EXHIBIT 10.10
STOCK EXCHANGE AGREEMENT
AMONG
TRACK 'N TRAIL, INC., A DELAWARE CORPORATION,
XXXXXXX X. XXXXXXXXX,
XXXXXXX XXXXXXXXX,
XXXXX X. XXXXXXXXX, XX. AND XXXXXX XXXXXXXXX,
TRUSTEES OF THE XXXXXXXXX FAMILY TRUST,
AND
TRACK 'N TRAIL, A CALIFORNIA CORPORATION
OCTOBER 7, 1997
TABLE OF CONTENTS
Page
----
ARTICLE 1 - EXCHANGE OF SHARES. . . . . . . . . . . . . . . . . . . . . . 2
1.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Exchange of Shares . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Delivery of Shares at Closing. . . . . . . . . . . . . . . . . 2
1.4 Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF THE SUECHTINGS. . . . . . . 3
2.1 Capacity;. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Status of TNT-CA Shares. . . . . . . . . . . . . . . . . . . . 3
2.3 Conflicts, Consents and Approval . . . . . . . . . . . . . . . 3
2.4 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Investment Intent; Restricted Securities . . . . . . . . . . . 4
2.6 Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF TNT-DE. . . . . . . . . . . 4
3.1 Corporate Power and Authority. . . . . . . . . . . . . . . . . 4
3.2 Conflicts; Consents; Approvals . . . . . . . . . . . . . . . . 5
3.3 TNT-DE Shares. . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 4 - COVENANTS AND CONSENTS OF THE PARTIES . . . . . . . . . . . . 5
4.1 Mutual Covenants . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Covenants of TNT-DE. . . . . . . . . . . . . . . . . . . . . . 6
4.3 Consent of TNT-CA. . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5 - CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Mutual Conditions. . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Additional Conditions to Obligations of TNT-DE . . . . . . . . 6
5.3 Additional Conditions to Obligations of Suechtings . . . . . . 7
ARTICLE 6 - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 7
6.1 Indemnification by Suechtings. . . . . . . . . . . . . . . . . 7
6.2 Notice and Right To Defend Third-Party Claims. . . . . . . . . 7
ARTICLE 7 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Survival of Representations and Warranties . . . . . . . . . . 9
7.2 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 9
7.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.6 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 9
7.8 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-i-
7.9 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.10 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-ii-
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (this "Agreement") is made and entered
into as of the 7th day of October, 1997, by and among TRACK 'N TRAIL, INC., a
Delaware corporation ("TNT-DE"), XXXXXXX X. XXXXXXXXX ("BJS"), XXXXXXX XXXXXXXXX
("DS"), and XXXXX X. XXXXXXXXX, XX. and XXXXXX XXXXXXXXX, trustees ("Trustees")
of THE XXXXXXXXX FAMILY TRUST (the "Trust") (BJS, DS and the Trust are
hereinafter collectively referred to as the "Suechtings"), and for purposes of
Section 3.1(b) and 4.3 only, TRACK 'N TRAIL, a California corporation
("TNT-CA").
RECITALS
A. The Trust is the owner of 13,816 shares of the issued and outstanding
common stock of TNT-CA (the "Trust Shares"), BJS is the owner of 18,000 shares
of the issued and outstanding common stock of TNT-CA (the "BJS Shares"), and DS
is the owner of 9,000 shares of the issued and outstanding common stock of
TNT-CA (the "DS Shares").
B. The Trust Shares, BJS Shares and DS Shares (collectively, the "TNT-CA
Shares") constitute all of the issued and outstanding capital stock of TNT-CA.
C. On or about May 14, 1997, TNT-DE issued 13,816 shares of its common
stock, $.01 par value ("TNT-DE Common Stock"), to the Trust, 18,000 shares of
TNT-DE Common Stock to BJS and 9,000 shares of TNT-DE Common Stock to DS in
connection with the election by the Company of S corporation status under the
Internal Revenue Code of 1986, as amended. The 40,816 shares of TNT-DE Common
Stock issued to the Suechtings on or about May 14, 1997 are hereinafter
collectively referred to as the "TNT-DE Pre-Exchange Shares."
D. The Suechtings desire to exchange the TNT-CA Shares for additional
shares of TNT-DE Common Stock, on the terms and subject to the conditions set
forth herein.
