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EXHIBIT 10.2.4
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MANAGEMENT STOCKHOLDERS AGREEMENT
THIS MANAGEMENT STOCKHOLDERS AGREEMENT (the "Agreement") is made and
entered into as of the 29th day of May, 1996, by and among the individuals
identified on Exhibit A hereto (the "Stockholders") and FM PRECISION GOLF CORP.,
a Delaware corporation (the "Company").
WHEREAS, the Stockholders are concurrently purchasing from the Company the
number of shares of the common stock of the Company as identified on Exhibit A
hereto (the "Shares"); and
WHEREAS, each of the Stockholders is currently employed by the Company or
one of its subsidiaries; and
WHEREAS, the Company and the Stockholders wish to formalize certain
agreements with respect to restrictions on transfer of the Shares and certain
other matters;
NOW THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. NO TRANSFER. The Stockholders shall not sell, assign, pledge,
encumber, or otherwise transfer, permit or suffer to exist any transfer of
(hereinafter called simply "transfer"), any legal or beneficial interest in the
Shares except as expressly provided in this Agreement. In addition to the
restrictions on transfer of the Shares contained in or resulting from other
provisions of this Agreement, no transfer of any Shares shall be made by or on
behalf of any Stockholder unless the Board of Directors of Company has
determined that such transfer is in compliance with the terms hereof and that
the applicable Shares have been duly registered under all applicable federal and
state securities laws pursuant to a then-effective registration which
contemplates the proposed transfer or unless the Company has received a written
opinion of or, at the option of the Company, satisfactory to its legal counsel
that the proposed transfer so complies with the terms hereof and is exempt from
such registration under all applicable federal and state securities laws.
Section 2. PERMITTED TRANSFEREES.
2.1. GENERAL. Any of the following transfers shall be in compliance
with this Agreement, subject to the provisions of Section 2.2:
(a) a transfer of Shares upon the death of a Stockholder to such
Stockholder's executors, administrators or testamentary trustees (the
"Stockholder's Estate"); or
(b) a transfer of Shares made as a gift in compliance with the
federal and all applicable state securities laws to the Stockholder's spouse or
parents or to children (including adopted children) of the Stockholder or his
spouse (collectively, "Family Members") or to a trust, the beneficiaries of
which include only the Stockholder and the Stockholder's Family Members, and
over which the Stockholder has the right, power and authority to exercise
control as to investment decisions and distributions, as trustee or otherwise,
or to a company or partnership,
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the stockholders or limited and general partners of which include only the
Stockholder and the Stockholder's Family Members. The Stockholder's Estate and
each Family Member, trust, company or partnership to whom Shares may be
transferred pursuant to this Section 2.1 are hereinafter sometimes referred to
as "Permitted Transferees."
2.2. RESTRICTION. No transfer pursuant to Section 2.1 shall be
permitted (and any such transfer shall be void and of no effect) unless and
until the applicable Permitted Transferee executes and delivers to the Company
one or more appropriate instruments, in form and substance reasonably
satisfactory to the Company, confirming and acknowledging that such Permitted
Transferee has acquired and will hold such Shares subject to all of the terms,
conditions and provisions of this Agreement. Upon the execution and delivery of
such instruments to the Company, the applicable Permitted Transferee shall be
deemed a "Stockholder" for purposes of this Agreement, with the same rights,
privileges, duties and obligations as the transferor of such Shares.
Notwithstanding anything to the contrary contained herein, no transfer to any
Permitted Transferee shall be made if, as a result thereof, the Company would be
required to register any Shares under any applicable federal or state securities
law.
Section 3. RIGHT OF FIRST REFUSAL.
3.1. POTENTIAL TRANSFER. If any Stockholder (an "Offering
Stockholder") wishes to transfer all, but only all, of the Shares then owned by
him (the "Transfer Shares") to any person other than a Permitted Transferee for
a purchase price to be paid in cash at the closing of such transfer and has
received a written offer to so purchase such Shares executed by the proposed
transferee, such Offering Stockholder shall give a written notice (the "Transfer
Notice") to the Company specifying the identity of the proposed transferee, the
amount per Share to be received (the "Transfer Price"), and any other terms and
conditions of the proposed transfer and including a photocopy of the executed
offer. Such Transfer Notice shall include an irrevocable offer (open to
acceptance for a period of 45 days after the date such Transfer Notice is given)
to sell the Transfer Shares to the Transfer Offerees (as defined in Section 3.6)
at the Transfer Price.
