EXH 10.2
S T O C K P U R C H A S E O P T I O N A G R E E M E N T
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entered into this 6th DAY OF FEBRUARY 2004, by and between:
B & B BEHEER B.V. and CAMPEX HOLDING B.V., both Netherlands corporations,
hereinafter referred to as the "NL GRANTORS", with respect to 100% of the shares
of:
SA SOUND B.V.
XXXXXXXX 0
0000 XX XXXXX
XXX XXXXXXXXXXX
and SERGE VAN TUIJN, hereinafter referred to as the "US GRANTOR", with respect
to 100% of the shares of:
SA USA, INC.
0000 XXXXX XXXXX
XXX XXXXX, XXX XXXX 00000
XXX
and SLS INTERNATIONAL, INC., with offices located at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000, XXX, hereinafter referred to as the "OPTION
HOLDER".
W I T N E S S E T H
WHEREAS, the Option Holder wishes to acquire and the NL Grantors wish
to grant an option to purchase 100% of the shares of SA SOUND B.V., on the terms
and conditions set forth in this Agreement, and
WHEREAS, the Option Holder wishes to acquire and the US Grantor wishes
to grant an option to purchase 100% of the shares of SA USA, INC., on the terms
and conditions set forth in this Agreement,
THEREFORE, in consideration of the premises and in exchange for the
mutual covenants contained herein as well as other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
1. Option Terms. Subject to and upon the terms and conditions set forth
in this Agreement, the NL Grantors will grant to the Option Holder an exclusive
irrevocable option to purchase 100% of the shares of SA SOUND B.V., and the US
Grantor will grant to the Option Holder an exclusive irrevocable option to
purchase 100% of the shares of SA USA, Inc., hereinafter collectively referred
to as the "Option".
The Option shall be granted effective upon receipt of the purchase
price of the Option, which is EUR 50,000, and such purchase price is
non-refundable, except to the extent set forth in Section 4 below.
Under the Option, the collective purchase price for 100% of the shares
of SA SOUND B.V. plus 100% of the shares of SA USA, Inc. shall be a total of EUR
370,000.--, payable as follows:
EUR 150,000.-- in cash, and
EUR 220,000.-- in cash, unless the Option Holder elects to pay with a
number of shares of Series B Preferred Stock of SLS International, Inc.
equivalent to such value, issued at the price such shares are issued in the
contemplated private placement of such shares of preferred stock.
The Option shall expire at 5:00 p.m. Central Standard Time on February
27, 2004, hereinafter referred to as the "Expiration".
2. Covenants of the NL Grantors and the US Grantor. From the date of
this Agreement through the Expiration, the NL Grantors and the US Grantor
covenant and agree as follows:
(a) they shall promptly negotiate in good faith with the Option Holder
the terms of, and shall execute and deliver, a Stock Purchase Agreement,
pursuant to which the Option Holder would purchase the shares of SA Sound B.V.
and SA USA, Inc. upon exercise of the Option, and the terms of such Stock
Purchase Agreement shall include customary and appropriate representations,
warranties, conditions, covenants and indemnifications; provided that the NL
Grantors shall make no representations and warranties with respect to SA USA,
Inc. and the US Grantor shall make no representations and warranties with
respect to SA Sound B.V.; and
(b) they shall, and they shall cause SA Sound B.V. and SA USA, Inc. to
(i) provide, the Option Holder and its representatives with access, during
regular business hours, to the premises and to the books and records of SA Sound
B.V. and SA USA, Inc., and (ii) cause the officers, employees and other
representatives of each of SA Sound B.V. and SA USA, Inc. to furnish the Option
Holder with such financial and operating data and other information with respect
to SA Sound B.V. and SA USA, Inc. as the Option Holder shall from time to time
reasonably request.
3. Manner of Exercising the Option. The Option Holder may exercise the
Option at any time prior to its Expiration by submitting payment in full, or by
the parties' execution of the Stock Purchase Agreement contemplated by Section
2(a).
