EXHIBIT 8(a)-3
XXX XXXXXX LTD.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this ___ day of _______, 1998 by
and between XXX XXXXXX LTD., a New York corporation (hereinafter referred to as
"Employer"), a wholly-owned subsidiary of Diplomat Corporation, a Delaware
corporation ("Parent") and XXXXXXXXX XXXXX, (hereinafter referred to as
"Employee");
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as Senior Vice
President of Merchandising; and
WHEREAS, Employee is willing to be employed as Senior Vice
President of Merchandising in the manner provided for herein, and to perform the
duties of Senior Vice President of Merchandising of Employer upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein set forth it is agreed as follows:
1. Employment of Employee. Employer hereby employs Employee
as Senior Vice President of Merchandising.
2. Term. The term of this Agreement shall commence on the
execution hereof (the "Commencement Date") and expire three (3) years from such
date (which, with renewals, if any, the "Term"). Each 12 month period from the
Commencement Date forward during the Term shall be referred to as an "Annual
Period." After three years from the Commencement Date, this Agreement shall
automatically renew annually unless either Employer or Employee gives notice not
to renew at least one hundred eighty (180) days prior to the end of the
applicable annual period. During the Term, Employee shall devote substantially
all of her business time and efforts to Employer and its subsidiaries and
affiliates.
3. Duties. Employee hereby agrees that, throughout the period
of her employment hereunder, she shall devote her business time, attention,
knowledge and skills, diligently in furtherance of the business of Employer,
shall perform the duties assigned to her by the Board of Directors of Employer
(the "Board") consistent with her executive position at Xxx Xxxxxx, Ltd.
immediately prior to the date hereof, and shall observe and carry out such rules
and regulations, policies and directions as Employer may from time to time
establish. During the term of this Agreement, Employee shall do such traveling
as may be reasonably required of her in the performance of her duties on behalf
of Employer consistent with travel during periods prior to the
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date hereof. Employee shall be available to confer and consult with and advise
the officers and directors of Employer at such times during business hours that
may be reasonably required by Employer. Employee shall report directly and
solely to the President of Employer.
4. Compensation.
(a) Employee shall be paid a minimum of $172,500 for
each Annual Period such amount to be increased, if Parent is profitable for the
fiscal year ending September 30, 1998, in an amount determined by the majority
of the noninterested members of the Board excluding Employee Board of Directors
at the Board's discretion. Employee shall be paid periodically in accordance
with the policies of the Employer during the term of this Agreement, but not
less frequently than monthly. Employee is eligible for an annual bonus, if any,
which will be determined and paid in accordance with policies set from time to
time by the Board in addition to amounts received from the Total Bonus Pool
pursuant to Section 10 hereof.
(b) Employee shall be entitled to participate in and
receive the benefits of all pension, profit-sharing, deferred compensation,
retirement, hospitalization, insurance, medical or dental or other benefit plan
or arrangement generally available to executive employees of Parent or Employer
as may now or hereafter exist; provided that Employer shall provide Employee
medical benefits consistent with Xxx Xxxxxx Ltd.'s former policies. Employee
shall also be entitled to participate in or receive all other benefits and
perquisites generally available to senior executives of Employer or Parent that
may be in effect from time to time during the Employee's employment hereunder.
Employer shall be under no obligation to institute or continue the existence of
any such employee plan, benefit or perquisite. Parent shall consider adopting a
deferred compensation/retirement benefits plan, in which, upon adoption,
Employee shall be permitted to participate.
5. Expenses. Employer shall reimburse Employee, promptly upon
presentation of receipts or vouchers thereof, for all expenses reasonably
incurred by her in connection with the performance of her duties hereunder and
the business of Employer, in accordance with policies of Employer from time to
time in effect. Until expiration of the current automobile lease, Employer shall
furnish Employee a standard size automobile or minivan automobile for so long as
Employee shall remain in the employ of Employer for her exclusive use in
connection with the business of Employer by paying the existing lease payments,
insurance and all costs incident to the maintenance and operation of such
automobile. After the current lease expires, Employee will be entitled to an
automobile procedurally consistent with Parent's policies. Employer shall pay
lease payments, insurance and maintenance not to exceed $8,000 per Annual
Period.
6. Vacation. Employee shall be entitled to receive three (3)
weeks paid vacation time after each year of employment upon dates agreed upon by
Employer. Upon separation of employment, for any reason, vacation time accrued
and not used shall be paid at the salary rate of Employee in effect at the time
of employment separation.
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7. Employee's Representations. Employee is free to enter into
this Employment Agreement and to perform each of the provisions contained
herein. Employee represents and warrants that Employee is not restricted or
prohibited, contractually or otherwise, from entering into and performing this
Employment Agreement, and that Employee's execution and performance of this
Employment Agreement is not a violation or breach of any agreement between
Employee and any other person or entity.
8. Nondisclosure of Confidential Information; Ownership of
Intellectual Property Rights; Non Competition; Covenant Not to Compete.
