EXERCISE AND REPURCHASE AGREEMENT
THIS EXERCISE AND REPURCHASE AGREEMENT ("Agreement") is made and entered
into as of the 24th day of January, 1997 by and among ▇▇▇▇▇▇ Holdings, Inc.
(the "Corporation") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, F. ▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (individually an "Option Holder" and collectively the
"Option Holders").
RECITALS
The Corporation and the Option Holders have entered into the
Nonstatutory Stock Option Agreements specified on Exhibit A attached hereto
(the "Option Agreements"), pursuant to which the Option Holders have been
granted options to purchase shares of common stock, $.01 par value per share,
of the Corporation ("Common Stock") on the terms and conditions set forth in
the Option Agreements.
The Option Holders desire to exercise their options to acquire an
aggregate of 106,114 shares of Common Stock and to sell such shares of Common
Stock to the Corporation on the terms and conditions of this Agreement.
The Corporation desires to permit the Option Holders to exercise their
options to acquire an aggregate of 106,114 shares of Common Stock and to
repurchase such shares of Common Stock on the terms and conditions of this
Agreement.
The Corporation, ▇▇▇▇▇▇ International, Inc., Blackstone Capital Partners
II Merchant Banking Fund L.P., Blackstone Offshore Capital Partners II
Merchant Banking Fund L.P. and Blackstone Family Investment Partnership L.P.
previously entered into that certain Stock Purchase Agreement, dated as of
January 24, 1997 (the "Stock Purchase Agreement"), and all obligations of the
parties under this Agreement are subject to (a) the completion of the
"Closing" under the Stock Purchase Agreement and (b) the approval of this
Agreement and the transactions contemplated hereby by the stockholders of the
Corporation who own more than seventy-five percent (75%) of the voting power
of all outstanding stock of the Corporation immediately before the Closing (as
defined in the Stock Purchase Agreement).
In consideration of the foregoing and of the mutual representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Exercise of the Options. Subject to Section 4 hereof, each of the
Option Holders hereby exercises his option (each an "Option") under the Option
Agreement to which he is a party to acquire the shares of Common Stock set
forth opposite his name on Exhibit A attached hereto and designated as "Option
Shares" (collectively, the "Option Shares") immediately following the
"Closing" under the Stock Purchase Agreement. Subject to Section 4 hereof,
the Corporation hereby approves such exercises of such Options.
2. Repurchase of the Option Shares. Immediately following the
exercises of the Options provided for in Section 1 hereof, the Option Holders
severally agree to sell to the Corporation, and the Corporation agrees to
repurchase from the Option Holders, all of the Option Shares at the purchase
price of $10.15 per share in cash.
3. Net Payment; No Issuance of Shares. The parties hereto agree that
it is in the best interests of the parties to effect the transactions
contemplated by Section 1 and Section 2 hereof as a unified exercise and
repurchase and as a consequence (a) no consideration shall be tendered by the
Option Holders for exercise of their Options to the extent provided in Section
1 hereof, (b) subject to Section 8, the Corporation shall pay in cash to each
of the Option Holders the "Net Amount" set opposite his name on Exhibit A
attached hereto within two (2) business days after the "Closing" under the
Stock Purchase Agreement (the "Option Share Termination Payment"), and (c) no
actual issuance of the Option Shares shall be made and the amount paid to the
Option Holders shall be deemed a payment to fully terminate and extinguish the
rights of the Option Holders to acquire the Option Shares pursuant to the
Option Agreements (and in the case of all Option Holders other than ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ it shall fully extinguish and terminate the applicable Option
Agreement).
4. Conditions Precedent. All obligations of the parties under this
Agreement shall be subject to the completion of the "Closing" under the Stock
Purchase Agreement. The obligations of the Corporation under this Agreement,
and the rights of the Option Holders under this Agreement, also shall be
subject to the approval of this Agreement and the transactions contemplated
hereby by the stockholders of the Corporation who own more than seventy-five
percent (75%) of the voting power of all outstanding stock of the Corporation
immediately before the Closing (as defined in the Stock Purchase Agreement).
5. Termination. This Agreement shall terminate if (a) the conditions
precedent specified in Section 4 hereof shall not have been satisfied or
waived in writing by all parties hereto prior to February 28, 1997, or (b) the
Stock Purchase Agreement shall terminate for any reason prior to the
completion of the "Closing" thereunder. In the event of termination of this
Agreement, no party hereto shall have any obligations or liabilities to any
other party hereto.
