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EXHIBIT 10.4
STOCK REDEMPTION AGREEMENT
AGREEMENT, made this ___ day of __________, 1997, by and between 800
TRAVEL SYSTEMS, INC., a Delaware corporation having offices at 0000 Xxxx
Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (the "Company") and XXXXXXX XXXXXX, an
individual residing at 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000
(the "Shareholder").
W I T N E S S E T H
WHEREAS, the Shareholder is currently the beneficial and record holder
of _________ shares of the Company's common stock, par value $_______ par share
and upon completion of the contemplated public offering of 1,800,000 shares of
the Company's Common Stock shall be entitled to receive an additional _____
shares (collectively, the "Shares); and
WHEREAS, the Company and the Shareholder mutually desire that the
Company redeem all, and not less than all, of the Shares on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and other good and valuable considerations hereinafter contained, the
parties hereto agree as follows:
1. Redemption and Redemption Price. Subject to the conditions set
forth in paragraph 4 of this Agreement, at the Closing (as hereinafter defined)
the Company shall redeem from the Shareholder all, but not less than all, of
the Shares at a redemption price (the "Redemption Price") equal to the initial
public offering price of the shares, currently anticipated to be $5.00, less
$1.25, so the currently anticipated purchase price is three dollars and
seventy-five cents ($3.75) per share.
2. Closing.
a. Date, Time and Place. Subject to the provisions of
paragraphs 4(a) and 5 of this Agreement, the closing of the redemption
contemplated by this Agreement (the "Closing") shall occur at 10:00 a.m. at the
offices of Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, 000 0xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, on a date to be mutually agreed upon by the parties which in
any event shall be no later than ten (10) business days after the closing of
the initial public offering of the Company's securities.
b. Deliveries. At the Closing: (i) the Shareholder shall
sell, transfer and deliver the Shares to the Company, surrender and deliver to
the Company all certificates representing the Shares or any portion of the
Shares, together with stock powers separate from certificates, duly endorsed in
blank by the Shareholder, and deliver to the Company the certificate required
by paragraph 4(d) hereof; and (ii) the Company shall pay to the Shareholder the
Redemption Price, in full, in lawful money of the United States of America, by
delivery of the Company's certified check in the amount of the Redemption Price
payable to the order of the Shareholder, or by wire transfer of the Redemption
Price in federal funds to such bank account as shall be designated
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by the Shareholder for such purpose, and shall deliver to the Shareholder the
certificate required by paragraph 4(c) hereof.
3. Representation and Warranties.
a. The Company represents and warrants to the Shareholder that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) The Company has full corporate power and authority
and has taken all corporate action necessary to authorize, execute and deliver
this Agreement and to consummate the transaction contemplated hereby; and this
Agreement has been duly executed and delivered by the Company and is a valid
and binding obligation of the Company enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency, moratorium and similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be brought;
(iii) Neither the execution and delivery of this
Agreement, nor the consummation of the transaction contemplated hereby, does or
will violate any provision of the Company's Certificate of Incorporation or By-
laws, or violate or result in the breach of any agreement or any federal or
state law, rule, regulation, judgment, decree or order of any governmental
authority or court to which the Company is subject or by which it is bound;
(iv) The capital of the Company is, and at the Closing
will be, in excess of the Redemption Price, and the payment of the Redemption
Price will not impair the Company's capital; and
(v) The Shares have been duly authorized and validly issued
to the Shareholder and are non-assessable.
b. The Shareholder represents and warrants to the Company that:
(i) He is the sole beneficial and record holder of the
Shares, and has not granted or sold any options or other rights to purchase any
of the Shares to any individual, person or entity, other than to the Company
under this Agreement;
(ii) The Shares are not subject to any liens or other
encumbrances, and at the Closing will be delivered free and clear of the same;
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(iii) Neither the execution and delivery of this
Agreement nor the consummation of the transaction contemplated hereby does or
will violate or result in the breach of any agreement or any federal or state
law, rule, regulation, judgment, order or decree of any governmental authority
or court to which the Shareholder is subject or by which he is bound;
(iv) This Agreement has been duly executed and delivered
by the Shareholder and is a valid and binding obligation of the Shareholder
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, moratorium and similar laws affecting the enforcement
of creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought; and
(v) The shares referred to in the Preamble hereto represent
all of the shares which the Shareholder is entitled to receive pursuant to the
various agreements between the Shareholder and the Company, and, subject to the
closing of the IPO as contemplated by the Company's registration statement
filed with the Securities and Exchange Commission on June __, 1997, and payment
for the Shares as contemplated hereby, the Shareholder hereby releases the
Company from any claims it has against the Company for any additional shares of
capital stock of the Company.
4. Conditions to Closing. The obligations of the parties to
consummate the transaction contemplated by this Agreement shall be subject to
satisfaction, on or before the Closing, of each of the following conditions,
unless waived in writing by the party to be so satisfied:
a. The initial public offering of the Company's securities
shall have been consummated and closed;
b. The representations and warranties of each of the Company
and the Shareholder contained herein shall be true and accurate in all material
respects as of the date when made and at and as of the Closing as though made
at and as of such date;
c. The Company shall have furnished to the Shareholder a
certificate of the Company's President to the effect that: (i) the initial
public offering referred to in subparagraph a of this paragraph 4 has been
consummated and closed with net proceeds to the Company as set forth in such
subparagraph a, and (ii) all representations and warranties of the Company
contained in this Agreement are true and accurate in all material respects at
and as of the Closing; and
d. The Shareholder shall have furnished to the Company his
certificate to the effect that all representations and warranties of the
Shareholder contained in this Agreement are true and accurate in all material
respects at and as of the Closing.
5. Termination. Anything contained in this Agreement to the
contrary notwithstanding, in the event the initial public offering described in
paragraph 4(a) has not been consummated and closed on or before September 30,
1997, then either party may, upon
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not less than two (2) weeks' prior written notice, terminate this Agreement.
6. Notices. Any notice given or required to be given pursuant to
this Agreement shall be in writing and shall be deemed given three (3) days
after being deposited in the U.S. Mail, first-class postage prepaid, addressed
to the parties at the respective address first above written or such other
address as may be established by written notice given in accordance with the
provisions of this paragraph 6.
7. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, supersedes
all prior such agreements whether written or oral, and may not be amended or
otherwise modified except by a subsequent written instrument duly executed by
the parties hereto.
b. No Waiver. No delay or failure by either party to exercise
any right hereunder, and no partial or single exercise of any such right, shall
constitute a waiver of that right or any other right, unless expressly waived
in writing.
c. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
d. Binding Effect. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
successors, representatives and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
800 TRAVEL SYSTEMS, INC.
By:___________________________
President
______________________________
XXXXXXX XXXXXX
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