3.2. MANAGEMENT OFFEREES' OPTION. The Company shall, within 15 days of
the Transfer Notice, provide notice of receipt of the Transfer Notice (the
"Company's Notice") to (a) all Stockholders, other than the Offering Stockholder
(each such person, a "Management Offeree") and (b) each other person who then
owns any of the shares of common stock of the Company (each such person, a
"Non-Management Offeree"). Each Management Offeree shall have the option to
purchase, upon the terms set forth in the Transfer Notice, any or all of the
Transfer Shares. In order to exercise such option, a Management Offeree must
give notice of such exercise to the Company within 10 days after the date of the
Company's Notice, which exercise notice must include the maximum number of
Shares he agrees to purchase under the terms of the Transfer Notice (the
"Maximum Amount"). The Company shall, within 14 days after the date of the
Company's Notice, allocate to each Management Offeree for purchase a number of
Transfer Shares. Subject to adjustment, as follows, such allocation shall equal
the lesser of such Management Offeree's Pro Rata Share or Maximum Amount. If one
or more of the Management Offerees declines to participate in such purchase or
elects to purchase less than such Management Offeree's Pro Rata Share, then the
remaining Transfer Shares shall be allocated among Management Offerees who
specified a Maximum Amount in their respective notices of exercise in excess of
their Pro Rata Shares (with rounding to avoid fractional shares) in an amount
equal to the lesser of their Pro Rata Shares thereof or their Maximum Amounts.
Such
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procedure shall be employed until the entire Maximum Amount of each Management
Offeree has been satisfied or all Transfer Shares have been allocated.
3.3. COMPANY'S INITIAL OPTION. To the extent the Management Offerees
do not elect to purchase all of the Transfer Shares, the Company shall have the
right to purchase any or all Transfer Shares which the Management Offerees have
not elected to purchase; PROVIDED that the Company must determine the number of
such Transfer Shares it will purchase within 15 days after the giving of the
Company's Notice.
3.4. NON-MANAGEMENT OFFEREES' OPTION. Each Non-Management Offeree
shall have the option to purchase, upon the terms set forth in the Transfer
Notice, any or all of the Transfer Shares not allocated to the Management
Offerees or the Company pursuant to Sections 3.2 or 3.3. In order to exercise
such option, a Non-Management Offeree must give notice of such exercise to the
Company within 10 days after the date of the Company's Notice, which exercise
notice must include a designation of the Non-Management Offeree's Maximum
Amount. The Company shall, within 20 days after the date of the Company's
Notice, allocate to each Non-Management Offeree for purchase a number of such
remaining Transfer Shares. Subject to adjustment, as follows, such allocation
shall equal the lesser of such Non-Management Offeree's Pro Rata Share or
Maximum Amount. If one or more of the Non-Management Offerees declines to
participate in such purchase or elects to purchase less than such Non-Management
Offeree's Pro Rata Share, then any remaining non-allocated Transfer Shares shall
be allocated among Non-Management Offerees who specified a Maximum Amount in
their respective notices of exercise in excess of their Pro Rata Shares (with
rounding to avoid fractional shares) in an amount equal to the lesser of their
Pro Rata Shares thereof or their Maximum Amounts. Such procedure shall be
employed until the entire Maximum Amount of each Non-Management Offeree has been
satisfied or all remaining Transfer Shares have been allocated.
3.5. COMPANY'S FINAL OPTION. The Company shall have the right but not
the obligation to purchase any Transfer Shares remaining unallocated after the
allocations set forth above and may assign all or any portion of such right to
any third party selected by the Board of Directors of the Company (a "Third
Party Purchaser"); PROVIDED, that no transfer of Shares shall be made to a Third
Party Purchaser unless and until such Third Party Purchaser executes and
delivers to the Company one or more appropriate instruments, in form and
substance reasonably satisfactory to the Company, confirming and acknowledging
that it has acquired and will hold such Shares subject to all of the terms,
conditions and provisions of this Agreement. Upon the execution and delivery of
such instruments to the Company, such Third Party Purchaser shall be deemed a
"Stockholder" for purposes of this Agreement, with the same rights, privileges,
duties and obligations as the transferor of such Shares and a "Non-Management
Offeree".