(a) Nondisclosure of Confidential Information. During
the term of this Employment Agreement and at all times thereafter, Employee will
keep confidential and will not directly or indirectly divulge to anyone nor use
or otherwise appropriate for Employee's own benefit, or on behalf of any other
person, firm, partnership or corporation by whom Employee might subsequently be
employed or otherwise associated or affiliated with, any Confidential
Information (as defined herein). For this purpose, "Confidential Information"
means any and all trade secrets or other confidential information of any kind,
nature or description relating to the business of Employer, provided that such
information is not and does not in the future become known or available to third
parties or general economic trade information known to the industry generally,
both of which does not arise as a result of a disclosure by Employee or her
agents.
(b) Employer Materials. All reports and analysis,
designs, drawings, contracts, contractual arrangements, specifications, computer
software, computer hardware and other equipment, computer printouts, computer
disks, documents, memoranda, notebooks, correspondence, files, lists and other
records, and the like, and all photocopies or other reproductions thereof,
relating to the business of Employer which Employee shall prepare, use,
construct, observe, possess or control, except Employee copies of all such
documents which pertain to Employee ("Employee Materials"), shall be and remain
the sole property of Employer. Upon termination of this Employment Agreement,
Employee shall deliver promptly to Employer all such Employer Materials.
(c) Certain Restrictions on Business Activities. During
the term of this Employment Agreement, Employee agrees that:
(i) Business Activities. She will not, directly
or indirectly, own an interest in, operate, join, control or participate in, or
be connected as an officer, employee, agent, independent contractor, partner,
shareholder or principal of any corporation, partnership, proprietorship, firm,
association, person or other entity providing services and/or products or a
combination thereof which directly or indirectly compete with Employer's
business, and she will not undertake planning for or organization of any
business activity directly competitive with Employer's business, except for the
period after notice of non-renewal of Employee's employment, or combine or
conspire with other employees or representatives of Employer's business for the
purpose of
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organizing any such competitive business activity, except the purchase of less
than four percent (4%) of the stock of a publicly traded company which is not
affiliated with Employer.
(ii) Solicitation of Employees, Etc. During the
form of this Agreement and six (6) months thereafter, she will not, directly or
indirectly or by action in concert with others, induce or influence (or seek to
induce or influence) any person who is engaged (as an employee, agent,
independent contractor or otherwise) by Employer to terminate his or her
employment or engagement.
(d) Covenant Not to Compete. Employee covenants and
agrees that, if Employee's employment with Employer is terminated other than by
Employer without Cause (as defined herein) at any time, for a period of six (6)
months after the date of such termination, Employee will not engage or be
engaged, in any capacity, directly or indirectly, including but not limited as
employee, agent, consultant, manager, executive, owner or stockholder (except as
a passive investor holding less than a four percent (4%) equity interest in any
enterprise the securities of which are publicly traded) in any business entity
doing business in the United States engaged in direct competition with the
business conducted by Employer on the date of termination. This Covenant Not to
Compete shall survive the termination or expiration of the other provisions of
this Employment Agreement. If any court determines that this Covenant Not to
Compete, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
(e) Severability. Employee agrees, in the event that
any provision of this Section 8 or any word, phrase, clause, sentence or other
portion thereof shall be held to be unenforceable or invalid for any reason,
such provision or portion thereof shall be modified or deleted in such a manner
so as to make this Section 8 as modified legal and enforceable to the fullest
extent permitted under applicable laws. The validity and enforceability of the
remaining provisions or portions thereof shall not be affected thereby and shall
remain valid and enforceable to the fullest extent permitted under applicable
laws. A waiver of any breach of the provisions of this Section 8 shall not be
construed as a waiver of any subsequent breach of the same or any other
provision.
9. Termination.
(a) Termination by Employer.
(i) Employer may terminate this Agreement upon
written notice for Cause. For purposes hereof, "Cause" shall mean (A) engaging
by the Employee in conduct that constitutes activity in direct competition with
Employer's businesses; (B) the conviction of Employee for the commission of a
felony; (C) the habitual abuse of alcohol or controlled substances; (D)
deliberate actions taken by Employee to the material detriment of Employer;
and/or (E) material breach of this Agreement. Notwithstanding anything to the
contrary in this Section 9(a)(i), Employer may not terminate Employee's
employment under this Agreement for Cause unless Employee shall
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have first received notice from the Board advising Employee of the specific acts
or omissions alleged to constitute Cause, and such acts or omissions continue
after Employee shall have had a reasonable opportunity (at least 20 days from
the date Employee receives the notice from the Board) to correct the acts or
omissions so complained of.