E. The respective boards of directors of TNT-DE and TNT-CA have
determined the stock exchange in the manner contemplated herein to be desirable
and in the best interests of their respective corporations and, by resolutions
duly adopted, have approved and adopted this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and the mutual and
dependent promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
EXCHANGE OF SHARES
1.1 CLOSING DATE. The date on which the Closing is held shall be referred
to as the "Closing Date." Subject to the satisfaction of the conditions to
closing set forth in Article 5, the closing of the exchange of shares
contemplated hereby (the "Closing") shall be held at the offices of Pillsbury
Madison & Sutro LLP, 000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx, 00000
at such time and date specified by the parties, which date shall be as soon as
practicable, but in any event not earlier than ten days prior to the date on
which TNT-DE first determines in good faith that the Registration Statement on
Form S-1 filed with the Commission by TNT-DE on March 12, 1997, SEC File No.
333-23195 (the "Registration Statement") will be declared effective by the
Commission.
1.2 EXCHANGE OF SHARES. On the terms and subject to the satisfaction or
waiver of the conditions set forth herein, at the Closing, each of the
Suechtings shall transfer, convey and assign all of their respective TNT-CA
Shares to TNT-DE and shall receive in exchange therefor that number of newly
issued shares of TNT-DE Common Stock determined by multiplying the number of
TNT-CA Shares owned by each of them by 100.63723 (the "Exchange Ratio"),
rounding downward to the nearest whole share, and subtracting therefrom the
respective number of TNT-DE Pre-Exchange Shares owned by each of them. The
exchange of the TNT-CA Shares for shares of TNT-DE Common Stock pursuant to this
Agreement is hereinafter referred to as the "Exchange." The shares of TNT-DE
Common Stock to be issued by TNT-DE pursuant to the Exchange are hereinafter
collectively referred to as the "TNT-DE Shares."
1.3 DELIVERY OF SHARES AT CLOSING. At the Closing, the Trust shall
deliver to TNT-DE certificates evidencing the Trust Shares, BJS shall deliver to
TNT-DE certificates evidencing the BJS Shares and DS shall deliver to TNT-DE
certificates evidencing the DS Shares, each duly endorsed for transfer thereon
or by means of duly executed stock powers attached thereto against delivery by
TNT-DE of the respective number of TNT-DE Shares determined pursuant to Section
1.2 hereof.
1.4 TAX TREATMENT. The parties intend that the Exchange will qualify as a
tax-free exchange under Section 351 of the United States Internal Revenue Code
of 1986, as amended.
-2-
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SUECHTINGS
The Suechtings represent and warrant to TNT-DE as follows:
2.1 CAPACITY; AUTHORITY; ENFORCEABILITY.
(a) Each of BJS and DS has all requisite capacity to enter into this
Agreement and to consummate the transactions contemplated by this Agreement.
The Trustees are the sole trustees under the Trust and have all requisite power
and authority necessary to own and operate the Trust's properties, to carry on
the Trust's business as now conducted and presently proposed to be conducted and
to execute, deliver and perform its obligations under this Agreement and the
documents, instruments and certificates to be executed and delivered by the
Trustees pursuant to this Agreement.
(b) This Agreement constitutes the legal, valid and binding
obligation of each of BJS, DS and the Trust enforceable against each of them in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
2.2 STATUS OF TNT-CA SHARES. There are no voting trusts, stockholders
agreements, proxies or other similar agreements or understandings in effect with
respect to the voting or transfer of any of the TNT-CA Shares. The TNT-CA
Shares constitute all of the issued and outstanding capital stock of TNT-CA.
2.3 CONFLICTS, CONSENTS AND APPROVAL. Neither the execution and delivery
of this Agreement by any of the Suechtings nor the consummation of the
transactions contemplated hereby will violate, conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with the
giving of notice, the passage of time or otherwise, would constitute a default)
under, require any consent under, or entitle any party (with the giving of
notice, the passage of time or otherwise) to terminate, accelerate, modify or
call a default under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties of TNT-CA or the TNT-CA Shares
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, contract, undertaking, agreement, lease or
other instrument or obligation to which TNT-CA or the Suechtings or any of them
is a party, including, without limitation, the trust agreement or other
instruments governing the organization and operation of the Trust.
