Exhibit No. 99.44
OPTION EXERCISE
THIS AGREEMENT is entered into as of the 16th day of February, 2005 (the
"Closing Date"), by and between Xxxxxxx Bank, as trustee of the Xxxxxxxx X.
Xxxxxxxx Third Party Gift and Inheritance Trust (the "Purchaser"), and Xxxxxxx
X. Xxxxxxx and Xxxxxxx Bank, as co-trustees of the Xxxxxx X. Xxxxxxx 1988 Trust
Number One dated September 14, 1988 (the "Seller").
RECITALS
A. On June 27, 2003, Xxxxxx X. Xxxxxxx, as trustee of the Xxxxxx X. Xxxxxxx
1988 Trust Number One, entered into an option agreement (the "Option Agreement")
with his children, including Xxxxxxxx X. Xxxxxxxx.
B. Pursuant to the Option Agreement, each of Xxxxxx X. Xxxxxxx'x children
have the right to purchase certain assets of Seller, including all shares of
stock or other interests (including interests in a voting trust) in Xxxxxxx
Outdoors, Inc., a Wisconsin corporation, during the period beginning on May 22,
2004, the date of Xxxxxx X. Xxxxxxx'x death, and ending on February 22, 2005.
C. Pursuant to the Option Agreement, the price to be paid for an Option
Asset is the fair market value of such asset on the date the option is
exercised. If market quotations are available for an asset, such as Class A
shares of Xxxxxxx Outdoors, Inc., fair market value is the closing price for
such asset on the business day immediately preceding the day the option is
exercised. If market quotations are not available for an asset, such as Class B
shares and Class B voting trust certificates of Xxxxxxx Outdoors, Inc., the fair
market value of such asset must be established by an independent appraiser
agreeable to both Purchaser and Seller.
D. Prior to the Closing Date, Xxxxxxxx X. Xxxxxxxx assigned to Purchaser
the option to purchase the following interests in Xxxxxxx Outdoors, Inc., a
Wisconsin corporation: 192,489 Class A shares, 6,250 Class B shares and 11,761
Class B voting trust certificates.
E. Purchaser now desires to exercise in part such option on the terms and
conditions set forth in this agreement.
AGREEMENT
1. Exercise of Option. Purchaser hereby exercises its option to purchase
the following interests in Xxxxxxx Outdoors, Inc., a Wisconsin corporation:
113,489 Class A shares, 6,250 Class B shares and 11,761 Class B voting trust
certificates (the "Option Assets"). Seller hereby sells the Option Assets to
Purchaser.
2. Purchase Price. In exchange for the Option Assets, Purchaser herewith
delivers to Seller $2,643,150.00, subject, however, to paragraph 3 below (the
"Purchase Price"). The Purchase Price shall be payable by Purchaser's delivery
to Seller of $367,150.00 in cash and Purchaser's execution and delivery to
Seller of a secured promissory note substantially in the form of Exhibit A
attached hereto in the principal amount of $2,267,000.00. Purchaser and Seller
acknowledge and agree that their intent is that the Purchase Price be the actual
fair market value of the Option Assets on the Closing Date.
3. Adjustment of Purchase Price. The Purchase Price reflects a price of
$20.10 for each Option Asset purchased. Purchaser and Seller have selected
Willamette Management Associates (the "Appraiser") to determine the fair market
value of the Option Assets consisting of Class B shares and Class B voting trust
certificates on the Closing Date (the "Appraised Value"). Because such appraisal
could not be completed prior to the Closing Date, the Purchaser and Seller have
estimated the fair market value of the Option Assets consisting of Class B
shares and Class B voting trust certificates as $362,021.10 ("Estimated Fair
Market Value") based upon the information known to them as of the Closing Date.
If the Appraiser determines that the Estimated Fair Market Value is not equal to
the fair market value of the Option Assets consisting of Class B shares and
Class B voting trust certificates as of the Closing Date, then within a
reasonable period after the Appraiser determines the Appraised Value, Purchaser
and Seller agree the following will occur:
(a) In the event the Appraised Value exceeds the Estimated Fair Market
Value, Purchaser shall deliver to Seller the difference between the
Appraised Value and the Estimated Fair Market Value paid on the Closing
Date.