(ii) In the event that during the term of her
employment with Employer, Employee shall become Disabled (as that term is
defined herein), Employer may terminate this Agreement and Employee's employment
hereunder at any time upon 10 days' written notice to Employee and Employee
shall be entitled to receive disability payments during the succeeding 12-month
period at a rate equal to one-half of the rate of the base salary as provided in
Section 4(a) to which she was theretofore entitled, payable in equal
installments no less frequently than monthly. For the purposes of this
Agreement, Employee shall be deemed to have become Disabled when by reason of
his physical or mental incapacity, Employee shall not perform his duties
hereunder for a period of four consecutive months or for an aggregate of 120
days in any consecutive period of six months. Any proceeds of disability
insurance policies or plans maintained by Employer, in addition to the
contributory state mandated minimum coverage policy, for the benefit of Employee
shall be paid to Employee and shall reduce on a dollar for dollar basis the
obligations of Employer under this Section 9.
(iii) This Employment Agreement and Employer's
obligations hereunder shall terminate upon Employee's death. Upon termination
for death, Employer shall continue to pay the compensation payments pursuant to
Section 4(a) to the surviving spouse of Employee (or if there is none to
Employee's estate) for the succeeding six (6) months.
(b) Termination by Employee. Employee shall have the
right to terminate her employment under this Agreement upon 30 days' notice to
Employer given within 90 days following the occurrence of any of the following
events:
(A) Employer acts to materially reduce
Employee's duties and responsibilities hereunder.
(B) A reduction in Employee's rate of base
compensation, the failure to pay Employee a bonus due under Section 10 hereof,
or material reduction Employee's other benefits; or
(C) A material breach of this Agreement by
Employer, which is not cured within thirty (30) days of written notice of such
breach by Employer.
If Employer shall terminate Employee's employment other than due to his death or
disability or for Cause (as defined in Section 9(a)(i) of this Agreement), or if
Employee shall terminate this Agreement under Section 9(b), Employee shall
continue to be entitled to receive all amounts provided for by Section 4 and all
additional employee benefits under Section 4 regardless of the
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amount of compensation he may earn with respect to any other employment she may
obtain for the remainder of the Term as it may be extended from time to time.
10. Bonus. Each of Employee, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx
(collectively the "Total Bonus Pool Participants") shall be entitled to a
portion of an amount equal to ten percent (10%) of Employer's earnings before
income taxes up to a maximum of $150,000 per Annual Period ("Total Bonus Pool").
The allocation of the Total Bonus Pool to each Total Bonus Pool Participant
shall be as follows: Employee - 20%; Xxxxxx Xxxxxx - 40%; Xxxxxx Xxxxxx - 40%.
The Total Bonus Pool shall be payable within 90 days after the end of Employer's
fiscal year commencing with the fiscal year ended September 30, 1998. So long as
any Total Bonus Pool Participant is an employee of Employer, the full amount of
the Total Bonus Pool shall be dispersed to the Total Bonus Pool Participants
annually.
11. Excise Tax. In the event that any payment or benefit
received or to be received by Employee in connection with a termination of his
employment with Employer would constitute a "parachute payment" within the
meaning of Code Section 280G or any similar or successor provision to 280G
and/or would be subject to any excise tax imposed by Code Section 4999 or any
similar or successor provision then Employer shall assume all liability for the
payment of any such tax and Employer shall immediately reimburse Employee on a
"grossed-up" basis for any income taxes attributable to Employee by reason of
such Employer payment and reimbursements.
12. Arbitration. Any controversies between Employer and
Employee involving the construction or application of any of the terms,
provisions or conditions of this Agreement, save and except for any breaches
arising out of Sections 7 and 8 hereof, shall on the written request of either
party served on the other be submitted to arbitration. Such arbitration shall
comply with and be governed by the rules of the American Arbitration
Association. An arbitration demand must be made within one (1) year of the date
on which the party demanding arbitration first had notice of the existence of
the claim to be arbitrated, or the right to arbitration along with such claim
shall be considered to have been waived. An arbitrator shall be selected
according to the procedures of the American Arbitration Association. The cost of
arbitration shall be born by the losing party or in such proportions as the
arbitrator shall decide. The arbitrator shall have no authority to add to,
subtract from or otherwise modify the provisions of this Agreement, or to award
punitive damages to either party.
13. Attorneys' Fees and Costs. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which he may be
entitled.
14. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
herein and supersedes, effective as of the date hereof any prior agreement or
understanding between Employer and Employee with respect to
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Employee's employment by Employer. The unenforceability of any provision of this
Agreement shall not effect the enforceability of any other provision. This
Agreement may not be amended except by an agreement in writing signed by the
Employee and the Employer, or any waiver, change, discharge or modification as
sought. Waiver of or failure to exercise any rights provided by this Agreement
and in any respect shall not be deemed a waiver of any further or future rights.
15. Assignment. This Agreement shall not be assigned to other
parties.
16. Governing Law. This Agreement and all the amendments hereof,
and waivers and consents with respect thereto shall be governed by the internal
laws of the State of New York.