3.6. NOTICE OF ACCEPTANCE. If the offer to sell included in any
Transfer Notice is accepted as to all the Transfer Shares by any Management
Offerees, the Company, any Non-Management Offerees or any Third Party Purchaser
(collectively, the "Transfer Offerees") the Company, on behalf of all such
accepting Transfer Offerees shall provide the Offering Stockholder and each
accepting Transfer Offeree with written notice of such acceptance specifying the
number of the Transfer Shares as to which each Transfer Offeree is accepting the
offer (a "Notice of Acceptance") within 45 days after the date of the Transfer
Notice.
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3.7. CLOSING. The closing of the purchase by the accepting Transfer
Offerees of the Transfer Shares pursuant to this Section 3 shall take place at
the principal offices of the Company on the 15th day after the Notice of
Acceptance is given. At such closing, the accepting Transfer Offerees shall
deliver a certified check or checks in the appropriate amount to the Offering
Stockholder against delivery of certificates duly endorsed in blank representing
the Transfer Shares so purchased. The Transfer Shares shall be delivered free
and clear of all liens, claims, charges, assessments, options, security
interests and other legal and equitable encumbrances.
3.8. REALLOCATION. If any Transfer Shares allocated to a Transfer
Offeree are not purchased by such Transfer Offeree at the closing provided for
in Section 3.7 (the "Default Shares"), such Default Shares may be purchased by
the Management Offerees, up to each such Management Offeree's Pro Rata Share
(with any Default Shares any such Management Offeree elects not to purchase
being reallocated among the remaining Management Offerees in accordance with
their Pro Rata Shares until no such Management Offeree wishes to purchase any
more Default Shares or all such Default Shares have been allocated), and if the
Management Offerees do not purchase all such Default Shares, any remaining
Default Shares may be purchased by the Company and, if the Company elects not to
purchase all of them, any remaining Default Shares may be purchased by the
Non-Management Offerees, up to each Non-Management Offeree's respective Pro Rata
Share (with any Default Shares any such Non-Management Offeree elects not to
purchase being reallocated among the remaining Non-Management Offerees in
accordance with their Pro Rata Shares until no such Non-Management Offeree
wishes to purchase any more Default Shares or all such Default Shares have been
allocated) and if the Non-Management Offerees elect not to purchase all of them,
the Third Party Purchaser may purchase such Shares. Nothing contained herein
shall prejudice any person's right to maintain any cause of action or pursue any
other remedies available to it as a result of such default.
3.9. FAILURE TO EXERCISE RIGHT. If the Company has not delivered a
Notice of Acceptance within 45 days after the date of the Transfer Notice, or if
the closing does not occur as provided in Sections 3.7 and 3.8, or if the
Transfer Offerees are not ready, willing and able to purchase all of the
Transfer Shares at such closing, then the Offering Stockholder shall, subject to
the provisions of Section 1 hereof, be permitted to transfer the Transfer Shares
to the proposed transferee identified in the Transfer Notice at a price not
lower than the Transfer Price and on terms no more favorable to the transferee
than those contained in the Transfer Notice; PROVIDED that any such transfer
shall occur within 90 days after the date of the Transfer Notice and that no
transfer of Shares shall be made to a proposed transferee that is not already a
Stockholder unless and until such proposed transferee executes and delivers to
the Company one or more appropriate instruments, in form and substance
reasonably satisfactory to the Company, confirming and acknowledging that such
proposed transferee has acquired and will hold such Shares subject to all the
terms, conditions and provisions of this Agreement. Upon the execution and
delivery of such instruments to the Company, such transferee shall be deemed a
"Stockholder" for purposes of this Agreement, with the same rights, privileges,
duties and obligations as the transferor of such Shares. Promptly after any
transfer pursuant to this Section 3.9, the Offering Stockholder shall notify the
Company of the consummation thereof and shall furnish such evidence of the
completion and time of completion of such transfer and of the terms thereof as
the Company may request. If, at the end of such 90 day period, the Offering
Stockholder has not completed the
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transfer of the Transfer Shares, he shall no longer be permitted to transfer
such Shares pursuant to this Section 3.9 without again complying with Section 3
in its entirety.