(b) In the event the Estimated Fair Market Value exceeds the Appraised
Value, Seller shall refund to Purchaser the difference between the
Estimated Fair Market Value paid on the Closing Date and the Appraised
Value.
(c) If either Purchaser or Seller fails to take appropriate action to
make the adjustments set forth in this paragraph within a reasonable time
after the Appraiser determines the Appraised Value, then the other party
may take any action, pursue any remedy or constitute legal proceedings to
enforce this paragraph and the terms of this Agreement.
4. Parties in Interest. This agreement binds the parties hereto and their
respective executors, administrators, legal representatives, trustees, heirs,
distributees, legatees, successors and assigns. Nothing expressed or implied in
this agreement is intended or may be construed to confer on any other person any
rights, remedies, obligations or liabilities under or by reason of this
agreement.
5. Entire Transaction. This agreement contains the entire understanding
among the parties hereto with respect to the transaction contemplated hereby and
supersedes all other agreements and understandings between the parties with
respect to the transaction.
6. Applicable Law. The internal laws of the State of Wisconsin govern this
agreement.
7. Severability. If any provisions hereof shall be or become unenforceable
for any reason, the validity and effect of all other provisions shall not be
affected thereby.
8. Headings. The headings contained in this agreement are for reference
purposes only and will not affect the meaning or interpretation of any provision
hereof.
9. Counterparts. This agreement may be executed in multiple counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PURCHASER: SELLER:
XXXXXXXX X. XXXXXXXX THIRD PARTY XXXXXX X. XXXXXXX 1988 TRUST
GIFT AND INHERITANCE TRUST NUMBER ONE
XXXXXXX BANK, trustee
/s/ Xxxx X. Xxxxxxxx, as agent for
/s/ Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx, Trustee of the
--------------------------------------- Xxxxxx X. Xxxxxxx 1988 Trust Number
Xxxxx X. Xxxxxxxx, Senior Vice President One
------------------------------------
Xxxxxxx Xxxxxx Xxxxxxx, co-trustee
XXXXXXX BANK, co-trustee
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Senior Vice
President
EXHIBIT A
SECURED PROMISSORY NOTE
$2,267,000.00 Racine, Wisconsin
February 16, 2005
Xxxxxxx Bank, as trustee of the Xxxxxxxx X. Xxxxxxxx Third Party Gift and
Inheritance Trust ("Borrower"), hereby promises to pay to the order of Xxxxxxx
X. Xxxxxxx and Xxxxxxx Bank, as trustees of the Xxxxxx X. Xxxxxxx 1988 Trust
Number One ("Lender"), on the "maturity date" (defined below) the principal sum
of Two Million Two Hundred Sixty-Seven Thousand Dollars ($2,267,000.00),
together with interest on the unpaid principal balance from time to time
outstanding at the rate of 4.72% per annum until the day preceding the maturity
date. Interest and principal is due and payable annually on December 31st of
each year in accordance with the attached repayment schedule, with a final
payment in an amount necessary to pay all principal and interest then
outstanding on December 31, 2019 (the "maturity date"). Interest shall accrue on
any interest or principal which remains unpaid after 15 days from its due date
at the applicable federal rate under Internal Revenue Code Section 1274(d) in
effect on such due date.
To secure payment of this Note, Borrower has pledged to Lender Borrower's
interest in and to the following interests in Xxxxxxx Outdoors, Inc, a Wisconsin
corporation, and all proceeds thereof: 113,489 Class A shares, 6,250 Class B
shares and 11,761 Class B voting trust certificates ("Collateral"). Borrower
warrants that, while any obligation under this Note remains outstanding,
Borrower will (i) refrain from additional borrowing or making of any loan
without the approval of the Lender and (ii) keep the Collateral free and clear
of all other liens, encumbrances and security interests. In the event of default
under this Note, the Lender may take possession of the Collateral without notice
or hearing.
Borrower may prepay any part or all of the principal amount of this note at
any time and from time to time without penalty, provided that any such
prepayment must be accompanied by a payment of the interest accrued to the date
of the prepayment on the principal amount which is being prepaid.
All payments made hereunder, including any prepayments, will be deemed to
have been made on the date of receipt by Lender. All payments must be made to
Lender at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxx 00000, or at another
place designated by Lender in a written notice to Borrower.
