EXHIBIT 7(9)
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement (this Agreement) is made on the
date written below, by and among Xxxx X. Xxxxxxxxx ("Xxxx") and Xxxx X.
Xxxxxxxxx ("Xxxx").
In Consideration of the mutual promises, covenants and conditions herein
contained and for other good and valuable consideration, the parties hereto
agree as follows.
1. DEFINITIONS. Certain terms used herein are defined as follows:
A "Company" shall mean Action Performance Companies, Inc., an Arizona
corporation
B "Escrow Agent" means the mutually agreeable third party who will
hold the Shares in escrow in accordance with this Agreement
C "Escrow Agreement" means the written agreement which will be
negotiated and executed in good faith by the parties hereto and the
Escrow Agent, pursuant to which the Escrow Agent will hold the
Shares in Escrow in accordance with this Agreement.
D "Immediate Family" means any spouse, child, grandchild, parent,
brother, or sister of a Holder
E "Shares" means any shares of capital stock of the Company which Xxxx
will receive directly or indirectly (i.e., in partnership or other
entity) pursuant to the Property Settlement Agreement dated January
21, 2005 ("Settlement Agreement") and all securities into which such
Shares may be converted or reclassified as a result of any merger,
consolidation, stock split, stock dividend, or other
recapitalization of the Company, whether now owned or hereafter
acquired
2. RESTRICTIONS ON TRANSFER. Xxxx shall not sell or engage in any transaction
which has resulted in or will result in a change in the beneficial or
record ownership of' any Shares, including without limitation, a voluntary
or involuntary sale, assignment, transfer, pledge, hypothecation,
encumbrance, disposal, loan, gift, attachment or levy (a Transfer), except
as provided in this Agreement, and any such Transfer of Shares or
attempted Transfer of Shares in contravention of this Agreement shall be
void and ineffective for any purpose and shall not confer on any
transferee or purported transferee any rights whatsoever
3. RIGHT OF FIRST REFUSAL.
A Each time Xxxx proposes to Transfer (or is required by operation of
law or other involuntary transfer) any or all of the Shares during
the term of this Agreement, she shall first offer such Shares to
Xxxx in accordance with the following provisions.
i Xxxx shall deliver a written notice (a Notice) to Xxxx c/o
Action Performance Headquarters Office or such other address
as Xxxx shall designate in writing to Xxxx, stating - (A) her
bona fide intention to Transfer such Shares, (B) the name and
address of the proposed transferee and the purchase price, if
a private transaction, (C) the number of Shares to be
transferred, and (D) if a market sale, the purchase price per
Share for which Xxxx proposes to Transfer such Shares (which
shall be the closing market price of the Shares as of the date
the Notice is sent or/if the market is not open on that date,
then the closing market price on the last day the market was
open prior to the date the Notice was sent)
ii Within forty-eight hours (48) [two (2) business days] after
receipt of the Notice, Xxxx or his designee shall have the
first right to purchase or obtain such Shares, upon the price
and terms of payment designated in the Notice. If the Notice
provides for a private sale with the payment of non-cash
consideration, Xxxx, at his option, may pay the consideration
in cash equal to his good faith estimate of the present fair
market value of the non-cash consideration offered once Xxxx
receives a confirmation that Xxxx has been notified of the
intent to Transfer Shares, Xxxx can Transfer such Shares after
the Forty-eight (48) hour period has expired if Xxxx does not
receive a response.