17. Notices. All notices, responses, demands or other
communications under this Agreement shall be in writing and shall be deemed to
have been given when (a) delivered by hand; (b) sent be telex or telefax, (with
receipt confirmed), provided that a copy is mailed by registered or certified
mail, return receipt requested; or (c) received by the addressee as sent be
express delivery service (receipt requested) in each case to the appropriate
addresses, telex numbers and telefax numbers as the party may designate to
itself by notice to the other parties:
(i) if to the Employer:
Diplomat Corporation
00 Xxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telefax: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Gersten, Savage, Xxxxxxxxx & Xxxxxxxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Telefax: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to the Employee:
Xxxxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Telefax:
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Telephone:
With a copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telefax: (000) 000-0000
Telephone: (000) 000-0000
18. Severability of Agreement. Should any part of this
Agreement for any reason be declared invalid by a court of competent
jurisdiction, such decision shall not affect the validity of any remaining
portion, which remaining provisions shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remaining portions of this Agreement without including any such
part, parts or portions which may, for any reason, be hereafter declared
invalid.
19. Guarantee. In order to induce Employee to execute and
deliver this Agreement, Parent hereby irrevocably and unconditionally guarantees
the full, prompt and complete performance of each and every obligation and
liability of Employer under this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the day and year first above written.
XXX XXXXXX LTD.
By:__________________________________
Xxxxxxxx Xxxxxxxxx, Vice President
__________________________________
Xxxxxxxxx Xxxxx
AS TO SECTION 19
DIPLOMAT CORPORATION
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By:_______________________________
Xxxxxxxx Xxxxxxxxx, President
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EXHIBIT 8(b)
REGISTRATION RIGHTS AND TRANSFER AGREEMENT
THIS REGISTRATION RIGHTS AND TRANSFER AGREEMENT, dated as of
________, 1998 by and between DIPLOMAT CORPORATION, a Delaware corporation (the
"Company"), and Xxxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxx (individually a
"Holder", and together with the holders of other Registrable Securities
hereinafter described, the "Holders").
WHEREAS, pursuant to the Agreement and Plan of Merger ("Merger
Agreement") effective simultaneously herewith, the Company has issued to the
Holders, exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), shares of Series D Preferred Stock
("Preferred Stock") which are convertible into shares of the Company's common
stock, $.0001 par value (the "Common Stock") and Additional Common Stock (as
defined in the Merger Agreement);
WHEREAS, pursuant to the terms of and in order to induce the
Holders to enter into the Agreement and Plan of Merger, the Company and the
Holders have agreed to enter into this Agreement; and
WHEREAS, it is intended by the Company and the Holders that this
Agreement shall become effective immediately upon the acquisition by the Holder
of the Preferred Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Agreement and Plan of Merger, the Company
and the Holder hereby agree as follows:
1. Registration Rights.
(a) Definitions. As used herein, the following terms
have the following meanings.
(i) "Register", "registered" and
"registration" shall refer to a registration effected by filing a registration
statement in compliance with the 1933 Act and the declaration or ordering by the
Commission of the effectiveness of such registration statement.
(ii) "Registrable Securities" shall mean (i) (A)
all shares of Common Stock issuable upon conversion of the Preferred Stock and
(B) the Additional Common Stock and (ii) any shares of Common Stock of the
Company issued as a dividend or other distribution with respect to, exchange for
or in replacement of, the shares of Common Stock, referenced in (i) above,
excluding in all cases, however, any Registrable Securities held by a person to
whom registration rights have not been transferred pursuant to the provisions of
Section 6.
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(b) Required Registration.
(i) The Company shall file a registration
statement as soon as practicable upon execution of the Agreement and Plan of
Merger and shall effect promptly the registration of [pro rata share of 666,667
or 444,444] shares of the Registrable Securities, such shares to be allocated
among the Holders in accordance with the Allocation Formula (defined below). If
all of the Registrable Securities have not yet been sold by the Holders and the
Company registers less than all of the Registrable Securities under this Section
1(b)(i), then the shares of Registrable Securities to be registered shall be
allocated among the Holders as follows (the "Allocation Formula"): (i) the first
222,222 shares of Registrable Securities shall be allocated to Xxxxxx Xxxxxx;
(ii) the next 100,000 shares of Registrable Securities shall be allocated 66.67%
to Xxxxxx Xxxxxx and 33.33% to Xxxxxxxxx Xxxxx; (iii) the next 122,222 shares of
Registrable Securities shall be allocated 75% to Xxxxxx Xxxxxx; 16.67% to Xxxxxx
Xxxxxx and 8.33% to Xxxxxxxxx Xxxxx; and (iv) any remaining shares of
Registrable Securities shall be allocated to the Holders in proportion to the
Registrable Securities requested to be registered by each such Holder. In the
event that a Holder does not request that his or her Registrable Securities be
included in a registration statement, then the securities allocable to such
Holder shall be allocated to the other Holders in accordance with the Allocation
Formula.