3.10. EXEMPTION. The rights and obligations set forth in this Section
3 shall not apply to a transfer of Shares pursuant to Section 2, 4 or 5 hereof.
3.11. PRO RATA SHARE. For purposes of this Section 3, as to any
person, the term "Pro Rata Share" shall mean the total number of Transfer Shares
available for allocation among a group of potential purchasers ("Potential
Purchasers") multiplied by a fraction in which the numerator is the number of
shares of the common stock of the Company owned by such person and the
denominator is the number of such shares owned by all of the Potential
Purchasers, as a group.
Section 4. SALES ON TERMINATION OF EMPLOYMENT.
4.1. COMPANY'S RIGHT TO REPURCHASE. Upon any Stockholder's ceasing for
any reason to be employed by the Company, whether due to the Stockholder's
death, Permanent Disability, Termination for Cause, Involuntary Termination,
Retirement or otherwise (as such, a "Terminated Stockholder" and such cessation
of employment a "Termination Event"), subject to the provisions of this Section
4, the Company may purchase, and the Terminated Stockholder and the Terminated
Stockholder's Permitted Transferees shall sell, all of the Shares owned by the
Terminated Stockholder and the Terminated Stockholder's Permitted Transferees on
the date of the occurrence of such Termination Event or acquired thereafter (the
"Termination Shares") at a price per Termination Share equal to the Termination
Price.
4.2. TERMINATION PRICE. As used in this Agreement, the term
"Termination Price" shall mean (a) in the event of the Terminated Stockholder's
death, Permanent Disability, Retirement or Involuntary Termination, the Fair
Market Value of the Termination Shares on the date of the Termination Event, (b)
in the event of the Terminated Stockholder's Termination for Cause arising from
the Terminated Stockholder's conviction for fraud, embezzlement or any felony
involving moral turpitude, the lower of the original purchase price or the Fair
Market Value of the Termination Shares on the date of the occurrence of the
Termination Event; and (c) in the event of the Terminated Stockholder's
Termination for Cause (other than as provided in Section 4.2(b)) or termination
for any other reason not otherwise provided for herein, (i) the Fair Market
Value of the Termination Shares that are "Protected Shares" on the date of the
occurrence of the Termination Event (with 20% of the Shares purchased
concurrently with the execution hereof becoming "Protected Shares" on each of
the first through the fifth anniversaries of the date hereof) and (ii) the lower
of the original purchase price or the Fair Market Value of the Termination
Shares that are not Protected Shares on the date of the occurrence of the
Termination Event.
4.3. EXERCISE OF RIGHT. The Company shall notify the Terminated
Stockholder whether it will or will not exercise its option to purchase as set
forth in Section 4.1 within 45 days of the Termination Event, after which such
option will lapse if not exercised.
4.4. CLOSING. The closing of any purchase by the Company of
Termination Shares (the "Termination Closing") pursuant to this Section 4 shall
take place at the principal offices of the Company on the date chosen by the
Company, which date shall not, except as
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otherwise provided in this Section 4, be more than 60 days after the occurrence
of the Termination Event. At the Termination Closing, the Company shall deliver
to the Terminated Stockholder and such Terminated Stockholder's Permitted
Transferees against delivery of duly endorsed certificates representing such
Termination Shares, free and clear of all encumbrances, a certified or bank
cashier's check or checks in the amount of the Termination Price.
Notwithstanding anything to the contrary contained in this Section 4.4, if, and
only if, and to the extent that the payment for Termination Shares with cash
would (a) violate any law, statute, order, writ, injunction, decree, rule,
regulation, policy or guideline promulgated, or judgment or order entered, by
any federal, state, local or foreign court or governmental authority applicable
to the Company or any of its subsidiaries, or (b) constitute or cause a breach
or default (immediately or with notice or lapse of time or both) of any loan,
credit or warrant agreement or debt instrument or warrant to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective assets is bound, the Company shall be
permitted to pay for the Termination Shares by delivery of a subordinated note
of the Company with a fixed interest rate equal to the interest rate the Company
is charged by its Bank at the time this current obligation comes into existence,
in the form annexed hereto as Exhibit B (a "Termination Note").
