EXHIBIT 10.17
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT ("Agreement") is made and entered into as of
May 10, 1996 by and between XXXXXXX XXXXX MEZZANINE CAPITAL FUND, L.P., an
Illinois limited partnership ("Xxxxx"); and EAGLE PLASTICS, INC., a Nebraska
corporation ("Eagle"), PACIFIC PLASTICS, INC., an Oregon corporation
("Pacific"), ARROW PACIFIC PLASTICS, INC., a Utah corporation ("Arrow"), and
EAGLE PACIFIC INDUSTRIES, INC., a Minnesota corporation ("EPII") (Eagle,
Pacific, Arrow and EPII are sometimes referred to herein collectively as the
"Company").
R E C I T A L S
A. Pursuant to that certain Plan of Recapitalization dated as of
March 16, 1995 by and among Xxxxx, Eagle and EPII (f/k/a Black
Hawk Holdings, Inc.), (1) the parties entered into a Debenture
Acquisition Agreement of even date therewith (the "Debenture
Acquisition Agreement"), (2) Xxxxx was issued (a) a senior
subordinated debenture of Eagle having a principal amount of
$7,500,000 (the "Debenture"), the obligations of which were
guaranteed by EPII pursuant to a guarantee of even date
therewith from EPII (the "Guarantee"), (b) a warrant to
purchase 100,000 shares of the common stock of EPII at $3.00
per share (the "Warrant") and (c) 210,000 shares of the common
stock of EPII and (3) Xxxxx was granted, among other things,
the right to receive certain cash payments, $970,000 of which
remains outstanding and is due to be paid on or before
September 1, 1996 (the "Deferred Cash Payment").
B. As an inducement for Xxxxx'x consent to a refinancing of the
Company's senior indebtedness by Fleet Capital Corporation
(the "New Senior Lender") to be consummated on the date
hereof, the parties hereto desire to amend selected terms of
the Debenture Acquisition Agreement and the Debenture in
exchange for certain financial accommodations to Xxxxx
(including, without limitation, the prepayment of the Deferred
Cash Payment and a partial prepayment of amounts due under the
Debenture), all as hereinafter set forth.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements set forth herein,
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are
incorporated herein by reference and made a part of this
Agreement.
2. Amendment of the Debenture Acquisition Agreement and the
Debenture. Subject to the Company's performance of its
obligations to Xxxxx hereunder on the date hereof, Xxxxx
hereby consents to the consummation of the refinancing
transaction contemplated by that certain Loan and Security
Agreement of even date herewith (the "Credit Agreement") by
and between the New Senior Lender and the Company. To
facilitate the consummation of such transaction, the parties
hereto agree to amend the terms of the Debenture Acquisition
Agreement and the Debenture as follows:
(a) The Debenture Acquisition Agreement shall be amended
as follows:
(i) The following (and only the following)
definitions contained in Section 1.1 of the Debenture
Acquisition Agreement shall be deleted in their entirety and
replaced with the following:
"New Guarantee shall mean (a) the guarantee
dated as of March 16, 1995, executed by one of the
Guarantors in favor of Purchaser in the form of
Exhibit D hereto, and (b) the guarantee dated as of
May 10, 1996, executed by the other Guarantors in
favor of Purchaser.
Purchase Agreement shall mean (a) that
certain agreement dated September 16, 1993 among
Acquisition Corp., Eagle Pacific Industries, Inc.
and, prior to the merger, Eagle Plastics,
Incorporated, and the individual sellers named
therein, and (b) exclusively for purposes of Section
5.1(q) and 5.2(v) hereof, any other agreement
hereafter entered into by Borrower or any Guarantor
(with Purchaser's prior consent, as applicable,
hereunder) to acquire any interest in any business
(whether by a purchase of assets, purchase of stock,
merger or otherwise) or enter into any joint venture
with any Person.
Registration Rights Agreement shall mean the
registration rights agreement between Eagle Pacific
Industries, Inc. and Purchaser of even date herewith
in the form of Exhibit E hereto, as hereafter amended
from time to time.