iii If Xxxx or his designees elects not to purchase or obtain all
of the Shares designated in the Notice, then Xxxx xxx Transfer
the Shares referred to in the Notice which are not purchased
by Xxxx, providing such Transfer (A) is completed within three
(3) business days after the expiration of Fred's right to
purchase or obtain such Shares and (B) is made at the price
and terms designated in the Notice if a private sale, or sold
at the then current market price if a market sale. If such
Shares are not so transferred, Xxxx must give notice in
accordance with this paragraph prior to any other or
subsequent Transfer of such Shares Xxxx shall promptly provide
Xxxx written evidence of any such sale to third parties
4. PAYMENT OF PURCHASE PRICE. Payment of the purchase price for the Shares
purchased shall be made, at the option of Xxxx or his assignee(s), in
cash, check or wire transfer within three (3) days after the exercising of
the Option and contemporaneous with the delivery of the certificates
representing the Shares being purchased
5. ESCROW. Promptly upon execution of this Agreement, the certificates
representing the Shares shall be delivered to the Escrow Agent and held by
it in accordance with this Agreement and the Escrow Agreement
6. TERMS OF AGREEMENT. The restrictions on Transfer of Shares set forth in
this Agreement shall terminate upon the determination of Xxxx that this
Agreement shall be terminated, on the date specified in the Settlement
Agreement, or ten (10) years from the date hereof, which ever occurs first
7. FURTHER ASSURANCES. Each party hereto agrees to perform any and all
further acts and to execute and deliver any documents which may reasonably
be necessary to carry out the provisions of this Agreement
8. MODIFICATION. This Agreement may be amended only by the written agreement
of the parties
9. WILL PROVISIONS. Xxxx agrees to insert in her will, or to execute a
codicil thereto, directing and authorizing her executor to fulfill and
comply with the provisions hereof.
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10. NOTICE. Any notice required or permitted hereunder shall be delivered
in person or sent by telecopier, air courier or certified mail, return
receipt requested, postage and fees prepaid in all cases, to the
address of the signatory shown on the signature page hereto, or to such
other address as will have been specified by prior written notice to
the sending party Notice shall be effective upon delivery if it is
hand-delivered; upon receipt if it is transmitted by telecopier, air
courier or registered, certified or express mail, upon expiration of
the third business day after deposit in the United States mail if
mailed from and to an address in the United States, and upon expiration
of the tenth business day after deposit in the United States mail if
mailed from or to an address outside the United States
11. SUCCESSION. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and upon their permitted successors in interest of
any kind whatsoever, their heirs, executors, administrators, and personal
representatives.
12. GOVERNING LAW. This Agreement will be governed in all respects by the laws
of the State of Arizona as such laws are applied to agreements between
Arizona residents entered into and to be performed entirely within
Arizona, without regard to conflicts of law (principles) The parties
hereby consent to the exclusive jurisdiction of the state or federal
courts located in the State of Arizona County of Maricopa, for the
resolution of any disputes arising out of this Agreement.
13. ENFORCEMENT. Either party's failure to enforce any provision or provisions
of this Agreement shall not in any way be construed as a waiver of any
such provision or provisions, nor prevent that party thereafter from
enforcing each and every other provision of this Agreement. The rights
granted both parties herein are cumulative and shall not constitute a
waiver of either party's right to assert all other legal remedies
available to it under the circumstances
14. DAMAGES. The parties acknowledge that money damages may not be an adequate
remedy for violations of this Agreement and that any party, may, in its
sole discretion, apply to a court or competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just
and proper to enforce this Agreement or to prevent any violation hereof
and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief in appropriate circumstances
15. AUTHORITY. Each party to this Agreement represents that such party has
duly authorized, executed and delivered this Agreement and that this
Agreement is a valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
16. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which will be an original, but all of which together will
constitute one and the same instrument
17. SOLE AGREEMENT. This Agreement and the Settlement Agreement constitutes
the entire agreement and understanding of the parties hereto with respect
to the subject matter hereof and supercedes any and all prior or
contemporaneous agreements and understandings pertaining thereto whether
oral or written
18. CONSTRUCTION. The titles of the sections of this Agreement are for
convenience of reference only and are not to be considered in construing
this Agreement. The language of this Agreement shall be construed as to
its fair meaning and not strictly for or against any party.
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19. SEVERABILITY. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be
enforceable in accordance with its terms and interpreted as if such
provisions were as excluded
20. ATTORNEY FEES. In the event that any dispute among the parties hereto
should result in litigation or arbitration, the prevailing party in such
dispute shall be entitled to recover from the other party all reasonable
fees, costs and expenses of litigation and arbitration
/s/ Xxxx X. Xxxxxxxxx
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XXXX X. WAGENALS
Address 0000 X. Xxxxxxx Xx.
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Xxxxx, XX 00000
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Dated: 1-20-05
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/s/ Xxxx Xxxxxxxxx
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XXXX WAGENALS
Address 0000 X. 00xx Xx.
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Xxxxxxxx Xxxxxx, XX 00000
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Dated: 1-21-05
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