(ii) The amount of Registrable Securities sold by
the Holders under this Section 1(b) for any month shall not exceed 75,000 in the
aggregate, allocated among the Holders in accordance with the Allocation Formula
or as the Holders may agree. Each Holder shall give the Company fifteen trading
days' prior written notice of any sale of Registrable Securities under this
Section 1(b)(ii). The Company or its assignee(s), shall have the right to call
50% of the Registrable Securities to be sold by a Holder under this Section
1(b)(ii) at 75% of the fair market value of the shares. For purposes of this
paragraph, fair market value shall mean the average closing price of the
Company's common stock for the three trading days immediately prior to the date
of the Holder's notice above. The closing of the purchase of the shares upon
exercise of a call shall be five business days after notice of exercise such
call.
(iii) At any time from the date hereof to the
earlier of (A) ______________, 1998 [90 days from the date of the Agreement and
Plan of Merger] or (B) five business days after the effective date of the
registration statement described in this Section 1(b), assuming in both cases
that the transaction contemplated in the Agreement and Plan of Merger has closed
prior thereto, the Company, or its assignee(s) shall have the right to call the
[pro rata share of 666,667 or 444,444] shares registered under this Section 1(b)
at the price of the greater of (A) 75% of the fair market value of the shares or
(B) $3.00 per share. For purposes of this paragraph, fair market value shall
mean the average closing price of the Company's common stock for the three
trading days immediately prior to the notice exercising the call. The closing of
the purchase of the shares upon exercise of the call shall be five business days
after notice of exercise of the call.
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(c) "Piggyback" Registration. If at any time after the
date hereof, the Company proposes to register any of its securities other than
in connection with a merger or pursuant to Form S-8 or other comparable form,
the Company shall request that the managing underwriter (if any) of such
underwritten offering include the Registrable Securities. If such managing
underwriter agrees to include the Registrable Securities in the underwritten
offering, the Company shall at such time give prompt written notice to all
Holders of its intention to effect such registration and of such Holders' right
under such proposed registration, and upon the request of any such Holder
delivered to the Company within twenty (20) days after giving such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder and the intended method of disposition thereof), the Company shall
include such Registrable Securities held by such Holder requested to be included
in such registration; provided, however, that:
(i) If, at any time after giving such written
notice of the Company's intention to register any of the Holders' Registrable
Securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay the registration of such Registrable Securities, at
its sole election, the Company may give written notice of such determination to
each Holder and thereupon shall be relieved of its obligation to register any
Registrable Securities issued or issuable in connection with such registration
(but not from its obligation to pay registration expenses in connection
therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account.
(ii) If the managing underwriter in such
underwritten offering shall advise the Company that it declines to include a
portion or all of the Registrable Securities requested by the Holders to be
included in the registration statement, then registration of all or a specified
portion of the Registrable Securities shall be excluded from such registration
statement (in case of an exclusion as to a portion of the Registrable
Securities, such portion to be excluded shall be allocated among such Holders
and any affiliates and other selling shareholders of the Company including
securities to be registered in such underwritten offering in proportion to the
respective number of Registrable Securities and other securities requested to be
registered by each such Holder and affiliate). In such event the Company shall
give the applicable Holders prompt notice of the number of Registrable
Securities excluded from such registration at the request of the managing
underwriter. No such exclusion shall reduce the securities being offered by the
Company for its own account to be included in such registration statement.
(iii) The Holders, subject to the provisions of
Section 1, shall have the option to include their Registrable Securities in the
Company's underwritten offering. The Company shall not be required to include
any of the Holders' Registrable Securities in an underwritten offering of the
Company's securities unless such Holders accept the terms of the underwriting as
agreed upon between the Company and the underwriters selected by it (provided
such terms are usual and customary for selling stockholders) and the Holders
agree to execute such
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documents in connection with such registration as the Company or the managing
underwriter may reasonably request.
(iv) A managing underwriter of the Company's
securities may, at such managing underwriters discretion, delay a registration
of the Registrable Securities under this Section 1(c), provided, however, that
if such managing underwriter does delay such registration, then the Company
shall, at the request of any Holder within 120 days of the effectiveness of the
Company's registration statement, effect the registration of at least 400,000
shares of Registrable Securities (such shares to be allocated among the Holders
in accordance with the Allocation Formula).
(d) Demand Registration. In the event the Holders
have not sold all of their Registrable Securities within one year from the date
hereof, if the Holder or Holders of an aggregate of at least 50% of the
Registrable Securities then outstanding propose to dispose of at least 20% of
the then Registrable Securities (such Holder or Holders being herein called the
"Initiating Holders"), the Initiating Holders may request, on one occasion, the
Company, in writing, to effect such registration, stating the number of shares
of Registrable Securities to be disposed of by such Initiating Holders (which
shall be not less than 20% of the then Registrable Securities) and the intended
method of disposition. Upon receipt of such request, the Company will give
prompt written notice thereof to all other Holders whereupon such other Holders
shall give written notice to the Company within twenty (20) days after the date
of the Company's notice (the "Notice Period") if they propose to dispose of any
shares of the Registrable Securities pursuant to such registration, stating the
number of shares of the Registrable Securities to be disposed of by such Holder
or Holders and intended method of disposition. The Company shall effect promptly
after the Notice Period the registration under the 1933 Act of all shares of the
Registrable Securities specified in the requests of the Initiating Holders and
the requests of the other Holders; provided, however, that such period may be
delayed by the Company for up to ninety (90) days in total if, (A) upon the
advice of counsel, at the time the Company is required to exercise its best
efforts to cause such registration statement to become effective, such delay is
advisable and in the best interests of the Company because of the existence of
non-public material information, or (B) to allow the Company to complete any
pending audit of its financial statements.
