RESTATED EXCLUSIVE PURCHASE OPTION AGREEMENT
THIS AGREEMENT is made as of the 18th day of October, 1995, by and among
Xxxx International Holdings, Inc., a Delaware corporation (the "Purchaser"),
Innovative Accessories, Inc., an Oklahoma corporation (the "Company"), Xxxxx X.
Xxxx and Xxxxxxx Xxxx, individuals residing in Oklahoma as husband and wife, as
joint tenant owners of a majority of the outstanding shares of the capital stock
of the Company, Xxxxxx X. Xxxxx, an individual residing in Oklahoma as an owner
of a minority of the outstanding shares of the capital stock of the Company, and
Xxxxxx X. and Xxxxx X. Xxxx, individuals residing in Oklahoma as husband and
wife, joint owners of a minority of the outstanding shares of the capital stock
of the Company (the "Sellers").
RECITALS
A. Certain of the parties hereto have entered into an Exclusive Purchase
Option Agreement, dated October 18, 1995.
B. The parties to this Agreement desire to restate said Option Agreement.
X. Xxxxxxx are the owners of 100% of the issued and outstanding shares of
capital stock of the Company, consisting of 10,000 shares (the "Shares") of
common stock.
D. Purchaser desires to acquire an option to purchase the Shares from
Sellers, and Sellers desire to sell such Shares on the terms and conditions
contained herein.
E. In connection with the grant of the option described herein, the
Purchaser has agreed to loan to the Company $1,250,000 (or such larger amount as
may be agreed to by the Purchaser and the Company) and the Company has agreed to
enter into such loan, subject to a loan agreement, such loan to be evidenced by
the Company's Secured Promissory Note (the "Note") in the principal amount of
$1,250,000 (or such larger amount) secured by collateral described in the
Security Agreement between the Purchaser and the Company.
TERMS AND CONDITIONS
1. Definition. As used in this Agreement, the following terms shall have
the following meanings:
"Net Equity Value at Time of Funding" means the sum of the cash,
receivables and inventory of the Company, subtracted by the amount of
nonshareholder liabilities owed by the Company on the date the Note is
executed.
"Net Equity Value at Time of Exercise of Option" means the sum of the
cash, receivables and inventory on the date of closing of the exercise of
the Option, plus the amount of capital expenditures made by the Company
subsequent to the date hereof, less the amount of nonshareholder
liabilities owed by the Company on such date.
2. Grant of Option. For good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Sellers hereby each grant to Purchaser the
exclusive irrevocable right and option (the "Option") to purchase from the
Sellers all (but not less than all) of the Shares. The term of the Option (the
"Option Period") shall be for the period commencing June 30, 1996 and expiring
on June 30, 1997, inclusive of such dates.
3. Manner of Exercise, Closing and Closing Date. Purchaser may exercise the
Option at any time during the Option Period by giving written notice to Sellers
at least sixty (60) days in advance stating that the Option is being exercised.
Purchaser must exercise the Option at the conclusion of the Option Period if the
Company has shown profits for the eighteen months preceding the expiration of
the Option Period, as demonstrated by positive pretax income reflected on
financial statements prepared in accordance with generally accepted accounting
principals, as certified by Purchaser's certified public accountants and no
material adverse event affecting the condition (financial or otherwise) or
prospects of the Company has occurred. The closing of the exercise of the Option
shall take place at the offices of the Purchaser at 000 Xxxx Xxxxxxxxx, Xxxxx,
XX 00000 (the "Closing"). At the Closing, the Purchaser will deliver the
purchase price provided for in Section 4 of this Agreement; and the Company and
each Seller will deliver stock certificates duly endorsed for transfer. The
written notice from the Purchaser shall set forth the date for the purchase of
the Shares, which date shall be not less than sixty (60) or more than sixty-five
(65) days after the date of such notice (the "Closing Date").
4. Purchase Price. In the event the Option is exercised during the Option
Period:
(a) The Purchaser shall pay to Xx. Xxxxx for her Shares, and in full
satisfaction of all amounts owed to her by the Company, an amount equal to
the difference between Two Million One Hundred Thousand Dollars
($2,100,000.00) (the "Base Purchase Price"), as adjusted, and the amount
outstanding under the Note at the time the Option is exercised;
(b) The Purchaser shall pay Mr. and Xx. Xxxx, jointly, an amount equal
to the amount that the Company has paid the Purchaser in repayment of the
Note and shall release Xx. Xxxx as a guarantor of the Note and that certain
Loan Agreement between the Purchaser and the Company.
