Exhibit 10.12
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Put and Call Agreement
This Put and Call Agreement ("Agreement") dated as of June 20,1997, is by and
between TKO Finance Corporation, an Illinois corporation with its principal
place of business at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
("Lender") and ICON Holdings Corp., a Delaware corporation with its principal
place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Borrower").
WHEREAS Lender is making a loan to Borrower in an original outstanding principal
amount not to exceed $3,000,000 pursuant to that certain Loan and Security
Agreement of even date herewith ("Loan Agreement");and
WHEREAS in addition to Lender's rights under the Loan Agreement Borrower has
agreed as additional consideration to grant to Lender certain rights in the
Class B Non-Voting common stock of Borrower.
NOW THEREFORE for and in consideration of the mutual covenants and agreements
set forth herein, and in the Loan Agreement, Lender and Borrower hereby as
follows:
1. Stock.
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Borrower has issued and contemporaneously with the execution of this
Agreement is delivering and conveying to Lender 1000 shares of the Class B non-
voting common stock of Borrower ("Stock") as evidenced by a stock certificate
listing Lender as owner of such Stock, a copy of which is attached hereto as
Exhibit A.
2. Grant of Put.
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Borrower hereby grants to Lender the right to require Borrower (each such
requirement a "Put") to purchase the Stock on the dates, in the amounts and for
the consideration set forth below.
3. Exercise of Put.
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(a) Each Put shall be exercised by not less than 30 days prior written
notice given by Lender to Borrower at its address set forth below
(which notice shall be irrevocable once given). Each such notice
("Put Notice") shall: (i) be executed by an officer of Lender and
shall reference this Agreement, (ii) shall set forth the number of
shares of Stock Lender intends to transfer to Borrower pursuant to
such Put and (iii) shall include instructions setting forth where
and in what manner the purchase price of the shares of Stock in
question should be remitted. At the closing of each Put Lender
shall deliver to Borrower the Stock certificate in Lender's
possession; Borrower agrees to promptly issue a replacement
certificate for the number of shares of Stock of the prior
certificate reduced by the number of shares subject to
the Put. If Lender owns no shares of Stock following the close of a
Put, no replacement certificate shall be issued by Borrower. The
purchase price of Stock subject to a Put shall be paid by Borrower
in cash on the closing dates as specified below.
(b) At a closing date occurring on April 30, 2000, Lender by a
Put Notice may require Borrower to purchase up to 200 shares of
Stock at a purchase price of S432.22 per share.
(c) At a closing date occurring on April 30, 2001, Lender by a
Put Notice may require Borrower to purchase up to 350 Shares
of Stock at a price equal to $432.22 per share and, if so
specified by Lender, Lender may require Borrower to purchase
all or any of the shares of Stock which had been available
to be put to Borrower pursuant to Section 3(b) above but
which had not theretofore been put to Borrower.
(d) At a closing date occurring on April 30, 2002, Lender by a Put
Notice may require Borrower to purchase up to 450 shares of
Stock at a price equal to $432.22 per share and, if so specified
by Lender, Lender may require Borrower to purchase all or any of
the shares of Stock which had been available to be put to
Borrower pursuant to the provision of Sections 3(b) and 3(c)
above but which had not theretofore been put to Borrower.
4. Grant of Call.
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Lender hereby grants to Borrower the right to require Lender to convey to
Borrower the Stock (each such requirement a "Call") on the dates, in the amounts
and for the consideration set forth below.
5. Exercise of Call.
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(e) Each Call shall be exercised by not less than 120 days prior
written notice sent by Borrower to Lender at Lender's address
set forth below (which notice shall be irrevocable once given).
Each such notice ("Call Notice") shall: (i) be executed by an
officer of Borrower and shall reference this Agreement and (ii)
set forth the number of shares of Stock Lender is required to
transfer to Borrower pursuant to such Call. Lender shall
acknowledge its receipt of every Call Notice and shall designate
in such acknowledgment where and in what manner the purchase
price of the shares of Stock subject to the Call should be
remitted and such acknowledgment shall be accompanied by the
Stock certificate then in Lender's possession; upon the closing
of the Call Borrower agrees to promptly issue a replacement
certificate for the number of shares of Stock of the prior
certificate reduced by the number of shares of Stock subject to
the Call. If Lender owns no shares of Stock following the
closing of a Call, no replacement certificate shall be issued by
Borrower. All shares of
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Stock subject to a Call shall be paid for by Borrower in cash on the
closing dates as specified below.
(f) At a closing date occurring on February 15, 2000, Borrower by a
Call Notice may require Lender to convey to it up to 200 shares of
Stock at a purchase price of $480.07 per share.