(e) Cooperation with Company. The Holder will cooperate
with the Company in all respects in connection with this Agreement, including,
timely supplying all information reasonably requested by the Company and
executing and returning all documents reasonably requested in connection with
the registration and sale of the Registrable Securities.
(f) Termination of Rights. The Company's obligations
under this Section 1 shall terminate upon the date upon which all Registrable
Securities are eligible for resale without registration.
2. Registration Procedures. If and whenever the Company is
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under
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the 1933 Act, the Company shall (except as otherwise provided in this
Agreement), as expeditiously as possible:
(a) prepare and file with the Securities and
Exchange Commission (the "Commission") a registration statement and shall use
its best efforts to cause such registration statement to become effective and
remain effective until all the Registrable Securities are sold or become capable
of being publicly sold without registration under the 1933 Act;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the 1933 Act with
respect to the sale or other disposition of all securities covered by such
registration statement whenever the Holder or Holders of such securities shall
desire to sell or otherwise dispose of the same until the earlier of (i) nine
months from the effectiveness of the registration statement; or (ii) all the
shares owned by Holder are eligible for sale under Rule 144;
(c) furnish to the Holder such numbers of copies of a
summary prospectus or other prospectus, including a preliminary prospectus or
any amendment or supplement to any prospectus, in conformity with the
requirements of the 1933 Act, and such other documents, as the Holder may
reasonably request in order to facilitate the public sale or other disposition
of the securities owned by the Holder;
(d) register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as the Holder shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable such Holder to
consummate the public sale or other disposition in such jurisdictions of the
securities owned by such Holder, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein any general
consent to service of process;
(e) use its best efforts to list such securities on any
securities exchange on which any securities of the Company is then listed, if
the listing of such securities is then permitted under the rules of such
exchange;
(f) enter into and perform its obligations under an
underwriting agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters of such
underwritten offering;
(g) notify the Holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event of which it has knowledge as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be
5
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(h) furnish, at the request of the Holder on the date
such Registrable Securities are delivered to the underwriters for sale pursuant
to such registration or, if such Registrable Securities are not being sold
through underwriters, on the date the registration statement with respect to
such Registrable Securities becomes effective, (i) an opinion, dated such date,
of the counsel representing the Company for the purpose of such registration
addressed to the underwriters, if any, and to the Holder making such request,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as the Holder of such Registrable Securities may
reasonably request and are customarily included in such an opinion and (ii)
letters, dated, respectively, (1) the effective date of the registration
statement and (2) the date such Registrable Securities are delivered to the
underwriters, if any, for sale pursuant to such registration, from a firm of
independent certified public accountants of recognized standing selected by the
Company, addressed to the underwriters, if any, and to the Holder making such
request, covering such financial, statistical and accounting matters with
respect to the registration in respect of which such letters are being given as
the Holder of such Registrable Securities may reasonably request and are
customarily included in such letters; and
(i) take such other actions as shall be reasonably
requested by any Holder to facilitate the registration and sale of the
Registrable Securities; provided, however, that the Company shall not be
obligated to take any actions not specifically required elsewhere herein which
in the aggregate would cost in excess of $5,000.
3. Resale of Registrable Securities. Six months after the
date hereof, the Holders may sell (in accordance with the Allocation Formula)
Registrable Securities in a private placement or block trade in which the
Company will cooperate with the Holders, or be sold through a sale that the
Holder undertakes independently, in which case the Company's underwriter or
principal market maker will have a right of first refusal to purchase the
Registrable Securities on the same terms as offered to a third party, which
right of first refusal the underwriter has thirty days after notice thereof to
exercise, provided, however, any such sale must comply with, or be exempt from,
registration under the 1933 Act and applicable blue sky laws as stated in a
legal opinion of counsel acceptable to the Company. The offering price in said
private placement shall have a maximum discount of fifty percent (50%) from the
then current market price of the Company's Common Stock, but no less than $2.25
per share.
4. Expenses. All expenses incurred in any registration of the
Holder's Registrable Securities under this Agreement shall be paid by the
Company, including, without limitation, printing expenses, fees and
disbursements of counsel for the Company, expenses of any audits to which the
Company shall agree or which shall be necessary to comply with governmental
requirements in connection with any such registration, all registration and
filing fees for the Holders' Registrable Securities under federal and state
securities laws, and expenses of complying with the securities or blue sky laws
of any jurisdictions pursuant to Section 2(d); provided, however, the
6
Company shall not be liable for (a) any discounts or commissions to any
underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel when the Company's counsel is representing any or all selling security
holders.