4.5. FAIR MARKET VALUE. The fair market value of Shares ("Fair Market
Value") shall be determined as follows:
4.5.1. If a public trading market for the Shares exists, the Fair
Market Value per Share shall be the average of the daily closing price for the
Shares for the 20 consecutive trading days prior to the date of determination of
the Fair Market Value of Shares, as reported on the primary national securities
exchange on which the Shares are listed or, if they are not so listed, in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System, Inc. ("NASDAQ"), or a comparable
inter-dealer quotation system, or if the Shares are not listed or quoted on
NASDAQ or a comparable inter-dealer quotation system, the average of the closing
bid and asking prices for the Shares for the 20 consecutive trading days prior
to the date of determination as furnished by two members of the National
Association of Securities Dealers, Inc. selected by the Board of Directors.
4.5.2. In the absence of any such quotations, or if no public
trading market for the Shares exists, the Board of Directors shall determine the
Fair Market Value in the exercise of its good faith judgment, or if the Board of
Directors is unable to determine the Fair Market Value of any Shares, or if at
least 100 Shares are in issue and the Terminated Stockholder or Permitted
Transferee whose Shares are being acquired at Fair Market Value disagrees with
the Board of Directors' determination of Fair Market Value by written notice
delivered to the Company within five business days after the Board of Directors'
determination thereof is communicated to the Terminated Stockholder or Permitted
Transferee, which notice specifies such person's determination of the Fair
Market Value of the Termination Shares, then the Company shall request its
auditors to select a nationally recognized appraisal, accounting or investment
banking firm which has not had a material relationship with the Company, the
Terminated Stockholder, the applicable Permitted Transferee or any of the other
Management Stockholders within the preceding two years, which shall determine
the Fair Market Value of such Shares. Such firm's determination of such Fair
Market Value shall be final, binding and conclusive on the Company, the
Terminated Stockholder and such Permitted Transferee. If the Board of Directors
is unable to determine the Fair Market Value, all costs and fees of such firm
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shall be borne by the Company. If the Terminated Stockholder or Permitted
Transferee disagreed with the Board of Directors' determination of such value,
the party whose determination of such value differed from the Fair Market Value
determined by such firm by the greatest amount shall bear all costs and fees of
such firm. To the extent that a Terminated Stockholder or Permitted Transferee
is required to bear such costs and fees, the Company may, at its option, itself
pay such costs and fees and offset the amount so paid against amounts otherwise
due and owing from Company or any of its affiliates to such person.
4.6. DEFINITIONS. For purposes of this Section 4, the following terms
shall be defined as follows:
4.6.1. "Permanent Disability" shall mean the inability of the
Terminated Stockholder to perform his duties and responsibilities to the Company
or any of its subsidiaries by reason of a physical or mental disability or
infirmity (a) for a continuous period of 90 days or (b) at such earlier time as
the Terminated Stockholder submits medical evidence satisfactory to the Company
that the Terminated Stockholder has a physical or mental disability or infirmity
that will likely prevent him from substantially performing his duties and
responsibilities for 90 days or longer. The date of such Permanent Disability
shall be on the last day of such 90 day period or the day on which the
Terminated Stockholder submits such evidence, as the case may be.
4.6.2. "Termination for Cause" shall mean the termination of the
employment of the Terminated Stockholder by action of the Company if the Company
delivers to the Terminated Stockholder within 15 business days after such
termination, a notice of termination for cause specifying in reasonable detail
the occurrence of one or more of the following events prior to the date on which
the Terminated Stockholder was removed:
(a) a judgment of conviction is entered against the Terminated
Stockholder for fraud, embezzlement or any felony involving moral
turpitude; or
(b) the Terminated Stockholder has (i) willfully and continuously
failed to perform his duties to the Company or any of its subsidiaries in
any material respect, or (ii) failed in any material respect to follow
specific directions of the Board of Directors in the performance of his
duties; or
(c) the Terminated Stockholder has demonstrated willful
misconduct in the performance of his duties to the Company or any of its
subsidiaries in any material respect.
4.6.3. "Involuntary Termination" shall mean the termination of
the employment of the Terminated Stockholder by action of the Company not
constituting Termination for Cause.