Related Transactions Documents shall mean
the Plan of Recapitalization, this Agreement, the
Senior Subordinated Debenture, the New Guarantee, the
Registration Rights Agreement, the Common Stock
Warrant, the Subordinated Loan Documents, the
Purchase Agreement, the Senior Loan Agreement and any
and all other documents, agreements, certificates and
instruments executed or delivered to Purchaser in
connection herewith or therewith (including, without
limitation, any amendments or modifications thereto).
Restricted Investments shall mean all
Investments in any Person or in any property, except
(a) Investments in one or more subsidiaries of a
Guarantor to the extent existing on May 10, 1996, (b)
Investments constituting Senior Indebtedness, (c)
Investments that constitute loans or advances (which
are permitted by the terms of the Senior Loan
Agreement) by Borrower to any Guarantor or by any
Guarantor to Borrower or any other Guarantor, (d)
Investments resulting from the acquisition of shares
of capital stock in Borrower by Eagle Pacific
Industries, Inc. pursuant to that certain Eagle Stock
Agreement dated December 17, 1993 by and among Eagle
Pacific Industries, Inc. (f/k/a Black Hawk Holdings,
Inc.), Borrower, Xxxxx X. Xxxxxxx, Xxxxxx Xxxxx Xxxxx
and Xxxxx Xxxxxxx (the "Eagle Stock Agreement") as in
effect on May 10, 1996, (e) property acquired for the
business use of Borrower or any Guarantor and not for
investment in other businesses, (f) current assets
arising from the purchase or sale of goods and
services in the ordinary course of business, (g)
securities issued or fully guaranteed or insured by
the United States of America or any agency thereof
(supported by the full faith and credit of the United
States of America) and maturing within one year, (h)
time deposits and certificates of deposits of a
commercial bank organized under the laws of the
United States of America having capital and surplus
in excess of $100,000,000 (or up to the Federal
Deposit Insurance Corporation's insured amount) and
maturing within one year, (i) commercial paper of any
United States' corporation rated at least A-1 by
Standard & Poor's Corporation or at least P-1 by
Xxxxx'x Investors Service, Inc. and maturing within
one year, and (j) Investments in money market funds
substantially all of whose assets are comprised of
securities of the type described in (g) through (i)
above.
Senior Indebtedness shall mean any and all
obligations, indebtedness and liabilities now or
hereafter owing or due from Borrower and Guarantors
to Senior Lender under the Senior Loan Agreement;
provided, however, that Senior Indebtedness shall not
include:
(a) increases in the principal
amount of the indebtedness of Borrower to
Senior Lender in excess of Twenty-Eight
Million Seven Hundred Fifty Thousand Dollars
($28,750,000) minus all principal payments
made in respect of the Term Loan (as defined
in the Senior Loan Agreement);
(b) increases in the portion of
interest that accrues in respect of the
indebtedness of Borrower to the Senior
Lender at a rate in excess of the otherwise
applicable interest rate (or default rate)
(including any adjustable rate or rate to be
reset pursuant to the terms of the Senior
Loan Agreement) provided for under the
Senior Loan Agreement as in effect on May
10, 1996; or
(c) increases in the fees, charges
or expenses (regardless of when incurred)
provided for under the Senior Loan Agreement
as in effect on May 10, 1996, which
increases exceed in the aggregate Two
Hundred Fifty Thousand Dollars ($250,000).
Senior Lender shall mean Fleet Capital
Corporation or any successor thereto.
Senior Loan Agreement shall mean the Loan
and Security Agreement dated May 10, 1996 by and
between Senior Lender, Borrower and Guarantors. The
Senior Loan Agreement shall include all other
documents, agreements, certificates and instruments
attached thereto, referred to therein or delivered in
connection therewith as any or all of the foregoing
may be supplemented or amended from time to time in
accordance with the provisions hereof."
(ii) Section 2.2 of the Debenture Acquisition
Agreement shall be deleted in its entirety and replaced with
the following:
"Subject to Section 2.4 hereof, on May 10,
1999, Borrower shall repay the principal amount of
the Senior Subordinated Debenture in full, together
with all Fixed Interest."
(iii) The following sentence shall be inserted at the
end of Section 2.4(c):
"In connection with any prepayments, Purchaser shall,
and is hereby authorized by Borrower to, endorse on
the schedules annexed to the Senior Subordinated
Debenture appropriate notations regarding the Senior
Subordinated Debenture as specifically provided
therein, which notations shall be presumed correct
until the contrary is established."