(g) At a closing date occurring on February 15, 2001, Borrower by a
Call Notice may require Lender to convey to it up to 350 shares of
Stock at a purchase price of $480.07 per share and, if so specified
by Borrower in any such notice, Lender shall also be required to
convey to Borrower all or any of the Stock specified in Section 5(b)
available to be called by Borrower but which had not theretofore
been so called.
(h) At a closing date occurring on February 15, 2002, Borrower by a
Call Notice may require Lender to convey to it 450 shares of Stock
at a purchase price of S480.07 per share and, if so specified by
Borrower, Lender shall also be required to convey to Borrower
all shares of Stock which could have been called by Borrower
pursuant to the provisions of Section 5(b) and 5(c) above but
which were not so called.
6. Further Agreements of Lender and Borrower.
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Lender and Borrower hereby agree as follows:
(f) In the event that on October 30, 2002 Lender owns any
shares of Stock, Borrower shall redeem such stock by paying to
Lender on such date, in cash, the sum of $480.07 for each share of
Stock then owned by Lender against delivery by Lender to Borrower of
its certificate evidencing Lender's ownership of such Stock.
(g) Except in the event of a breach by Borrower of any provision
contained in this Agreement, Lender agrees not to convey any of the
Stock to any person other than Borrower.
(h) Lender agrees to keep to the Stock free of all liens and
encumbrances of every kind and character.
(i) In the event Lender fails to convey to Borrower any shares of
Stock properly called by Borrower, with the purchase price properly
tendered, pursuant to the provisions of Section 5 hereof, such
shares shall, for all purposes of this Agreement be deemed to have
been acquired by Borrower notwithstanding the failure by Lender to
accept payment for such shares and Lender's failure to tender its
Stock certificate to Borrower as required by the provisions of
Section 5.
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(j) in the event a Put Notice and Call Notice shall have been validly
given with respect to the same shares of Stock, the Call Notice
shall prevail.
(k) Upon the occurrence Of an Event of Default (as such term is
defined in Section 8.1 of the Loan and Security Agreement dated as
of June 20, 1997 between Lender and Borrower ("Loan and Security
Agreement"), Borrower shall be deemed to have exercised the Call of
all shares of Stock which have not been theretofore put to or called
at the purchase price specified in Section 5 hereof.
(l) In the event Borrower exercises its right to prepay the Loan
pursuant to Section 2.4 of the Loan and Security Agreement, Borrower
shall be deemed to have exercised the Call of all shares of Stock
which have not been theretofore put to or called at the purchase
price specified in Section 5 hereof.
7. Stock Registration.
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In the event Borrower, at any time, proposes to register any of its stock or
other securities under the Securities Act of 1933, as amended ('Securities
Act"), Lender shall have the right to convert its shares of Stock into shares of
stock of the type that Borrower proposes to register and Borrower shall use its
best efforts to cause such Stock to be registered under the Securities Act at no
fee or expense to Lender (other than underwriters discounts or commissions). If
the date the registration statement is filed ("Filing Date") occurs before the
dates Borrower may first close on the Calls as specified in 5(b), 5(c) and 5(d)
("Applicable Call Date"), the number of shares to be issued to Lender as of the
Filing Date shall be equal to the sum of the present values of each of the per
share "call amounts" multiplied by the number of shares of Stock then owned by
Lender measured from each Applicable Call Date to the Filing Date based on a
present value rate equal to 12.5% divided by the proposed price per share using
the low point of the range of the proposed offering price of the registered
offering. If the Filing Date occurs on or after any Applicable Call Date, the
number of shares to be issued shall be equal to the sum of the "call amounts" on
each Applicable Call Date prior to the Filing Date plus the sum of the present
value of each "call amount" remaining to be paid measured from each Applicable
Call Date to the filing Date based on the discount rate and the proposed
offering price as described in the previous sentence.
8. Representation and Warranties of Borrower.
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Borrower hereby represents and warrants to Lender, as follows:
(a) Borrower is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate
power and authority to conduct its business as it is presently being
conducted and to own and lease its properties and assets.
(b) Borrower is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which the failure to
so qualify would have material adverse effect on the business or
financial condition of Borrower.
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(c) All shares of Stock have been duly authorized and validly issued and
are fully paid and nonassessable.
(d) Upon delivery to Lender of the certificate representing the Stock,
Lender will acquire good and valid title to the Stock, free and
clear of all liens (other than those created by Lender).
(e) Borrower has all necessary corporate power and authority to enter
into this Agreement and has taken all corporate action necessary to
consummate the transactions contemplated hereby, and to perform its
obligations hereunder. This Agreement has been duly executed and
delivered by Borrower and is the legal, valid and binding obligation
of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforcement may be affected by bankruptcy or
other laws of general application affecting the rights of creditors
or general principles of equity.