4.6.4. "Retirement" shall mean the automatic termination of the
employment of the Terminated Stockholder upon his reaching the mandatory
retirement age for employees of the Company as established by the Company from
time to time.
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Section 5. DRAG-ALONG. Anything contained herein to the contrary
notwithstanding, if the Board of Directors of the Company approves a transaction
pursuant to which a person or persons will acquire all of the shares of the
Common Stock of the Company or substantially all of the assets of the Company,
or, as the result of a merger or consolidation, all of the shares of the common
stock of the Company will be exchanged for equity in the resulting entity or any
other consideration, each of the Stockholders agrees to sell all of his Shares
to such person or to vote his Shares in favor of such sale, merger or
consolidation, upon the terms and conditions for the transaction approved by the
Board of Directors. The Company agrees that, as a condition precedent to the
consummation of such transaction, all Termination Notes plus accrued interest
shall be paid in full or purchased at face value.
Section 6. TRANSFERS TO COMPETITORS. Notwithstanding any other provision of
this Agreement, no Stockholder shall transfer any Shares to any person
determined by the Board of Directors of the Company to be engaged in any
activity or business in competition with any business currently or at the time
of the proposed transfer carried on by the Company or any of its affiliates.
Section 7. MISCELLANEOUS.
7.1. LEGENDS. The certificates evidencing the Shares shall bear the
following legends in conspicuous type:
THE TRANSFER OF THESE SHARES IS SUBJECT TO THE TERMS OF A
MANAGEMENT STOCKHOLDERS AGREEMENT AMONG THE COMPANY AND CERTAIN OF ITS
STOCKHOLDERS DATED __________, 1996. EXCEPT AS PROVIDED IN THE
MANAGEMENT STOCKHOLDERS AGREEMENT, THESE SHARES MAY NOT BE GIVEN,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED. THE COMPANY WILL
MAIL TO THE STOCKHOLDER A COPY OF SUCH AGREEMENT WITHOUT CHARGE WITHIN
FIVE DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR.
7.2. NO RIGHT OF EMPLOYMENT. Neither this Agreement nor any exercise
of any rights granted pursuant hereto shall create, or be construed or deemed to
create, any right of employment in favor of any Stockholder or any other person
by the Company or any of its subsidiaries.
7.3. RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this
Agreement shall apply, to the fullest extent set forth herein with respect to
the Shares, to any and all shares of capital stock of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) that may be issued in respect of, in exchange for, or in
substitution of, Shares and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof. Subject only to the provisions of the preceding
sentence, nothing contained in this Agreement shall prohibit or restrict the
Company from taking any corporate action, including, without limitation,
declaring any dividend (whether in cash or stock) or engaging in any corporate
transaction of any kind, including, without limitation, any merger,
consolidation, liquidation or sale of assets.
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7.4. AVAILABILITY OF EQUITABLE REMEDIES. The Stockholders and the
Company acknowledge that a breach of the provisions of this Agreement could not
be adequately compensated by money damages. Accordingly, any party hereto or
beneficiary hereof shall be entitled, in addition to any other right or remedy
available to it, to an injunction restraining such breach or threatened breach
and to specific performance of any such provision of this Agreement, and in
either case no bond or security shall be required in connection therewith.
7.5. WAIVER. No purported waiver by any party of any default by any
other party of any term or provision contained herein shall be deemed to be a
waiver of such term or provision unless the waiver is in writing and signed by
the waiving party. No such waiver shall in any event be deemed a waiver of any
subsequent default under the same or any other term or provision contained
herein.
7.6. ENTIRE AGREEMENT. This Agreement and the Exhibits attached hereto
set forth the entire understanding among the parties concerning the subject
matter of this Agreement and incorporate all prior negotiations and
understandings. There are no covenants, promises, agreements, conditions or
understandings, either oral or written, among them relating to the subject
matter of this Agreement other than those set forth herein. No representation or
warranty has been made by or on behalf of any party to this Agreement (or any
officer, director, employee or agent thereof) to induce any other party to enter
into this Agreement or to abide by or consummate any transactions contemplated
by any terms of this Agreement, except representations and warranties, if any,
expressly set forth herein. No alteration, amendment, change or addition to this
Agreement shall be binding upon any party unless in writing and signed by the
party to be charged.
