Exhibit 10.12
AGREEMENT
THIS AGREEMENT, dated this 18th day of January, 2000, and entered
into by and between Plastics Mfg. Company, a Wisconsin corporation
("PMC"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇"), Moldmakers Leasing and
Investments Limited Partnership, LLP, a Wisconsin limited partnership
("Leasing"), Moldmakers, Inc., a Wisconsin corporation ("Moldmakers"),
Statistical Plastics Corporation, a Wisconsin corporation ("SPC"), and
Prototype Mold & Design, Inc. ("PMD"), a Wisconsin corporation.
WHEREAS, PMC, ▇▇. ▇▇▇▇▇▇▇, Leasing, Moldmakers, SPC, and PMD are
affiliates of one another within the meaning of the federal securities
laws; and
WHEREAS, PMC, Leasing, Moldmakers, SPC, and PMD (collectively
referred to as the "MGS Companies") sold an aggregate of 722,490 shares
of PMC common stock (the "Rescission Shares") to various parties during
the period from August 6, 1999 through and including September 30, 1999
(the "Sales Period"); and
WHEREAS, the Rescission Shares sold by PMC and the MGS Companies
during the Sales Period were not registered under the Securities Act of
1933, as amended (the "Securities Act"), and were not registered or
qualified under the securities laws of any state in which such sales
were made; and
WHEREAS, PMC, in connection with the sale of 500,000 shares of
Common Stock to be registered under the Securities Act, intends to
offer to repurchase the Rescission Shares for the consideration paid
for such shares, together with applicable interest as required under
the laws of the states in which such shares were sold, in order to
effect a legal rescission offer and extinguish any state law claims for
liability in connection with the unregistered or unqualified sales of
the Rescission Shares; and
WHEREAS, ▇▇. ▇▇▇▇▇▇▇ is a director, partner or officer of, and he
is, directly or indirectly, the beneficial owner of a majority of the
outstanding equity interests of, PMC and each of the MGS Companies; and
WHEREAS, each of ▇▇. ▇▇▇▇▇▇▇ and the MGS Companies benefitted from
the sale of the Rescission Shares and believes it is appropriate to
assume the repurchase obligations associated with the Rescission
Shares;
NOW, THEREFORE, PMC, ▇▇. ▇▇▇▇▇▇▇, and each of the MGS Companies
agree as follows:
1. CONDUCT OF RESCISSION OFFER. On or before September 30, 2000, PMC
shall offer to repurchase all Rescission Shares in such a manner as is
designed and intended to eliminate the right of each purchaser of
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Rescission Shares to seek damages or otherwise assert a liability
against PMC, ▇▇. ▇▇▇▇▇▇▇, and the MGS Companies under the state law
governing the sale of unregistered or unqualified securities to such
purchaser. Accordingly, PMC shall use its best efforts to conduct such
repurchase offer (the "Repurchase Offer") in accordance with the
requirements of the applicable provisions of Section 551.59 of the
Wisconsin Uniform Securities Law, Section 5/13 of the Illinois
Securities Law of 1953, Section 10-04-17 of the North Dakota Securities
Act of 1951, and Section 25507 of the California Corporation Code.
2. ASSUMPTION OF PMC OBLIGATIONS. In consideration of the Repurchase
Offer to be conducted by PMC pursuant to the provisions of paragraph 1:
(a) ▇▇. ▇▇▇▇▇▇▇ agrees to assume the obligations of PMC which
arise in connection with the repurchase by PMC of 85,500 Rescission
Shares sold by PMC, including the consideration paid by investors and
interest at the rate and in the amount determined by applicable state
law;
(b) Leasing agrees to assume the obligations of PMC which arise in
connection with the repurchase by PMC of 427,440 Rescission Shares sold
by Leasing, including the consideration paid by investors and interest
at the rate and in the amount determined by applicable state law;
(c) Moldmakers agrees to assume the obligations of PMC which arise
in connection with the repurchase by PMC of 41,550 Rescission Shares
sold by Moldmakers, including the consideration paid by investors and
interest at the rate and in the amount determined by applicable state
law;
(d) SPC agrees to assume the obligations of PMC which arise in
connection with the repurchase by PMC of 145,500 Rescission Shares sold
by SPC, including the consideration paid by investors and interest at
the rate and in the amount determined by applicable state law; and
(e) PMD agrees to assume the obligations of PMC which arise in
connection with the repurchase by PMC of 22,500 Rescission Shares sold
by PMD, including the consideration paid by investors and interest at
the rate and in the amount determined by applicable state law.
3. PAYMENT. Each of ▇▇. ▇▇▇▇▇▇▇ and each of the MGS Companies will
reimburse PMC within five business days of the receipt of a statement
from PMC of the amount required to reimburse PMC for all expenses
incurred by PMC with respect to the obligations of PMC assumed pursuant
to paragraph 2. Within five business days of the receipt of payment
from ▇▇. ▇▇▇▇▇▇▇ or an MGS Company pursuant to this paragraph 3, PMC
shall deliver to the payor duly executed stock certificates for that
number of shares of Common Stock which is equal to the number of
Rescission Shares for which such payor has assumed PMC's obligations.
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4. STATUS OF SHARES. ▇▇. ▇▇▇▇▇▇▇ and each of the MGS Companies each
warrant and represent that:
(a) He or it, as the case may be, will not sell, transfer, or
otherwise dispose of any shares of Common Stock acquired pursuant to
this Agreement except pursuant to an effective registration statement
filed under the Securities Act with the Securities and Exchange
Commission or an exemption from such registration and in compliance
with applicable state securities laws; and
(b) Any shares of Common Stock to be acquired pursuant to this
Agreement will be for his or its, as the case may be, own account and
for investment and without the intention of reselling the same and that
there is no agreement with others regarding the sale, transfer, or
other disposition of any of such shares of Common Stock.
5. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the
parties and supersedes any prior understandings, agreements, or
representations by or between the parties, written or oral, to the
extent they related in any way to the subject matter hereof.
(b) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their
respective successors and permitted assigns. No party may assign
either this Agreement or any of its rights, interests, or obligations
hereunder.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(d) HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly
given if (and then two business days after) it is sent by registered or
certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
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If to PMC:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
Plastics Mfg. Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇. ▇▇▇▇▇▇▇, Leasing, Moldmakers, or SPC:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
W188 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, facsimile transmission, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner herein set
forth.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Wisconsin without giving effect to any choice or conflict of law
provision or rule (whether of the State of Wisconsin or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Wisconsin.
(g) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed
by the parties. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of
any prior or subsequent such occurrence.
(h) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and
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provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
(i) SPECIFIC PERFORMANCE. Each party acknowledges and agrees that
the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each party
agrees that the other party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and
to enforce specifically this Agreement and the terms and provisions
hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the parties, in addition to
any other remedy to which it may be entitled, at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
PROTOTYPE MOLD & DESIGN, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
As its President
MOLDMAKERS LEASING AND PLASTICS MFG. COMPANY
INVESTMENTS LIMITED
PARTNERSHIP, LLP
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
As Partner As its Executive Vice President
MOLDMAKERS, INC. STATISTICAL PLASTICS CORPORATION
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
As its President As its President
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