4. Terms of Payment. (a) All cash payments from the Option Holder to
the NL Grantors and the US Grantor shall be made in US Dollars, converted at the
currency exchange rate as published by the Federal Reserve Bank of New York at
12:00 noon on the date of the payment. See:
xxxx://xxx.xx.xxx.xxx/xxxxxxx/xxxxxxx/xxxx.xxx
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All cash payments from the Option Holder to the NL Grantors and the US
Grantor shall be made via wire transfer to Xxxxxx Xxx Xxxx, the attorney for the
NL Grantors and the US Grantor, into the following Attorney Escrow Account, to
be held in such escrow account until distribution in accordance with this
Agreement:
XXXX - X X XXX XXXX ESQ account number: 352 0000000 65
0000 Xxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
XXX
Chase Bank routing number: 021 000 021
0000 Xxxxx Xxxxxx
Xxx Xxxxx, Xxx Xxxx 00000
XXX
The Parties understand that all interest earned on any funds in this
account are automatically distributed, by operation of law, to The XXXX Fund of
the State of New York and are not available for distribution to any other party
or entity.
(b) Any payments made into this account subject to the terms and
conditions of this Agreement, will be disbursed to the Parties entitled thereto
within two business days after the expiration of the Option (unless the Option
Holder has claimed a breach of the covenants in Section 2 above) or the later to
occur of (a) the exercise of the Option or (b) if the Option is exercised, the
execution and delivery of all documents requested by the Option Holder pursuant
to Section 5 below.
(c) Any payments which are made with shares of stock of SLS
International, Inc., will be delivered at an agreed upon time and place.
(d) If the NL Grantors or the US Grantor fail to comply with the terms
of Section 2, then upon request of the Option Holder, the purchase price of the
Option shall be refunded from the escrow account to the Option Holder. If the
Option Holder does not exercise the Option, following the occurrence or the
Option Holder's discovery of a material adverse fact, event, change or
occurrence which, individually or together with any other fact, event, change or
occurrence, has or would reasonably be expected to have a material adverse
effect on the properties, operations, business, prospects, assets, results of
operations or financial condition of SA Sound B.V. or SA USA, Inc., then upon
request of the Option Holder, the purchase price of the Option shall be refunded
from the escrow account to the Option Holder.
5. Execution of Documents. If the Option Holder exercises the Option,
the NL Grantors will, as promptly as possible, take all action, execute and
deliver all documents and instruments, provide all information and take or
forbear from all such action which may reasonably be deemed necessary or
appropriate to transfer 100% of the shares of SA SOUND B.V. to the Option Holder
and to further carry out or achieve the purposes of this Agreement.
If the Option Holder exercises the Option, the US Grantor will, as
promptly as possible, take all action, execute and deliver all documents and
instruments, provide all information and take or forbear from all such action
which may reasonably be deemed necessary or appropriate to transfer 100% of the
shares of SA USA, Inc. to the Option Holder and to further carry out or achieve
the purposes of this Agreement.
6. Ownership and Transferability. The NL Grantors hereby declare and
guarantee that they are the legal and beneficial owners of 100% of the shares of
SA SOUND B.V., free and clear of any security interest, mortgage, pledge,
encumbrance, lien or restriction on transfer. The US Grantor hereby declares and
guarantees that he is the legal and beneficial owners of 100% of the shares of
SA USA, Inc., free and clear of any security interest, mortgage, pledge,
encumbrance, lien or restriction on transfer.
7. Liabilities. The NL Grantors hereby declare and guarantee that the
balance sheet of SA SOUND B.V., dated December 31, 2003, which was send to the
Option Holder via fax on January 23, 2004, was an accurate and complete
representation of the financial condition of SA SOUND B.V. on December 31, 2003,
and that subsequently no transactions and no assumptions of liability have
occurred or will occur before the Expiration of the Option, other than those
within its normal course of business.
The NL Grantors further declare and guarantee that SA SOUND B.V. has no
liabilities beyond its ordinary course of business or out of proportion with its
ordinary course of business other than those disclosed, has no contractual
obligations beyond its ordinary course of business or out of proportion with its
ordinary course of business other than those disclosed, has not received any
notice of claim and has no information or reason to believe that any notice of
claim is pending.