7.7. NO PARTNERSHIP. Nothing contained in this Agreement shall be
deemed or construed by the parties hereto or by any third person to create the
relationship of principal and agent or of partnership or of joint venture.
7.8. SUCCESSORS. Each and all of the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto, and except
as otherwise specifically provided in this Agreement, their respective heirs,
legal representatives, successors and assigns, provided, however, that neither
this Agreement nor any rights herein granted may be assigned, transferred or
encumbered by any party.
7.9. NOTICES. Any consent, waiver, notice, demand, request or other
instrument required or permitted to be given under this Agreement shall be in
writing and be deemed to have been properly given when delivered in person or
sent by certified or registered United States mail, return receipt requested,
postage prepaid, addressed, if to any Stockholder, to his address set forth on
Exhibit A hereto; and
If to the Company:
FM Precision Golf Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn.: President
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with copies to:
Xxxxxxx X. Xxxxxx, Esq. Xxxxxxxxxxx X. Xxxxxxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000 0000 Xxxx Xxxx Xxxxx Xxxxx, Xxxxx 0
Xxxxxxxx, Xxxx 00000 Xxxxxxx, Xxxxxxx 00000
Any party may change its address for notices by notice in the manner set forth
above.
7.10. CAPTIONS. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of this
Agreement.
7.11. PARTIAL INVALIDITY. If any term or provision of this Agreement,
or the application thereof to any person, firm, corporation or circumstance,
shall be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons, firms, corporations or
circumstances other than those as to which it is held invalid, shall be
unaffected thereby and each term or provision of this Agreement shall be valid
and be enforced to the fullest extent permitted by law.
7.12. GOVERNING LAW. This Agreement shall be governed and construed by
the provisions hereof and in accordance with the laws of the State of Delaware
applicable to agreements to be performed in the State of Delaware.
7.13. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when executed by the parties hereto shall be deemed an original
and all of which together shall be deemed the same Agreement.
7.14. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement or the breach of any term or provision hereof, shall be
settled by arbitration in the City of Torrington, State of Connecticut, in
accordance with the Rules of the American Arbitration Association and judgment
upon the award rendered by the Arbitrator(s) may be entered in any Court having
jurisdiction thereof. The Arbitrator(s) sitting in any controversy shall have no
power to alter or modify any express provision of this Agreement, or to make any
award which by the terms effects any such alteration or modification.
The parties hereto have caused this Agreement to be executed as of the day
and year first above written.
FM PRECISION GOLF CORP.
By: /S/ Xxxxxxxxxxx X. Xxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxx, President
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"STOCKHOLDERS"
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxx
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Xxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