(f) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby and thereby,
will result in (i) a violation of or a conflict with any provision
of the certificate of incorporation or bylaws of Borrower (ii) a
breach of, or a default under, any term or provision of any material
contract, agreement, lease, license, franchise, permit,
authorization or concession to which Borrower is a party or by which
its assets are bound, which breach or default would have a material
adverse effect on the financial condition of the Borrower or the
ability of the Borrower to consummate the transactions contemplated
hereby or (iii) a violation by Borrower of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction,
decree or award, which violation would have a material adverse
effect on the business or financial condition of the Borrower or the
ability of the Borrower to consummate the transactions contemplated
hereby.
(g) No consent, approval or authorization of, or declaration, filing or
registration with, any Person is required to be made or obtained by
Borrower in connection with the execution, delivery, and performance
by Borrower of this Agreement other than those which have been made
or obtained.
9. Representations, Warranties, and Covenants of Lender.
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Lender hereby represents and warrants to Borrower as follows:
(a) Lender is a duly organized, validly existing corporation, in good
standing under the laws of Illinois, and has full corporate power
and authority to conduct its business as it is presently being
conducted and to own and lease its properties and assets. Lender
is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which such qualification
is necessary as a result of the conduct of its business or the
ownership of its properties and where failure to be qualified
would have a material adverse effect on the business or financial
condition of Lender.
(b) Lender has all necessary corporate powers and authority to enter
into this Agreement, and has taken all corporate action necessary
to consummate the transactions contemplated hereby and thereby,
and to perform its obligations
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hereunder and thereunder. This Agreement has been duly executed and
delivered by Lender and is the legal, valid and binding obligations
of Lender, enforceable against it in accordance with its terms,
except as such enforcement may be affected by bankruptcy or other
laws of general application affecting the rights of creditors or
general principles of equity.
(c) No consent, approval or authorization of, or declaration, filing
or registration with, any person is required to be made or
obtained by Lender in connection with the execution, delivery and
performance by Lender of this Agreement other than those which
have been made or obtained.
(d) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby will result in
(i) a violation of or a conflict with any provision of the
certificate of incorporation or bylaws of Lender, (ii) breach of, or
a default under, any term or provision of any material contract,
agreement, lease, lien, commitment, license, franchise, permit,
authorization or concession to which Lender is a party or by which
any of its property is bound, which breach or default would have a
material adverse effect on the business or financial condition of
Lender or its ability to consummate the transactions contemplated
hereby, or (iii ) a violation by Lender of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction,
decree or award, which violation would have a material adverse
effect on the business or financial condition of Lender or its
ability to consummate the transactions contemplated hereby.
(e) Lender is not in violation of any statute, rule, regulation,
ordinance, code, order, judgment, writ, injunction, decree or award,
which violation would have a material adverse effect on the business
or financial condition of Lender or its ability to consummate the
transactions contemplated hereby.
(f) Upon the conveyance to Borrower of any Stock by Lender pursuant to
the terms of this Agreement, such Stock shall be free of liens and
encumbrances of every kind and character arising through the acts or
omissions of Lender.
10. Miscellaneous.
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(a) No term or provision of' the Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. The headings
contained herein are for convenience and reference only and are
not intended to define or limit the scope of any provisions of
this Agreement.
(b) The Agreement may be executed in one or more counterparts with
the same effect as if the signatures to each counterpart were
upon a single instrument and all counterparts shall together be
considered one and the same instrument.
(c) This Agreement has been delivered in the State of Illinois and
shall in all respects be governed by, and construed in accordance
with, the laws of the State of Illinois without regard to its
conflicts of laws provisions, including all matters of
construction, validity and performance.
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(d) Neither Lender nor Borrower may assign the Agreement in whole or
in part without the prior written consent of the other. The
terms and provisions of this Agreement shall inure to the benefit
of and be binding on Lender and Borrower and their respective
successors and permitted assigns.
(e) Lender and Borrower shall, from time to time, do and perform such
other and further acts and execute and deliver any and all such
other and further instruments as may be required by law or
reasonably requested by other party to establish, maintain and
protect the respective rights and remedies of the other party and
to carry out the intent and purpose of this Agreement.
(f) This Agreement constitutes the entire understanding of the
parties with respect to the Stock and may not be amended except
by a written instrument executed by lender and Borrower.
IN WITNESS WHEREOF Lender and Borrower have executed this Agreement as of the
date first above written.
Lender: Borrower:
TKO Finance Corporation ICON Holdings Corp.
By: By:
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Title: Title:
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