EXHIBIT 37
AMENDED AND RESTATED
STOCK SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK SUBSCRIPTION AGREEMENT (the "AGREEMENT"), dated
as of September 19, 2002, by and among Royal Associates, Inc., a Delaware
corporation (the "COMPANY"), each individual whose signature appears on the
signature page of this Agreement (each, a "STOCKHOLDER" and collectively the
"STOCKHOLDERS").
WHEREAS, each Stockholder participated in the formation of the Company on the
terms contained in the Subscription Agreement dated March 28, 2002
("SUBSCRIPTION AGREEMENT"); and
WHEREAS, each Stockholder purchased the number of shares of the Company's Common
Stock, without par value per share (the "COMMON STOCK"), set forth opposite such
Stockholder's name in Section 3.5(a) of the Subscription Agreement for an
aggregate purchase price set forth in Column E opposite such Stockholder's name
in Section 3.5(a) of the Subscription Agreement to be paid in cash by the
Stockholder; and
WHEREAS, the Company, in exchange for the payment of the cash consideration
referred to above, issued all of the shares of Common Stock to the Stockholders,
in the respective proportions to be purchased by them as set forth, and on the
terms and conditions set forth, below; and
WHEREAS, at the time the Company issued all of the shares of Common Stock to the
Stockholders, the proportion of ▇▇▇▇ capital to be contributed was based on an
estimate of total shares of stock of Royal Precision, Inc. ("RPI") that each
Stockholder would ultimately contribute to the Company; and
WHEREAS, the Board of Directors of the Company has determined that the ultimate
value of cash and securities (including guaranty fees) to be contributed to the
Company is $1,728,864.99; and
WHEREAS, as a result of such determination of ultimate value, the Board of
Directors has authorized the Company to issue one share of Common Stock in
exchange for each $172.89 of value contributed to the Company and to execute and
deliver this amended and restated Subscription Agreement to correctly reflect
the number of shares of Common Stock that should have been issued to the
Stockholders by the Company in exchange for their capital contributions.
NOW THEREFORE, the parties to this Agreement hereby agree to amend and restate
the Subscription Agreement as follows:
ss. 1. DEFINITIONS. For all purposes of this Agreement, the following terms
shall have the meanings set forth below:
"ACT" See Section 4.1.
"AFFILIATED COMPANIES" See Section 5.
"AGREEMENT" See preamble.
"COMMON STOCK" See preamble.
"COMPANY" See preamble.
"CONFIDENTIAL INFORMATION" See Section 5.
"GROUP" See Section 5.
"RPI" See Section 5.
"SHARES" See Section 2.1.
"STOCKHOLDER" See preamble.
"SUBSCRIPTION AGREEMENT" See preamble.
ss. 2. ISSUANCE OF STOCK TO THE STOCKHOLDERS.
2.1 SALE AND PURCHASE OF STOCK. Subject to all of the terms and
conditions hereof and in reliance on the representations and warranties set
forth herein, the Company agrees to issue and sell to the Stockholders and each
Stockholder agrees, severally and not jointly, to purchase from the Company on
the date hereof, the number of shares of Common Stock (the "SHARES") set forth
in Column B opposite the name of such Stockholder in Section 3.5(a) below, for a
purchase price set forth in Column C opposite the name of such Stockholder in
Section 3.5(a) below, to be paid in cash.
2.2 PAYMENT OF CASH PURCHASE PRICE. Each Stockholder paid its portion
of the cash purchase price for the Shares to be purchased hereunder. The Company
shall deliver to each Stockholder a certificate or certificates representing the
number of Shares set forth in Column B opposite the name of such Stockholder,
each such share certificate to be registered in such Stockholder's name and
bearing the legends set forth in Section 4.2 hereof.
ss. 3. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. In order to induce the
Stockholder to enter into this Agreement and to purchase the Shares as described
herein, the Company represents and warrants to each Stockholder as follows:
3.1 ORGANIZATION AND GOOD STANDING. The Company is duly organized and
existing in good standing in its jurisdiction of incorporation and has the
corporate power to own its properties and to carry on its business as now
conducted and as proposed to be conducted.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Company of this Agreement, and the issuance and sale by the Company of the
Shares to the Stockholder hereunder, (a) are within the Company's corporate
power and authority, (b) have been duly authorized by all necessary corporate
proceedings, and (c) do not conflict with or result in any breach of any
provision of or the creation of any lien upon any of the property of the Company
or require any consent or approval pursuant to the charter or bylaws of the
Company or any law, regulation, order, judgment, writ, injunction, license,
permit, agreement or instrument.
3.3 ENFORCEABILITY. The execution and delivery by the Company of this
Agreement, and the issuance and sale of the Shares to the Stockholder hereunder,
will result in legally binding obligations of the Company, enforceable against
it in accordance with the terms and provisions hereof.
3.4 GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Company of this Agreement, and issuance and sale by the Company of the
Shares to the Stockholder hereunder, do not require the approval or consent of,
or any filing with, any governmental authority or agency.
