EXHIBIT 10.203
OPTION AGREEMENT
OPTION AGREEMENT (the "Agreement"), dated as of December 17, 2001
between Wilshire Technologies, Inc., a California corporation (the "Company"),
Trilon Dominion Partners, LLC, a Delaware limited liability company and majority
shareholder of the Company ("Trilon"), and E. I. du Pont de Nemours and Company,
a Delaware corporation (the "Optionee").
WHEREAS, the Company and Optionee entered into a Product
Development, Purchase and License Agreement, dated as of September 18, 2000 (the
"PDP&L Agreement"), and
WHEREAS, the Company as an inducement to Optionee to enter into
the PDP&L Agreement granted to the Optionee an option to purchase up to
2,000,000 shares of its common stock, no par value, of the Company, and certain
other rights on the terms and subject to the conditions set forth therein (the
"Original Option Agreement"), and
WHEREAS, the Company and the Optionee desire to cancel the
Original Option Agreement and enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. DEFINITIONS.
(a) "Debt" means (i) all obligations for borrowed money or
evidenced by bonds, debentures, notes or similar instruments; (ii) all
obligations for the deferred purchase price of property or services; and (iii)
all capital lease obligations.
(b) "Liquidation" means (i) any voluntary or involuntary
liquidation, dissolution or winding up of the Company, (ii) the sale of
substantially all of the Company's assets by the Company, or (iii) the
acquisition of the Company by another entity not affiliated with Trilon's
indirect parent company, Dominion Resources, Inc. (other than a mere
re-incorporation) by means of a merger or other form of corporate reorganization
in which the outstanding shares of this Company are exchanged for securities or
other consideration issued by or on behalf of the acquiring corporation.
(c) "Net Proceeds" means (i) gross proceeds received by the
Company, or, if the Liquidation does not involve payment to the Company, by
Trilon or its successor and any other then shareholder(s), as the result of a
Liquidation, minus (ii) any Debt of the Company not assumed or paid, directly or
indirectly, by another entity as the result of the Liquidation, minus (iii)
transaction costs expended by the Company in the Liquidation not paid to any
affiliate of Dominion Resources, Inc.
2. GRANT OF OPTION AND CANCELLATION OF ORIGINAL OPTION. The Company
hereby grants to Optionee an option (the "Option") to receive ten percent (10%)
of the Net Proceeds from a Liquidation at an exercise price of One Million
Dollars ($1,000,000) (the "Exercise Price"). The Company and Optionee each
acknowledge and agree that this Option supersedes and cancels the Original
Option Agreement and that the Original Option Agreement is no longer of force
and effect.
3. VALUING NET PROCEEDS. The Company shall determine the value of Net
Proceeds and provide its calculation to the Optionee pursuant to Paragraph 4(c).
In the event the Optionee does not agree with the Company's valuation of Net
Proceeds, it may (a) in the case of non-cash Net Proceeds, retain an independent
appraiser, at its own expense, selected by the Company and the Optionee to
examine the Company's valuation of Net Proceeds or (b) in the case of cash
proceeds, prepare its own calculation of Net Proceeds. If the value of Net
Proceeds determined by the preceding sentence differs materially from the value
determined by the Company, the parties will attempt in good faith to agree upon
a value. If the parties are unable to agree upon a value within 30 days from the
receipt of the Liquidation notice by the Optionee, the parties shall rely on the
provisions of Paragraph 9 to settle the dispute.
4. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. In the event of a Liquidation prior to the
Outside Exercise Date, the Option shall be exercisable on the day the
Liquidation occurs. Otherwise, the Option shall only be exercisable on the day
before the Outside Exercise Date. The Outside Exercise Date shall mean December
31, 2004, unless the Company, has, in its sole discretion, extended such Outside
Exercise Date in writing at least fifteen (15) calendar days prior to the
original or then applicable Outside Exercise Date.
(b) METHOD OF EXERCISE. This Option shall be exercisable by
written notice which shall state Optionee's election to exercise the Option.
Such written notice shall be signed by Optionee and shall be delivered to the
Company prior to the Outside Exercise Date. The written notice shall be
accompanied by payment of the Exercise Price. This Option shall be deemed to be
exercised upon receipt by the Company of such written notice accompanied by the
Exercise Price. If the Option is exercised on the date of Liquidation, prior to
the Outside Exercise Date, then the Option shall be deemed to be exercised upon
receipt of written notice by the Company on the date of Liquidation. If the
Option is exercised on the Liquidation date, the Exercise Price shall be
deducted from the Optionee's percentage of Net Proceeds.