(iv) Sections 5.1(i), 5.1(j) and 5.2(t) of the
Debenture Acquisition Agreement shall be deleted in their
entirety.
(v) The following shall be inserted at the end of
Section 5.1 of the Debenture Acquisition Agreement as new
subsections (t) through (v) thereof:
"(t) Consolidated Adjusted Tangible Net
Worth. Borrower and Guarantors shall maintain at all
times within each of the following periods, a
Consolidated Adjustable Tangible Net Worth (as
defined in the Senior Loan Agreement) of not less
than the amount shown below for the period
corresponding thereto:
Period Amount
------ ------
June 30, 1996 through and ($1,200,000)
including September 29, 1996
September 30, 1996 through and ($300,000)
including December 30, 1996
December 31, 1996 through and $0
including March 30, 1997
March 31, 1997 through and $100,000
including June 29, 1997
June 30, 1997 through and $1,100,000
including September 29, 1997
September 30, 1997 through and $2,000,000
including December 30, 1997
December 31, 1997 through and $2,300,000
including March 30, 1998
March 31, 1998 through and $2,400,000
including June 29, 1998
June 30, 1998 through and $3,400,000
including September 29, 1998
September 30, 1998 through and $4,300,000
including December 30, 1998
December 31, 1998 through and $4,600,000
including March 30, 1999
March 31, 1999 through and $4,700,000
including each fiscal quarter
thereafter
(u) Consolidated Net Cash Flow. Borrower and
Guarantors shall achieve Consolidated Net Cash Flow
(as defined in the Senior Loan Agreement) for each of
the periods listed below equal to or greater than the
amount set forth opposite such period:
Period Amount
------ ------
January 1, 1996 through and $135,000
including June 30, 1996
January 1, 1996 through and $585,000
including September 30, 1996
January 1, 1996 through and $450,000
including December 31, 1996
January 1, 1997 through and ($550,000)
including March 31, 1997
January 1, 1997 through and $135,000
including June 30, 1997
January 1, 1997 through and $585,000
including September 30, 1997
January 1, 1997 through and $450,000
including December 31, 1997
January 1, 1998 through and ($550,000)
including March 31, 1998
January 1, 1998 through and $135,000
including June 30, 1998
January 1, 1998 through and $585,000
including September 30, 1998
January 1, 1998 through and $450,000
including December 31, 1998
January 1, 1999 through and ($550,000)
including March 31, 1999
(v) Senior Interest Coverage Ratio. Borrower
and Guarantors shall achieve, at the end of each
fiscal quarter within the term hereof, a Senior
Interest Coverage Ratio (as defined in the Senior
Loan Agreement) equal to or greater than the ratio
shown below for the quarter corresponding thereto:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31 1.45 to 1
June 30 3.15 to 1
September 30 4.05 to 1
December 31 2.15 to 1"
(vi) The following shall be inserted at the end of
Section 5.2(a) of the Debenture Acquisition Agreement as new
subsections (iv) through (viii) thereof:
"(iv) Indebtedness for assets purchased
which is secured by a purchase money lien and which,
when aggregated with the principal amount of all
other such Indebtedness and Capitalized Lease
Obligations at the time outstanding, does not exceed
(i) $1,250,000 until the capitalized leases listed on
Exhibit K to the Senior Loan Agreement are retired
and (ii) $400,000 thereafter;
(v) Indebtedness outstanding under that
certain Redevelopment Contract between the City of
Hastings, Nebraska, and Guarantor, and related
promissory notes as in effect on May 10, 1996;
(vi) Indebtedness incurred in connection
with the acquisition of approximately 30 acres of
vacant land in Xxxxxxx, Oregon, in a principal amount
not to exceed $103,000;
(vii) Indebtedness outstanding under that
certain Promissory Note and Stock Pledge Agreement
dated as of July 10, 1995 between Eagle Pacific
Industries, Inc., Pacific Acquisition Corp., Pacific
Plastics, Inc. and the selling shareholder
signatories thereto, as in effect on May 10, 1996;
and
(viii) Indebtedness not included in
subsections (i) through (vii) above which does not
exceed at any time, in the aggregate, the sum of
$250,000."