3.5 CAPITALIZATION.
(a) CAPITAL STOCK. The authorized capital stock of the Company
consists solely of 20,000 shares of Common Stock. On the date hereof, after
giving effect to the transactions contemplated hereby and by any other
agreements to purchase capital stock of the Company as of the date hereof, the
Company will have no outstanding capital stock other than 2,260.881 shares of
Common Stock. The following is a chart showing the names of each of the initial
subscribers, the number of shares subscribed for and the amount to be paid for
the subscriptions:
(B)
(A) Number of (C)
Subscriber Shares Total Consideration
---------- ------ -------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15.6669 $ 2,708.94
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 6.180 $ 1,068.46
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3.000 $ 518.66
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 49.181 $ 8,502.75
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5.747 $ 993.51
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 212.464 $36,732.19
▇▇▇▇▇▇ ▇▇▇▇▇▇ 54.802 $ 9,474.49
Total 347.043
(b) OPTIONS, ETC. The Company has no outstanding rights (either
preemptive or other) or options to subscribe for or purchase from the Company
and no warrants or other agreements providing for or requiring the issuance by
the Company, of any of its capital stock or any securities convertible into or
exchangeable for its capital stock.
ss. 4. THE STOCKHOLDER'S REPRESENTATIONS AND WARRANTIES. In order to induce
each other Stockholder and the Company to enter into this Agreement and the
Company to issue and sell the Shares to each Stockholder as described herein,
each Stockholder represents and warrants as follows:
4.1 INVESTMENT REPRESENTATIONS. (a) The Shares are being acquired by
him for his own account for investment and not with a view to the distribution
thereof. The Stockholder understands that the Shares have not been registered
under the Securities Act of 1933, as amended (the "ACT"), on the ground that the
offer and sale of the Shares to him are exempt from the registration
requirements of the Act under Section 4(2) thereof as a transaction not
involving any public offering of the Shares. The Stockholder understands that
the Company's reliance on such exemption is predicated in part on the
representations of the Stockholder which are contained herein.
(b) The Stockholder understands that he must bear the economic risk of
his investment in the Shares for an indefinite period of time because the
issuance of the Shares has not been registered under the Act and, therefore,
cannot be sold unless such sale is subsequently registered under the Act or an
exemption from such registration is available. The Stockholder is an "accredited
investor" (as defined in Rule 501 promulgated under the Act). The Stockholder
agrees that he will not offer to sell or otherwise transfer any of the Shares
except as expressly permitted by this Agreement and then only after the Company
has received an opinion of its counsel that such offer, sale or transfer is not
in violation of the registration requirements of the Act or other applicable
law.
4.2 LEGEND. The Stockholder agrees that each certificate representing
the Shares shall bear a legend each substantially in the following form:
The sale or other transfer of the shares evidenced by this
certificate has not been registered under the Securities Act
of 1933, as amended. No transfer, sale or other disposition
of these shares may be made unless a Registration Statement
with respect to these shares has become effective under said
Act, or the Company has been furnished with an opinion of
counsel satisfactory to the Company that such registration
is not required.
ss. 5. CONFIDENTIALITY. The Stockholders recognize and acknowledges that
any information pertaining to the business of the Company, Royal Precision, Inc.
("RPI"), or any other company now existing or in the future affiliated with the
Company, RPI, their partners, principals or owners ("AFFILIATED COMPANIES" and
collectively with the Company, RPI or Affiliated Companies, the "GROUP"),
including but not limited to confidential information about customers (including
their tastes, requirements and preferences) or suppliers, or lists of the names,
addresses and phone numbers of customers or suppliers, employees, prices,
methods of doing business, financial condition, operation and trading
procedures, distribution or merchandising methods, processing, extruding,
manufacturing, printing or assembly methods; trade secrets, inventions, types
and identity of machinery used, material used, marketing techniques, proprietary
information or other similar confidential items of the Group ("CONFIDENTIAL
INFORMATION"), as the same may exist from time to time, are valuable, special
and unique assets of the business of the members of the Group. The Stockholders
shall not, as stockholders, during or after the term of this Agreement, (i)
disclose any such Confidential Information, directly or indirectly, to any
entity for any reason whatsoever, except in response to a lawful court order
which the applicable member of the Group shall have had the opportunity to
contest; or (ii) use Confidential Information, directly or indirectly, for his
own personal benefit or gain, or for the benefit or gain of any other person or
entity.
ss. 6. MISCELLANEOUS.
6.1 AMENDMENT AND WAIVER. No modification, amendment or waiver of any
provision of this Agreement will be effective against the Company or any
Stockholder unless such modification, amendment or waiver is approved in writing
by the parties hereto. The failure of any party to enforce any of the provisions
of this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
6.2. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
6.3. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and thereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
6.4. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to the
benefit of and be enforceable by the Company and its successors and assigns and
the Stockholders and their heirs, transferees, successors and assigns.
6.5. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
6.6. REMEDIES. Each Stockholder will be entitled to enforce his rights
under this Agreement specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in his favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any Stockholder may in his sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief in order to enforce or prevent any
violation of the provisions of this Agreement. In the event of any dispute
involving the terms of this Agreement, the prevailing party shall be entitled to
collect reasonable legal fees and expenses from the other parties to the
dispute.
6.7. NOTICES. All notices hereunder shall be sufficient if made in
writing and delivered to the mailing and delivery address of the respective
parties indicated on the signature pages to this Agreement, or transmitted to
the facsimile or telex numbers set forth on the signature pages to this
Agreement. All such notices shall be deemed received one Business Day after (a)
signed for, or refused, if given by certified mail, (b) delivery if given by
express courier service, or (c) transmission, if given by facsimile or telex
transmission.
6.8. GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this agreement will be governed by the laws of
the state of Delaware.
6.9. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Subscription
Agreement on the day and year first above written.
ROYAL ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
Address for Notices:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 5134 Blazer Parkway
Wilson, Wyoming 83014 ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: ▇▇▇-▇▇▇-▇▇▇▇
STOCKHOLDERS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Telefax: ▇▇▇-▇▇▇-▇▇▇▇
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Address for Notices:
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1800 Firstar Tower
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
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Address for Notices:
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c/o Merbanco, Incorporated
P.O. Box 25182
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
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Telephone:
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