(c) NOTICE. Not less than 20 calendar days before a Liquidation
is to occur, the Company or its successor shall provide the Optionee with
written notice of the anticipated date of Liquidation and the Company's
calculation of Net Proceeds, or good faith estimate thereof if final Net
Proceeds are not determinable at such time.
5. METHOD OF PAYMENT. Payment of the Exercise Price shall be by wire
transfer of federal funds to a bank designated by the Company.
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6. MODIFICATION OR AMENDMENT. This Agreement may be modified or amended
only by written agreement executed and delivered by duly authorized officers of
the respective parties.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
8. GOVERNING LAW AND WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE OTHER DOCUMENTS REFERRED TO IN THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARY AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
9. BINDING ARBITRATION. In the event of a dispute between the parties
arising out of or relating to this Agreement, either party may upon notice to
the other submit all disputes, claims, questions or differences to be finally
settled by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Commercial Arbitration Rules and judgment
on the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Each party shall bear its own costs and expenses and an
equal share of the arbitrator(s) and administrative fees of arbitration. The
place of arbitration shall be Chicago, Illinois. The arbitrator(s) will have no
authority to award punitive or other damages not measured by the prevailing
party's actual damages, except as may be required by statute.
10. NO LITIGATION. No litigation or other proceeding may ever be
instituted at any time in any court for the purpose of adjudicating,
interpreting or enforcing any of the rights or obligations of the parties hereto
or any rights or obligations relating to the subject matter hereof, whether or
not covered by the express terms of this Agreement or for the purpose of
adjudicating a breach or determination of the validity of this Agreement, or for
the purpose of appealing any
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decision of the arbitrator, except a proceeding instituted for the sole purpose
of having the award or judgment of the arbitrator entered and enforced or to
seek an injunction (but not damages in connection therewith) in circumstances
where such relief is available.
11. NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, or by
facsimile:
if to the Optionee:
Global Segment Manager - Gloves
DuPont Apparel & Textile Sciences
Chestnut Run Plaza 728/Room 1407
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Mr. ▇▇▇▇ ▇▇▇▇▇▇
DuPont Apparel & Textile Sciences
Chestnut Run Plaza 728/Room 2225
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Wilshire Technologies
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Seidenwurm & ▇▇▇▇▇, LLP
▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
12. ENTIRE AGREEMENT. This Agreement (including any exhibits and
schedules hereto) constitutes the entire agreement, and supersede all other
prior agreements,
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understandings, representations and warranties both written and oral, among the
parties, with respect to the subject matter hereof.
13. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
confer upon any person or entity other than the parties hereto any right or
remedies hereunder.
14. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
15. SPECIFIC PERFORMANCE. The parties hereto each acknowledge that, in
view of the uniqueness of the subject matter hereof, the parties hereto would
not have an adequate remedy at law for money damages if this Agreement were not
performed in accordance with its terms, and therefore agree that the parties
hereto shall be entitled to specific enforcement of the terms hereof in addition
to any other remedy to which the parties hereto may be entitled at law or in
equity.
16. NO PARTNERSHIP. Nothing herein nor the acts of the parties hereto
shall be construed to create a partnership or joint venture between Optionee and
the Company or any other person.
17. ASSIGNMENT. This Agreement is not assignable by either party;
provided, however, that Optionee may assign its rights and obligations under
this Agreement to any of its direct or indirect Subsidiaries. Any purported
assignment made in contravention of this Agreement shall be null and void.
"Subsidiary" means any entity, whether incorporated or unincorporated, of which
at least fifty percent (50%) of the securities or ownership interests having by
their terms ordinary voting power to elect fifty percent (50%) of the board of
directors or other persons performing similar functions is directly or
indirectly owned or controlled by such party or by one or more of its respective
Subsidiaries or by such party and any one or more of its respective
Subsidiaries.
18. CAPTIONS. The Section captions herein are for convenience of
reference only and do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by duly authorized officers of the parties hereto as of the date
hereof.
WILSHIRE TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and CEO
TRILON DOMINION PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
E. I. DU PONT DE NEMOURS AND COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Global Segment manager-Gloves
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