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EXHIBIT A
STOCKHOLDER ADDRESS SHARES OWNED
Xxxxxx X. Xxxxxxxx 000 Xxx Xxx Xxxx 00
Xxxxxxxxxx XX 00000
Xxxxxx X. Xxxxx 000 Xxxxx Xxxxxx 00
Xxxxxxxxxx XX 00000
Xxxxxxxx X. Xxxxx 00 Xxxxxx Xxxxx 00
Xxxxxx XX 00000
Xxxxx X. Xxxxxxxx 00 Xxx Xxxxx 00
Xxxxxxxxxxx XX 00000
Xxxx Xxxxx 0000 Xxxxxxxx Xxxx 00
Xxxxx Xxxxx Xxxxx XX 00000
Xxxxxxx X. Xxxxxxxx 00 Xxxx Xxxxx Xxxx 00
Xxxxxxxxxx XX 00000
Xxxxxxx X. Xxxxxxxxxx 0000 XX Xxxxxxxx Xxxx 00
Xxxxxxxx XX 00000
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XXXXXXX X
XXXXXXXXXXX XXXX
Xxxxxxx, Xxxxxxxx
$_______________________ ___________________________ , 1996
Pursuant to the provisions of that certain Management Stockholders
Agreement dated ___________________, 1996 (the "Agreement") between FM PRECISION
GOLF CORP., a Delaware corporation ("Company"), and certain of its stockholders
including ____________________________ ("Stockholder"), Company hereby promises
to pay to Stockholder the principal amount of
_________________________________________ ($_______________), with interest at
_____% per annum accruing from the date hereof.
Section 1. PAYMENTS OF INTEREST AND PRINCIPAL. The interest accrued on this
Note and the principal balance of this Note shall be payable in four annual
installments, each consisting of one quarter of the principal balance plus any
accrued interest, on the first, second, third, and fourth anniversaries of the
date hereof (the "Payment Dates"). Notwithstanding the foregoing, if, on any
Payment Date, the making of any payment otherwise due hereunder would (x)
violate any law, statute, order, writ, injunction, decree, rule, regulation,
policy or guideline promulgated, or judgment or order entered, by any federal,
state, local or foreign court or governmental authority applicable to the
Company or any of its subsidiaries, or (y) constitute or cause a breach or
default (immediately or with notice or lapse of time or both) of any loan,
credit or warrant agreement or debt instrument or warrant to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective assets is bound, then, with regard to
that portion of the payment due causing the violation, breach or default, the
Payment Date shall be postponed until such time that such payment would not
cause such violation, breach or default.
Section 2. PREPAYMENT. The Company shall have the right, at any time and
from time to time, to prepay this Note in whole or in part without premium or
penalty.
Section 3. PLACE OF PAYMENT, ENDORSEMENT AND ALLOCATION. All payments
hereunder shall be made to the Stockholder at Stockholder's address set forth in
Section 7 or at such other address as the Stockholder may from time to time
designate.
Section 4. DEFAULT. The following shall be events of default under this
Note: (a) default in the payment of any installment of principal or interest
when due hereunder, taking into account the postponement of due dates provided
for in Section 1, and failure by the Company to cure the same within 15 days of
the Company's receipt of written notice thereof from the Stockholder; or (b) if
Company (i) makes an assignment for the benefit of, or enters into any
composition or arrangement with, creditors, (ii) becomes a debtor in a
proceeding under Title 11 of the United States Code, (iii) dissolves, (iv)
generally does not pay its debts as such debts become due, or (v) conceals,
removes, or transfers any part of its property with intent to hinder, delay or
defraud its creditors or makes or suffers a transfer of any of its property
which is fraudulent under any bankruptcy, fraudulent conveyance or similar law.
Upon the occurrence of
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any event of default, the Stockholder may, at its option, forthwith accelerate
the maturity hereof by notice to the Company, and the obligation evidenced
hereby shall thereupon be immediately due and payable.
Section 5. OFFSET. Company may offset against any amounts otherwise due
hereunder any and all amounts due from Stockholder or any affiliate of
Stockholder to Company or any affiliate of Company from time to time, whether
pursuant to the Agreement or otherwise.
Section 6. GOVERNING LAW. This Note shall be governed and construed by the
provisions hereof and in accordance with the laws of the State of Delaware
applicable to promissory notes to be performed in the State of Delaware.
Section 7. NOTICES. Any consent, waiver, notice, demand, request or other
instrument required or permitted to be given under this Note shall be in writing
and be deemed to have been properly given only when delivered in person or sent
by (a) national prepaid overnight delivery service, or (b) telecopy or other
facsimile transmission (followed with hard copy sent by national prepaid
overnight delivery service), or four business days after being sent by certified
or registered United States mail, return receipt requested, postage prepaid,
addressed:
If to Stockholder:
*[*Insert Stockholder's Name Here*]*
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Telephone:__________________________
If to Company:
FM Precision Golf Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn.: President
Telephone: (000) 000-0000
Notice of change of address will be effective only upon receipt.
Section 8. SATURDAYS, SUNDAYS AND HOLIDAYS. Where this Note authorizes or
requires the payment of money or the performance of a condition or obligation on
a Saturday, Sunday or a public holiday, or authorizes or requires the payment of
money or the performance of a condition or obligation within or before or after
a period of time computed from a certain day, and such period of time ends on a
Saturday, Sunday or a public holiday, such payment may be made or condition or
obligation performed on the next succeeding business day, and if the period ends
at a specified hour, such payment may be made or condition performed at or
before the same hour of such next succeeding business day with the same force
and effect as if made or performed in accordance with the terms of this Note.
The Company has executed this Note as of the date first above written.
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FM PRECISION GOLF CORP.
By:_____________________________________
Name:___________________________________
Title:__________________________________
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