5. Indemnification. In the event any Registrable Securities
are included in a registration statement pursuant to this Agreement:
(a) Company Indemnity. Without limitation of any
other indemnity provided to any Holder, either in connection with the offering
or otherwise, to the extent permitted by law, the Company shall indemnify and
hold harmless each Holder, the affiliates, officers, directors and partners of
each Holder, any underwriter (as defined in the 0000 Xxx) for such Holder, and
each person, if any, who controls such Holder or underwriter (within the meaning
of the 1933 Act or the Securities Exchange Act of 1934 (the "Exchange Act"),
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the 1933 Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statements including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements, thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (iii) any violation or alleged violation
by the Company of the 1933 Act, the Exchange Act, or any state securities law or
any rule or regulation promulgated under the 1933 Act, the Exchange Act or any
state securities law, and in each case, the Company shall reimburse the Holder,
affiliate, officer or director or partner, underwriter or controlling person for
any legal or other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable to any Holder in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by the Holder or any other officer, director or controlling person
thereof.
(b) Holder Indemnity. The Holder shall indemnify and
hold harmless the Company, its affiliates, its counsel, officers, directors,
shareholders and representatives, any underwriter (as defined in the 0000 Xxx)
and each person, if any, who controls the Company or the underwriter (within the
meaning of the 1933 Act or the Exchange Act), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the 1933 Act, the Exchange Act or any state securities law, and the Holder
shall reimburse the Company, affiliate, officer or director or partner,
underwriter or controlling person for any legal or other expenses incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; insofar as such losses, claims, damages or liabilities (or
actions and respect thereof) arise out of or are based upon a Violation which
occurs in reliance upon and in conformity
7
with written information furnished expressly for use in connection with such
registration by the Holder. Notwithstanding the above, the Holder's
indemnification shall be limited to the dollar value of the securities being
registered for the account of the Holder.
(c) Notice; Right to Defend. Promptly after receipt by
an indemnified party under this Section 5 of notice of the commencement of any
action (including any government action) such indemnified party shall, if a
claim in respect thereof made against any indemnifying party under this Section
5, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in and if
the indemnifying party agrees in writing that it will be responsible for any
costs, expenses, judgments, damages and losses incurred by the indemnified party
with respect to such claim, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own counsel with the fees and expenses to be paid by the indemnifying
party, if the indemnified party reasonably believes that representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential interests between such indemnified
party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within reasonable
time of the commencement of any such action shall relieve such indemnifying
party of any liability to the indemnified party under this Agreement only if and
to the extent that such failure is prejudicial to its ability to defend such
action, and the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Agreement.
(d) Contribution. If the indemnification provided
for in this Agreement is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, liability, claim,
damage or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other hand in connection with the statements or omissions which
resulted in such loss, claim, damage or expense as well as any other relevant
equitable considerations. The relevant fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact information supplied by the indemnifying party
or by the indemnified party and the parties' relative intent, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount the Holder shall be obligated to
contribute pursuant to the Agreement shall be limited to an amount equal to the
proceeds to the Holder of the Registrable Securities sold pursuant to the
registration statement which gives rise to such obligation to contribute (less
the aggregate amount of any damages which the Holder has otherwise been required
to pay in respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action arising from the
sale of such Registrable Securities).
8
(e) Survival of Indemnity. The indemnification provided
by this Agreement shall be a continuing right to indemnification and shall
survive the registration and sale of any Registrable Securities by any person
entitled to indemnification hereunder and the expiration or termination of this
Agreement.
6. Assignment of Registration Rights. The rights of the
Holder under this Agreement, including the rights to cause the Company to
register Registrable Securities, may not be assigned without the prior written
consent of the Company which consent shall not be unreasonably withheld.
7. Limitations on Other Registration Rights. Except as
otherwise set forth in this Agreement, the Company shall not, without the prior
written consent of the Holder of Registrable Securities, file any registration
statement filed on behalf of any person (including the Company) other than the
Holder to become effective during any period when the Company is not in
compliance with this Agreement.
8. Remedies.
(a) Time is of the Essence. The Company agrees that
time is of the essence of each of the covenants contained herein and that, in
the event of a dispute hereunder, this Agreement is to be interpreted and
construed in a manner that will enable the Holders to sell their Registrable
Securities as quickly as possible after such Holders have indicated to the
Company that they desire their Registrable Securities to be registered. Any
delay on the part of the Company not expressly permitted under this Agreement,
whether material or not, shall be deemed a material breach of this Agreement.
(b) Remedies Upon Default or Delay. The Company
acknowledges the breach of any part of this Agreement may cause irreparable
harm to the Holder and that monetary damages alone may be inadequate. The
Company therefore agrees that the Holder shall be entitled to injunctive relief
or such other applicable remedy as a court of competent jurisdiction may
provide. Nothing contained herein will be construed to limit a Holder's right to
any remedies at law, including recovery of damages for breach of any part of
this Agreement.