(c) The Base Purchase Price shall be increased or decreased by the
increase or decrease, respectively, between the Net Equity Value at Time of
Funding and the Net Equity Value at Time of Exercise of Option.
(d) If the Base Purchase Price, as adjusted, is in excess of
$2,100,000, then Xxxxx X. Xxxx, Xxxxxx X. Xxxxx, and Xxxxxx X. Xxxx will
jointly direct Xxxx as to how such excess shall be paid.
(e) It is agreed that the Company will pay Xx. Xxxxx $4,620 per month
in loan repayment amounts until the Option is exercised.
5. Representations, Warranties and Covenants of Sellers. Each of the
Sellers and the Company jointly and severally represent and warrant to, and
covenant with, Purchaser as follows:
(a) Each Seller owns, and on the Closing Date will own, his or her
Shares free and clear of all liens, claims, agreements, pledges,
restrictions and encumbrances, whether oral or written, perfected or
unperfected or direct or indirect.
(b) Each Seller has, and on the Closing Date will have, the right to
sell his or her Shares to Purchaser.
(c) On the Closing Date, Purchaser shall receive good and marketable
title to the Shares.
(d) During the Option Period, neither the Company nor any of the
Sellers will enter into any discussions or negotiations, or enter into any
transactions by which the business or assets or any part thereof, any of
the Shares or other capital stock of the Company or any part thereof, are
or will be sold, assigned, transferred or pledged to any other party,
whether by contract, operation of law, or otherwise. If any Shares are
sold, assigned, transferred or pledged, despite the prohibition against
such act or event, such Shares shall nonetheless remain fully subject to
this Agreement and the purchaser, assignee, transferee or pledgee shall be
bound hereby.
(e) During the Option Period, the Company will, and the Sellers will
cause the Company to:
(i) Provide to Purchaser written financial reports of the
Company, including an income statement and a balance sheet, for each
month following October 1, 1995, within 15 days of the last day of
each such month;
(ii) Provide Purchaser and any agent of the Purchaser access to
the Company's books and records for inspection of such books and
records at reasonable times and upon reasonable notice from Purchaser;
(iii) Cooperate with Purchaser and Purchaser's accounting firm in
preparing an opening a balance sheet on the Company upon the execution
of this agreement at the Company's expense.
(f) During the Option Period, the Purchaser shall hire an retain a
controller/financial officer to review the operations of the Company.
(g) During the Option Period, the Company shall operate its business
in the ordinary course and shall neither make, declare nor issue any
payments, dividends or distributions with respect to its capital stock (in
cash, securities or property, whether tangible or intangible) or any
rights, options or warrants. The Company will pay historical salaries to
its non shareholder employees and will not increase salaries in excess of
five per cent (5%) of such employees' annual current salary. The Company
shall make no payments to shareholders of the Company without specific
authorization of the Purchaser, except that Xxxxx X. Xxxx may receive a
normal and customary salary which shall initially be One Hundred Twenty
Thousand Dollars ($120,000.00), adjusted only with specific authorization
of the Purchaser.
(h) This Agreement has been duly and validly executed and delivered by
Sellers and the Company and constitutes the valid and binding obligation of
Sellers and the Company, respectively, enforceable against Sellers in
accordance with its terms.
The representations, warranties and covenants of Sellers and the Company
contained in this Agreement shall survive the execution and delivery of this
Agreement. Notwithstanding anything to the contrary contained in this Agreement,
Purchaser shall have the right to exercise the Option without releasing Sellers
or the Company from any liability for any loss or damage sustained by Purchaser
by reason of the breach by Sellers or the Company of any covenant, obligation or
agreement contained herein, or by reason of any misrepresentation made by
Sellers or the Company regardless of whether such breach or misrepresentation is
known to Purchaser on the Closing Date.