If the Option Holder exercises the Option, any and all obligations from
SA SOUND B.V. to B & B Beheer B.V. will become null and void by operation of
this Agreement and in consideration
of this Agreement, and B & B BEHEER B.V. will, as promptly as possible, execute
and deliver any and all documents and instruments reasonably necessary to effect
the same.
SLS INTERNATIONAL, INC. understands that the bank line of credit
provided by Rabobank to SA SOUND B.V. will automatically terminate and become
payable in full if there is any change in the shareholders of SA SOUND B.V. from
B & B BEHEER B.V. and/or CAMPEX HOLDING B.V. to any other party, including SLS
INTERNATIONAL, INC., except if the new party is acceptable to Rabobank. SLS
INTERNATIONAL, INC. further understands that the current line of credit provided
by Rabobank is guaranteed with a security deposit of EUR 50,000.-- and SLS
INTERNATIONAL, INC. hereby agrees that if the current credit relationship is
maintained with Rabobank, SLS INTERNATIONAL, INC. will substitute the existing
security deposit with its own security deposit. I.E., if the current credit
relationship is not maintained with Rabobank, SLS INTERNATIONAL, INC. agrees to
pay-off the line of credit in full, and if the current credit relationship is
maintained with Rabobank, SLS INTERNATIONAL, INC. agrees to substitute the
existing security deposit with its own security deposit.
The US Grantor hereby declares and guarantees that SA USA, INC. has no
liabilities and no contractual obligations of any kind whatsoever and has not
received any notice of claim and has no information or reason to believe that
any notice of claim is pending, except that SA USA, INC. has an existing account
payable to SA SOUND B.V. which is more than offset by the value of the current
inventory of SA USA, INC..
8. Separate Parties. Nothing contained in this Agreement shall be
construed to create a joint venture or partnership relation between the Parties,
and no Party shall have the authority to obligate or bind any other Party in any
manner whatsoever.
9. Severability. The Parties agree that if any provision of this
Agreement is held to be invalid in any jurisdiction, either by statute or by
judicial decision, then, with respect to such jurisdiction, and without
affecting the validity of the remainder of this Agreement, such provision shall
be deemed modified to comply with the law, or if modification is not possible,
such provision shall be deemed stricken from this Agreement, if necessary to
comply with the law.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto, their successors and assigns.
11. Governing Law and Jurisdiction. This Agreement, including any and
all rights and obligations created and assumed hereunder, shall be governed by
and construed in accordance with the laws of the State of New York, and the
Parties agree that the competent courts of the State of New York shall have
jurisdiction over any matter concerning or arising under this Agreement, and the
Parties hereby consent to any and all requisite jurisdiction.
12. Legal Fees. The Parties agree that in the event of legal action
between the Parties to this Agreement, each Party shall bear its own legal
expenses, unless this is in conflict with the applicable law or rules of
procedure.
13. Waivers. The delay or failure of any of the Parties to enforce
its/his rights under this Agreement shall not be deemed a continuing
modification or waiver thereof, and any of the Parties may, within the time
provided by applicable law, commence appropriate legal action to enforce any and
all such rights.
14. Integration and Modifications. This Agreement includes the entire
understanding between the Parties with respect to the subject matter contained
herein, and the terms and conditions of this Agreement can only be changed or
modified in a written amendment signed by all the Parties.
15. Multiple Copies. One or more copies of this Agreement may be
executed, and each such copy shall be deemed an original, but all such copies
together shall constitute one and the same instrument.
16. Headings. The paragraph headings of this Agreement are for
convenience of reference only and shall not affect its construction and
interpretation.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement or
caused it to be executed by its/his duly authorized representative, on the date
set forth above.
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B & B BEHEER B.V.
by: Xxxxx Xxxx
Directeur
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CAMPEX HOLDING B.V
by: Xxxxxx Xxxxxxx
Directeur
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SERGE VAN TUIJN
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SLS INTERNATIONAL, INC
by: Xxxx Xxxx
President
For purposes of the escrow provisions in Section 4 above:
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Xxxxxx Xxx Xxxx