6. Representations and Warranties. Each of the Option Holders
severally represents and warrants to the Corporation as follows as of the date
hereof and as of the consummation of the transactions contemplated hereby:
a. The Option Holder has the legal right and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement constitutes a valid and legally binding obligation of the
Option Holder, enforceable against the Option Holder in accordance with its
terms.
b. The execution, delivery and performance of this Agreement by the
Option Holder do not and shall not violate or result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
agreement or instrument to which the Option Holder is a party or is bound.
c. The Option Holder has not assigned, pledged, conveyed, transferred
(or attempted to assign, pledge, convey or transfer) to any individual,
corporation, partnership or other entity any of his rights under the Option
Agreement to which he is a party. No lien, claim or encumbrance exists with
respect to the Option Agreement to which the Option Holder is a party or any
Option Shares.
d. The Option Holder has such knowledge and experience in financial
and business matters that he is capable of evaluating the risks and merits of
the exercise and repurchase of the Option Shares contemplated hereby. As a
result of the positions that the Option Holder has with the Corporation and/or
its wholly-owned subsidiary, ▇▇▇▇▇▇ International, Inc. ("International"), he
has had access to all material facts concerning the Corporation and
International and their business, financial condition and prospects.
e. The Option Holder is an "accredited investor" as that term is
defined by Rule 501 of Regulation D promulgated by the United States
Securities and Exchange Commission.
f. Exhibit A attached hereto is accurate with respect to the Option
Holder.
In connection with the completion of the transactions contemplated
hereby, each of the Option Holders severally agrees to deliver to the
Corporation a certificate stating that the foregoing representations and
warranties of the Option Holder are true and correct on the date of the
closing of the transactions contemplated hereby.
7. No Exercise. Except as expressly provided for in this Agreement
or as expressly agreed to in writing between the Option Holders and the
Corporation after the date hereof, each of the Option Holders severally agrees
not to exercise the options, in whole or in part, granted pursuant to the
Option Agreement to which he is a party or any other stock option agreement
with the Corporation to which he is a party prior to the completion of the
"Subsequent Closing" under the Redemption Agreement (as defined in the Stock
Purchase Agreement) and the Redemption Offer referred to therein. Each of the
Option Holders acknowledges that the Corporation intends to effect the
Redemption Offer (as defined in the Stock Purchase Agreement) and consents to
the exclusion of such Option Holder as an offeree under such Redemption Offer.
8. Withholding Requirements. The Corporation shall have the right to
withhold from the amount of the Option Share Termination Payment or require
the Option Holder to remit to the Corporation any and all amounts sufficient
to satisfy any applicable withholding requirements set forth in the Internal
Revenue Code of 1986, as amended, and any state or local law, as provided in
Section 14 of the Plan (as defined in the Option Agreements).
9. Successors Bound; No Assignment. This Agreement shall be binding
upon the estate, executor, personal representative, guardian, heirs, and any
other successor of the Option Holder. This Agreement and the rights of the
Option Holder hereunder may not be assigned by the Option Holder in whole or
in part.
10. Choice of Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana applicable to contracts
made and to be performed in such state.
11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall together
constitute the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
"Corporation"
▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇ ▇ ▇▇▇▇▇▇
Title: Vice President, Finance
"Option Holders"
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ F. ▇▇▇▇▇ ▇▇▇▇▇
F. ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
EXHIBIT A TO
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EXERCISE AND REPURCHASE AGREEMENT
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DATE OF
THE OPTION
OPTION HOLDER AGREEMENT TOTAL SHARES(1) OPTION SHARES(2) NET AMOUNT(3)
-------------------- ------------------ --------------- ---------------- --------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ September 1, 1993 200,000 40,000 $ 306,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ August 31, 1989 23,644 23,644 $ 186,078
F. ▇▇▇▇▇ ▇▇▇▇▇ August 31, 1989 35,470 35,470 $ 245,098
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ September 25, 1989 7,000 7,000 $ 53,550
---------------- --------------
TOTALS 106,114 $ 790,726
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1 Represents the total number of shares of Common Stock which may be acquired upon
exercise of the options granted by the applicable Option Agreement.
2 Represents the total number of shares of Common Stock that the Option Holder is
electing to acquire by exercise of his options and to have repurchased by the Corporation
pursuant to this Agreement.
3 The amount, before the withholding required by Section 8 of this Agreement, to be
paid by the Corporation to the applicable Option Holder, which represents $10.15 multiplied
by the number of Option Shares specified less the aggregate exercise price for acquisition
of the Option Shares.