6. Indemnification.
(a) Sellers and the Company shall jointly and severally indemnify and
hold Purchaser harmless at all times from, against and in respect of any
and all damage, loss, claim or expense (including any and all actions,
suits, proceedings, demands, judgments, settlements, costs and legal and
other expenses) which Purchaser may sustain (i) resulting from any
misrepresentation, breach of warranty, or noncompliance with any obligation
or covenant on the part of Sellers or the Company to be performed under
this Agreement or (ii) resulting from the operations or conduct of the
business of the Company prior to the Closing Date.
(b) Purchaser shall indemnify and hold Sellers or the Company harmless
at all times from, against and in respect of any and all damage, loss,
claim or expense (including any and all actions, suits, proceedings,
demands, judgments, settlements, costs, and legal and other expenses) which
Sellers or the Company may sustain resulting from any misrepresentation,
breach of warranty, or noncompliance with any obligation or covenant on the
part of Purchaser to be performed under this Agreement.
7. Confidentiality. Each of the Company, Purchaser and Sellers will hold,
and will use its best efforts to cause its officers, directors, employees,
consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law,
all confidential documents and information concerning the other party hereto and
its subsidiaries furnished in connection with the transactions contemplated by
this Agreement, including, without limitation, all of the terms and conditions
of this Agreement, except to the extent that such information can be shown to
have been (i) previously known to such party on a nonconfidential basis, (ii) in
the public domain through no fault of such party or (iii) later lawfully
acquired by such party from other sources; provided that each of the Company,
Purchaser and Sellers may disclose such information to its officers, directors,
employees, consultants, advisors and agents in connection with the transactions
contemplated by this Agreement so long as such persons are informed of the
confidential nature of such information and are directed to treat such
information confidentially. A party's obligation to hold such information in
confidence shall be satisfied if it exercises the same care with respect to such
information as it would exercise to preserve the confidentiality of its own
similar information. Such confidentiality shall also be maintained during and
after the time the Purchaser exercises its Option to exercise the Sellers'
Shares, if such event should occur. The parties recognize Purchaser's
obligation, as a public company, to make certain public disclosures.
8. Finder's Fees. Purchaser, Sellers and the Company represent and warrant
to each other that no brokerage commission or finder's fees have been incurred
in connection with this Agreement and the transactions contemplated hereby.
9. Successors and Assigns. This Agreement will be binding upon, inure to
the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto. Without the consent of the other, neither Purchaser nor Sellers shall
assign his/her or its rights or delegate his or its obligations hereunder to any
other person; provided, however, that Purchaser may assign its rights hereunder
to an affiliate of Purchaser, which shall assume Purchaser's obligations under
this Agreement.
10. Legends. Sellers will promptly cause all certificates representing
their shares in the Company to have the following legend printed thereon:
The shares represented by this certificate are subject to an Exclusive
Purchase Option Agreement, and may not be sold, assigned, pledged or
transferred. A copy of such Agreement is on file at the offices of the
Company.
11. Entire Agreement. This Agreement contains the entire understanding of
the parties and, when fully executed, supersedes all prior agreements and
understandings between the parties, including without limitation the Exclusive
Purchase Option Agreement, dated October 15, 1995, with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by the parties to be bound.
12. Counterpart Signatures. This Agreement may be executed in counterparts,
each of which will be deemed to be an original, but all of which together with
constitute one and the same instrument.
13. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of Minnesota without giving any
effect to principles of conflict of laws.
14. Notices. All notices hereunder shall be in writing and shall be deemed
to have been given at the time when mailed by registered or certified mail,
addressed to the address below stated of the party to which notice is given, or
to such changed address as such party may have fixed by notice:
To Sellers: Xxxxx X. and Xxxxxxx Xxxx
Innovative Accessories, Inc.
0000 Xxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Xx. Xxxxxx X. Xxxxx
00000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxxx X. and Xxxxx X. Xxxx
00000 Xxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
To the Company: Innovative Accessories, Inc.
0000 Xxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
To Purchaser: Xxxx International Holdings, Inc.
000 Xxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
- with a copy to -
Xxxxxxx, Street and Deinard
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
provided, however, that any notice of change of address shall be effective only
upon receipt.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxx Xxxxxx
Its: Chief Financial Officer
SELLERS
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
INNOVATIVE ACCESSORIES, INC.
By: /s/ Xxxxx X. Xxxx
Its: President