2.4 TITLE. Each of the Trust, BJS and DS is the sole owner of, and has,
or will have as of the Closing Date, good and marketable title to and possession
of, the Trust Shares, BJS Shares and DS Shares, respectively, free and clear of
any lien, claim, voting trust, proxy, arrangement, security interest, mortgage,
pledge, encumbrance, agreement, right or restriction (other than restrictions
related to the status of the TNT-Shares as "restricted
-3-
securities" for purposes of federal and state securities laws) of any kind
whatsoever (collectively, "Liens") and, upon consummation of the Exchange,
TNT-DE shall acquire good and marketable title to the TNT-CA Shares, free and
clear of any Liens.
2.5 INVESTMENT INTENT; RESTRICTED SECURITIES. The TNT-DE Shares to be
received by the each of the Suechtings pursuant to the Exchange will be acquired
for investment for each of the Trust's, BJS' and DS' own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof; PROVIDED, HOWEVER, that if the Registration Statement is declared
effective by the Commission, the Suechtings may sell such TNT-DE Shares pursuant
to the Registration Statement. Each of the Suechtings understands that the
TNT-DE Shares to be received hereunder may not be sold, transferred or otherwise
disposed of without registration under the Securities Act or an exemption
therefrom, and that if the Registration Statement is not declared effective or
in the absence of any other effective registration statement covering such
TNT-DE Shares or an available exemption from registration under the Securities
Act, the TNT-DE Shares must be held indefinitely. In particular, each of the
Suechtings is aware that the TNT-DE Shares may not be sold pursuant to Rule 144
promulgated under the Securities Act unless all of the conditions of Rule 144
are met.
2.6 LEGENDS. It is understood that the certificates evidencing the TNT-DE
Shares may bear one or all of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR ANOTHER APPLICABLE EXEMPTION."
(b) Any legend required by the laws of the State of California or
other jurisdiction.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TNT-DE AND TNT-CA
3.1 CORPORATE POWER AND AUTHORITY; ENFORCEABILITY.
(a) TNT-DE represents to the Suechtings that: (i) it has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement; (ii) the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of TNT-DE; and (iii) this Agreement has been
-4-
duly executed and delivered by TNT-DE and constitutes the legal, valid and
binding obligation of TNT-DE enforceable against it in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(b) TNT-CA represents to the Suechtings that: (i) it has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement to be performed by
it; (ii) the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of TNT-CA; and (iii) this Agreement has been duly
executed and delivered by TNT-CA and constitutes the legal, valid and binding
obligation of TNT-CA enforceable against it in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
3.2 CONFLICTS; CONSENTS; APPROVALS. TNT-DE represents to the Suechtings
that neither the execution and delivery of this Agreement by TNT-DE, nor the
consummation of the transactions contemplated hereby will violate, conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with the giving of notice, the passage of time or otherwise, would
constitute a default) under, require any consent under, or entitle any party
(with the giving of notice, the passage of time or otherwise) to terminate,
accelerate, modify or call a default under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the properties of
TNT-DE or the TNT-DE Shares under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license, contract,
undertaking, agreement, lease or other instrument or obligation to which TNT-DE
is a party.
3.3 TNT-DE SHARES. TNT-DE represents to the Suechtings that, when issued,
the TNT-DE Shares shall not be subject to any statutory or contractual
preemptive rights, and when received by the Suechtings in exchange for the
TNT-CA Shares, shall be duly authorized, validly issued, fully paid and
nonassessable.
ARTICLE 4
COVENANTS AND CONSENTS OF THE PARTIES
The parties hereto agree as follows with respect to the period from
and after the execution of this Agreement.
4.1 MUTUAL COVENANTS. Each of the parties shall use its reasonable best
efforts to take all action and to do all things necessary, proper or advisable
to consummate the
-5-
Exchange and the transactions contemplated by this Agreement and to prepare,
execute and deliver such further instruments and take or cause to be taken such
other and further action as any other party hereto shall reasonably request.
4.2 COVENANTS OF TNT-DE.
(a) ASSUMPTION OF 1996 STOCK OPTION PLAN. On or before the Closing,
the TNT-CA 1996 Stock Option Plan (the "Plan") shall be amended to substitute
TNT-DE as sponsor thereunder and TNT-DE shall assume and thereafter perform all
obligations of sponsor under the Plan. The options outstanding under the Plan
as of the Closing (the "Outstanding Options") shall be exercisable for that
number of shares, rounded down to the nearest whole number, of TNT-DE Common
Stock equal to the number of shares of TNT-CA Common Stock previously issuable
under such options multiplied by the Exchange Ratio, and the exercise price of
each Outstanding Option shall correspondingly be divided by the Exchange Ratio.
