shall sell all Debentures owned by Debentureholder,
and the Corporation shall purchase all of said Debentures in
accordance with the terms of this Agreement. Notice of the
Corporation's intent to purchase such Debentures shall be given
within 180 days from the date of death, or within 90 days from
the date of termination of employment, as applicable.
(b) Notwithstanding the foregoing, upon the death of a
Debentureholder, such Debentureholder's estate or representative
shall have the option to fix one or more alternate dates for the
sale of the Debentures (including any securities of the
Corporation into which the Debentures are convertible) (but only
with respect to Debentures that are or will be convertible on
the date of the Debentureholder's death or during the calendar
year of the Debentureholder's death) by giving written notice of
such dates to the Corporation and identifying the Debentures to
be sold on such dates. Notice of any alternate sales dates must
be given within 180 days after the death of the Debentureholder
or within 10 days after the date of the Corporation's notice to
sell and deliver such Debentures specified above, whichever
comes first. The earliest alternate sale date may be the date of
the notice given by the representative under this paragraph 3(b)
and the latest sale date shall be the tenth day of January
following the end of the fiscal year of the Corporation during
which the Debentureholder died.
(c) Employment is herewith defined to mean employment
by the Corporation, one of its subsidiaries, a joint venture in
which the Corporation and/or its subsidiaries have a 20 percent
or more interest, KCP, Inc. or any subsidiary thereof or any
joint venture in which KCP, Inc. or any such subsidiary has a 20
percent or more interest. "Subsidiaries" of the Corporation are
any corporation in which this Corporation owns directly or
indirectly at least 20 percent of the outstanding capital stock,
based on the total dollar value of outstanding stock if there is
more than one class of stock outstanding. "Subsidiaries" of KCP,
Inc. are any
corporation in which KCP, Inc. owns directly or
indirectly at least a majority of the outstanding capital stock,
based on the total dollar value of outstanding stock if there is
more than one class of stock outstanding.
(4) Purchase Price and Payment for Debentures. The
purchase price shall be at a price equal to the principal amount
of the Debentures plus accrued and unpaid interest to the date
of purchase. The purchase price shall be paid to the
Debentureholder, or such other person as may be legally entitled
thereto, within 60 days after: (i) the date of mailing of notice
by the Corporation as provided in paragraphs (2) and (3)(a); or
(ii) such later sale date specified in the notice provided
pursuant to paragraph 3(b); provided, that the Corporation
received the Certificate or Certificates evidencing the
Debentures subject to purchase by the Corporation, endorsed in
blank or accompanied by appropriate transfer powers executed in
blank, and accompanied by such other evidence of authority as
may reasonably be required. In the event of failure to deliver
to the Corporation the Certificate or Certificates for the
Debentures subject to purchase with required evidence of
authority: (i) within 30 days after the date of mailing the
notice by the Corporation as provided in paragraphs (2) and
(3)(a) or (ii) on such later sale date specified in the notice
provided pursuant to paragraph 3(b), the Secretary shall be
authorized to cancel such Certificates on the books of the
Corporation and such Debentures shall be deemed to be no longer
outstanding. The holder of such Debentures shall thereafter
have no further interest as a Debentureholder of the Corporation
with respect to such Debentures except to receive the purchase
price therefor. It is further understood and agreed that the
Corporation shall be authorized to deduct from the purchase
price any amount due it or others from the Debentureholder
pertaining to the Corporation's Debentures.
(5) Debentures to be Acquired by Corporation from
Debentureholder. It is agreed by the parties that in the event
any Debenture is tendered by the Debentureholder to the
Corporation, the Corporation shall purchase all of the tendered
Debentures, and in addition thereto, may, at its option,
purchase all or any part of other Debentures then owned by the
Debentureholder.
(6) Notices. Any notices required or permitted to be
given under this Agreement shall be in writing and shall be
sufficient if delivered in person or sent by certified mail,
return receipt requested. The notice to the Debentureholder or
the Debentureholder's personal representatives, if mailed, shall
be sent to the Debentureholder's last known address. The notice
to the Corporation shall be delivered or mailed to the
Secretary, Xxxxx Xxxxxx Son's, Inc., Xxxxxx Xxxxx, Xxxxx,
Xxxxxxxx 00000.
(7) Governing Law. This Agreement shall be governed in
all respects by the laws of the State of Delaware.
(8) Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the heirs, personal
representatives and assigns of Debentureholder and upon the
successors and assigns of the Corporation.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
WITNESS:
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ATTEST: XXXXX XXXXXX SONS', INC.
------------------------------ By------------------
Assistant Secretary President