9. Notices.
(a) All communications under this Agreement shall be
in writing and shall be mailed by first class mail, postage prepaid, or
telegraphed or telexed with confirmation of receipt or delivered by hand or by
overnight delivery service,
(i) If to the Company, at:
Diplomat Corporation
00 Xxx Xxxxx Xxxxx
0
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx, President
With a copy to:
Gersten, Savage, Xxxxxxxxx & Xxxxxxxxxx, Jr.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
or at such other address as it may have furnished in writing to the Holder
of Registrable Securities at the time outstanding, or
(ii) if to the Holder of any Registrable
Securities, to the address of such Holder as it appears in the stock ledger of
the Company.
With a copy to:
Rosenman & Colin
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
(b) Any notice so addressed, when mailed by registered
or certified mail shall be deemed to be given three days after so mailed, when
telegraphed or telexed shall be deemed to be given when transmitted, or when
delivered by hand or overnight shall be deemed to be given when delivered.
10. Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of the Company and the Holders.
11. Amendment and Waiver. This Agreement may be amended, and
the observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Holders; provided, however, that no such
amendment or waiver shall take away any registration right of the Holders of
Registrable Securities or reduce the amount of reimbursable costs to the Holders
of Registrable Securities in connection with any registration hereunder without
the consent of the Holders. No delay on the part of any party in the exercise of
any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any party of any right, power or remedy preclude
any other or further exercise thereof, or the exercise of any other right, power
or remedy.
10
12. Counterparts. One or more counterparts of this Agreement
may be signed by the parties, each of which shall be an original but all of
which together shall constitute one and the same instrument.
13. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of New York,
without giving effect to conflicts of law principles.
14. Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
15. Headings. The headings in this Agreement are for
convenience of reference only and shall not be deemed to alter affect the
meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first set forth above.
DIPLOMAT CORPORATION
By:
---------------------------
------------------------------
Xxxxxx Xxxxxx
------------------------------
Xxxxxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxxx
11
EXHIBIT 8(c)
ASSIGNMENT OF RIGHTS AGREEMENT
This Agreement is entered as of _____________, 1998 by and between
Xxxxxx X. Xxxxx ("Xxxxx"), Xxx X. Xxxxxxxxx ("Xxxxxxxxx"), Xxx Xxxxxx Ltd., a
New York corporation ("Magram"), Diplomat Corporation, a Delaware corporation
("Diplomat"), Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, and Xxxxxxxxx Xxxxx. Xxxxxx Xxxxxx,
Xxxxxx Xxxxxx, and Xxxxxxxxx Xxxxx are colectively referred to herein as the
"Magram Stockholders".
WHEREAS, Rubin, Kaplowitz, Magram and the Magram Stockholders entered
into a Stock Purchase Agreement dated May 16, 1997 (the "Magram Agreement")
which provided that, as an inducement to acquire Senior Convertible Preferred
Stock from Magram, Magram and the Magram Stockholders made certain
representations and warranties which were to survive the closing of the Magram
Agreement; and
WHEREAS, as an inducement to enter into the Agreement and Plan of Merger
between Diplomat and Magram, et al., dated ____________, 1997 (the "Merger
Agreement"), Xxxxx and Xxxxxxxxx desire to assign certain rights under the
Magram Agreement to Diplomat.
NOW, THEREFORE, the parties, intending to be bound, and for good and
valuable consideration, hereby agree as follows:
1. Assignment of Rights. Xxxxx and Xxxxxxxxx assign to Diplomat
(i) all of their rights either or both have to assert any breach or
misrepresentation of any and all representations and/or warranties in Section 3
of the Magram Agreement and (ii) any and all remedies available to either or
both of them from such breach or misrepresentation against Magram and/or the
Magram Stockholders.
2. Waiver. As consideration for the assignment as provided in
Section 1 herein, Diplomat, on behalf of itself and its officers, directors,
subsidiaries (including Magram Acquisition Corp. and, following consummation of
the merger, Magram), affiliates, successors and assigns, hereby waives any and
all rights and remedies, if any, that Diplomat or any of the foregoing may have
in the future against Xxxxx and/or Xxxxxxxxx for any breach or misrepresentation
of any representation or warranty contained in Section 3 of the Merger
Agreement. Such waiver shall not constitute a waiver or diminution of any rights
Diplomat has or may have against any other party making representations and
warranties under Section 3 of the Merger Agreement.
3. Consent to Assignment. Each of Magram and the Magram
Stockholders consent to the assignment or rights as provided in Section 1
herein.
1
4. Survival. This Agreement shall survive the closing of the
Merger Agreement and the closing of the Magram Agreement. The Magram Agreement
shall remain in full force and effect in accordance with its terms.
-----------------------------
Xxxxxx Xxxxx
-----------------------------
Xxx Xxxxxxxxx
DIPLOMAT CORPORATION
By:
--------------------------
Name:
Title:
XXX XXXXXX, LTD.
By:
--------------------------
Name:
Title:
-----------------------------
Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx
-----------------------------
Xxxxxxxxx Xxxxx