4.3 CONSENT OF TNT-CA TO ASSUMPTION OF PLAN. TNT-CA hereby consents to
the amendment, effective upon the Closing, of the Plan to substitute TNT-DE as
sponsor thereunder and to the amendments of the Outstanding Options described in
Section 4.2 hereof.
ARTICLE 5
CONDITIONS
5.1 MUTUAL CONDITIONS. The obligations of the parties hereto to
consummate the Exchange shall be subject to satisfaction or waiver on or prior
to the Closing Date of the following conditions:
(a) No temporary restraining order, preliminary or permanent
injunction or other order or decree which prevents the consummation of the
Exchange shall have been issued and remain in effect, and no statute, rule or
regulation shall have been enacted by any governmental authority which prevents
the consummation of the Exchange.
(b) All authorizations, consents and approvals (contractual or
otherwise) of any state, federal, local or foreign government agency, regulatory
body or official or any person (other than TNT-CA or TNT-DE) necessary for the
valid consummation of the Exchange in accordance with this Agreement shall have
been obtained and shall be in full force and effect.
(c) TNT-CA and the Suechtings shall have entered into the Agreement
for Distribution of Accumulated Adjustments Account and Tax Indemnification
pursuant to which the Board of Directors of TNT-CA shall have declared a
dividend to the TNT-CA shareholders of record as of a date prior to the Closing
Date in the aggregate amount of $6,400,000.
-6-
5.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TNT-DE. The obligations of
TNT-DE to consummate the Exchange and the transactions contemplated hereby shall
be subject to the satisfaction or waiver on or prior to the Closing Date of the
following additional conditions unless waived by TNT-DE:
(a) The representations and warranties of the Suechtings set forth in
Article 2 shall be true and correct in all material respects on the date hereof
and on and as of the Closing Date as though made on and as of the Closing Date.
(b) The Suechtings shall have performed in all material respects each
obligation and agreement and shall have complied in all material respects with
each covenant to be performed and complied with by them hereunder at or prior to
the Closing Date.
5.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF SUECHTINGS. The obligations
of the Suechtings to consummate the Exchange and the other transactions
contemplated hereby shall be subject to the satisfaction or waiver on or prior
to the Closing Date of the following additional conditions:
(a) The representations and warranties of TNT-DE and TNT-CA set forth
in Article 3 shall be true and correct in all material respects on the date
hereof and on and as of the Closing Date as though made on and as of the Closing
Date.
(b) TNT-DE shall have performed in all material respects each
obligation and agreement and shall have complied in all material respects with
each covenant to be performed and complied with by it hereunder at or prior to
the Closing Date.
ARTICLE 6
INDEMNIFICATION
6.1 INDEMNIFICATION BY SUECHTINGS. Each of the Suechtings agrees to
indemnify TNT-DE and its affiliates, directors, officers, shareholders, agents
and employees against and hold each of them harmless from any and all losses,
liabilities, claims, suits, proceedings, demands, judgments, damages, expenses
and costs, including, without limitation, counsel fees and disbursements, expert
fees and costs and expenses incurred in the investigation, defense or settlement
of any claims covered by this indemnity which any such indemnified party may
suffer or incur by reason of the inaccuracy of any representation or warranty of
the Suechtings to TNT-DE in Article 2 of this Agreement.
6.2 NOTICE AND RIGHT TO DEFEND THIRD-PARTY CLAIMS.
(a) Upon receipt of written notice of any claim, demand or assessment
or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought on account of the indemnity contained in Section 6.1,
the party seeking
-7-
indemnification (the "Indemnitee") shall promptly, but in no event later than
twenty (20) days prior to the date a response or answer thereto is due (unless a
response or answer is due within fewer than twenty (20) days from the date of
Indemnitee's receipt of notice thereof), inform the party against whom
indemnification is sought (the "Indemnitor") in writing thereof. The failure,
refusal or neglect of such Indemnitee to notify the Indemnitor within the time
period specified above of any such claim or action shall relieve such Indemnitor
from any liability which it may have to such Indemnitee in connection therewith,
but only to the extent the effect of such failure, refusal or neglect is to
prejudice materially the rights of the Indemnitor in defending against the claim
or action.