The internal laws of the State of Wisconsin govern and control the
construction, enforceability, validity and interpretation of this note.
The parties hereto waive presentment for payment, notice of dishonor,
protest and notice of protest.
IN WITNESS WHEREOF, Borrower has signed and delivered this Note as of the
date first above written.
XXXXXXXX X. XXXXXXXX THIRD PARTY
GIFT AND INHERITANCE TRUST
XXXXXXX BANK, trustee
*** SAMPLE ***
-----------------------------------------
Xxxxx X. Xxxxxxxx, Senior Vice President
PROMISSORY NOTE
REPAYMENT SCHEDULE
Date Total Payment Interest Due Principal Due Principal Balance
-------------------------------------------------------------------------------------------------
$ 2,267,000.00
31-Dec-05 $ 213,050.16 $ 93,224.01 $ 119,826.15 $ 2,147,173.85
31-Dec-06 $ 213,050.16 $ 101,346.61 $ 111,703.55 $ 2,035,470.30
31-Dec-07 $ 213,050.16 $ 96,074.20 $ 116,975.96 $ 1,918,494.34
31-Dec-08 $ 213,050.16 $ 90,552.93 $ 122,497.23 $ 1,795,997.11
31-Dec-09 $ 213,050.16 $ 84,771.06 $ 128,279.10 $ 1,667,718.01
31-Dec-10 $ 213,050.16 $ 78,716.29 $ 134,333.87 $ 1,533,384.14
31-Dec-11 $ 213,050.16 $ 72,375.73 $ 140,674.43 $ 1,392,709.71
31-Dec-12 $ 213,050.16 $ 65,735.90 $ 147,314.26 $ 1,245,395.45
31-Dec-13 $ 213,050.16 $ 58,782.67 $ 154,267.49 $ 1,091,127.96
31-Dec-14 $ 213,050.16 $ 51,501.24 $ 161,548.92 $ 929,579.04
31-Dec-15 $ 213,050.16 $ 43,876.13 $ 169,174.03 $ 760,405.01
31-Dec-16 $ 213,050.16 $ 35,891.12 $ 177,159.04 $ 583,245.97
31-Dec-17 $ 213,050.16 $ 27,529.21 $ 185,520.95 $ 397,725.02
31-Dec-18 $ 213,050.16 $ 18,772.62 $ 194,277.54 $ 203,447.48
31-Dec-19 $ 213,050.20 $ 9,602.72 $ 203,447.48 $ -
PROMISSORY NOTE
REPAYMENT SCHEDULE
Date Total Payment Interest Due Principal Due Principal Balance
-------------------------------------------------------------------------------------------------
31-Dec-05 $ 213,050.16 $ 93,224.01 $ 119,826.15 $ 2,147,173.85
31-Dec-06 $ 213,050.16 $ 101,346.61 $ 111,703.55 $ 2,035,470.30
31-Dec-07 $ 213,050.16 $ 96,074.20 $ 116,975.96 $ 1,918,494.34
31-Dec-08 $ 213,050.16 $ 90,552.93 $ 122,497.23 $ 1,795,997.11
31-Dec-09 $ 213,050.16 $ 84,771.06 $ 128,279.10 $ 1,667,718.01
31-Dec-10 $ 213,050.16 $ 78,716.29 $ 134,333.87 $ 1,533,384.14
31-Dec-11 $ 213,050.16 $ 72,375.73 $ 140,674.43 $ 1,392,709.71
31-Dec-12 $ 213,050.16 $ 65,735.90 $ 147,314.26 $ 1,245,395.45
31-Dec-13 $ 213,050.16 $ 58,782.67 $ 154,267.49 $ 1,091,127.96
31-Dec-14 $ 213,050.16 $ 51,501.24 $ 161,548.92 $ 929,579.04
31-Dec-15 $ 213,050.16 $ 43,876.13 $ 169,174.03 $ 760,405.01
31-Dec-16 $ 213,050.16 $ 35,891.12 $ 177,159.04 $ 583,245.97
31-Dec-17 $ 213,050.16 $ 27,529.21 $ 185,520.95 $ 397,725.02
31-Dec-18 $ 213,050.16 $ 18,772.62 $ 194,277.54 $ 203,447.48
31-Dec-19 $ 213,050.20 $ 9,602.72 $ 203,447.48 $ -