(b) In case any claim, demand or assessment shall be asserted or
suit, action or proceeding commenced against an Indemnitee, and such Indemnitee
shall have timely and properly notified the Indemnitor of the commencement
thereof, the Indemnitor will be entitled to participate therein, and, to the
extent that it may wish, to assume the defense, conduct or settlement thereof,
with counsel selected by the Indemnitor. After notice from the Indemnitor to
the Indemnitee of its election to assume the defense, conduct or settlement
thereof, the Indemnitor will not be liable to the Indemnitee for expenses
incurred by Indemnitee in connection with the defense, conduct or settlement
thereof, except for such expenses as may be reasonably required to enable the
Indemnitor to take over such defense, conduct or settlement.
(c) The Indemnitee will cooperate with the Indemnitor in connection
with any such claim, make personnel, witnesses, books and records relevant to
the claim available to the Indemnitor at no cost, and grant such authorizations
or powers of attorney to the agents, representatives and counsel of the
Indemnitor as the Indemnitor may reasonably request in connection with the
defense or settlement of any such claim.
(d) In the event that the Indemnitor does not wish to assume the
defense, conduct or settlement of any claim, demand or assessment, the
Indemnitee shall have the exclusive right to prosecute, defend, compromise,
settle or pay the claim in its sole discretion and pursue its rights under this
Agreement; provided that, before settling any claim hereunder, the Indemnitee
shall give five (5) business days' notice to the Indemnitor to allow the
Indemnitor to reject the settlement, in which case the Indemnitor shall defend
the claim.
(e) Notwithstanding the foregoing in this Section 6.2, the Indemnitee
shall have the right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be its fees and expenses unless (i) the Indemnitor has
agreed to pay such fees and expenses, (ii) the Indemnitor has failed to assume
the defense of such action, claim or proceeding or (iii) the named parties to
any such action, claim or proceeding (including any impleaded parties) include
both the Indemnitor and the Indemnitee and the Indemnitee has been advised by
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnitor (in which
case, if the Indemnitee informs the Indemnitor in writing that it elects to
employ separate counsel at the expense of the Indemnitor, the Indemnitor shall
not have the right to assume the defense of such action,
-8-
claim or proceeding on behalf of the Indemnitee, it being understood, however,
that the Indemnitor shall not, in connection with any one such action, claim or
proceeding or separate but substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the Indemnitee, which firm shall
be designated in writing by the Indemnitee).
ARTICLE 7
MISCELLANEOUS
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made herein by the parties hereto and any indemnification obligations
for breach thereof shall survive until the first anniversary of the Closing
Date, except that the representations and warranties set forth in Section 2.4
(title), 3.3 (TNT-DE Shares) and the related indemnification obligations for
breach thereof under Section 6.1 shall survive indefinitely.
7.2 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date by mutual consent of the Suechtings and TNT-DE.
7.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the Exchange and supersedes all prior and concurrent
arrangements, letters of intent or understandings relating to the Exchange.
7.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which when taken
together shall constitute one and the same agreement. This Agreement shall
become effective when one or more counterparts has been signed by each of the
parties and delivered to each of the parties.
7.5 HEADINGS. The article, section and paragraph headings in this
Agreement are intended principally for convenience and shall not, by themselves,
determine rights and obligations of the parties to this Agreement.
7.6 NO WAIVER. No waiver by any part of any condition, or the breach of
any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or breach of any other term or covenant contained in this Agreement.
7.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflicts of law.
-9-
7.8 AMENDMENT. This Agreement may be amended only by a writing executed
by all parties hereto.
7.9 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
7.10 EXPENSES. TNT-DE shall pay all costs and expenses associated with the
transactions contemplated by this Agreement except as provided in Article 6.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date first written above.
TRACK 'N TRAIL, INC., a Delaware
corporation
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
XXXXXXX X. XXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
President
XXXXX X. XXXXXXXXX, CO-TRUSTEE OF
THE XXXXXXXXX FAMILY TRUST
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
XXXXXXX XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
XXXXXX XXXXXXXXX, CO-TRUSTEE For purposes of Sections 3.1(b) and
OF THE XXXXXXXXX FAMILY TRUST 4.3 only:
TRACK 'N TRAIL, a California
/s/ Xxxxxx Xxxxxxxxx corporation
-----------------------------------
Xxxxxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
President
-10-