(vii) The clause "its fiscal year does not exceed
$175,000" at the end of Section 5.2(d) of the Debenture
Acquisition Agreement shall be deleted and replaced with "any
current or future period of 12 consecutive months does not
exceed $500,000".
(viii) The first two sentences of Section 5.2(g) of
the Debenture Acquisition Agreement shall be deleted in their
entirety and replaced with the following:
"Neither Borrower nor any Guarantor shall
directly or indirectly (i) declare or pay any
Dividends on its capital stock, (ii) make or incur
any liability to make any Stock Purchase or (iii)
make any Restricted Investments. Notwithstanding the
foregoing and provided that, in any of the following
cases, no Event of Default has then occurred and is
continuing or would result from the taking of such
action, Borrower and/or Guarantor may: (A) pay up to
$195,000 in annual Dividends on Eagle Pacific
Industries, Inc.'s convertible preferred stock
outstanding on May 10, 1996 (the "EPII Preferred"),
until such time as the EPII Preferred is converted as
provided herein; (B) convert all or a portion of the
shares of EPII Preferred into common stock of Eagle
Pacific Industries, Inc. at a conversion price which
is not less than $1.75 per share; and (C) acquire the
shares of capital stock of Borrower held by Xxxxx X.
Xxxxxxx and Xxxxxx Xxxxx Xxxxx as of May 10, 1996
pursuant to the Eagle Stock Agreement as in effect on
May 10, 1996, provided that the aggregate purchase
price for such shares does not exceed (x) $575,000
for the calendar year ending December 31, 1996, and
(y) the lesser of (1) the purchase price per share of
such common stock multiplied by 157,000 shares, or
(2) $1,000,000, for each calendar year ending
December 31, 1997 and December 31, 1998."
(ix) The following paragraph shall be inserted at the
end of Section 5.2 of the Debenture Acquisition Agreement as
Section 5.2(w) thereof:
"(w) Capital Expenditures. Neither Borrower
nor any Guarantor shall, unless otherwise consented
to by Purchaser in writing, make Capital Expenditures
(as defined in the Senior Loan Agreement) which, in
the aggregate, as to Borrower and Guarantors during
any fiscal year of Borrower, exceeds the amount set
forth opposite such fiscal year in the following
schedule:
Fiscal Year Ending Capital Expenditure
------------------ -------------------
December 31, 1996 $2,850,000
December 31, 1997 $1,650,000
December 31, 1998 and
each subsequent fiscal year $1,650,000"
(x) The clause "or any other agreement to which
Purchaser and either Borrower or Guarantor are parties" shall
be inserted following the term "Senior Subordinated Debenture"
in subsection (iii) of Section 6.1(a) of the Debenture
Acquisition Agreement.
(xi) Section 6.4 of the Debenture Acquisition
Agreement shall be deleted in its entirety and replaced with
the following:
"Subordination. This Agreement (including,
without limitation, exercise of the rights set forth
in Section 6.2 hereof) and the Senior Subordinated
Debenture are subject to certain subordination
provisions set forth in that certain Intercreditor
and Subordination Agreement dated as of May 10, 1996
by and between Purchaser and the Senior Lender and
all of the terms and provisions thereof are
incorporated by reference into this Agreement and
made a part hereof."
(xii) All references in the Debenture Acquisition
Agreement to the defined term "Guarantor" shall be construed
as a reference to EPII, Pacific and Arrow collectively or, as
the context may require, any one or more of EPII, Pacific and
Arrow.
(b) The Debenture shall be amended as follows:
(i) The first sentence of Section 3 of the Debenture
shall be deleted in its entirety and replaced with the
following:
"The aggregate principal of this Debenture
shall be payable on May 10, 1999 together with all
Fixed Interest."
(ii) Section 6 of the Debenture shall be deleted in
its entirety and replaced with the following:
"Subordination. This Debenture shall be
subject to the terms and provisions of that certain
Intercreditor and Subordination Agreement dated as of
May 10, 1996 by and between Payee and Senior Lender."
3. Performance of the Company's Obligations. On the date hereof:
(a) Eagle and EPII shall pay to Xxxxx in cash, by wire
transfer to the account specified in Section 2.5 of the Debenture
Acquisition Agreement, $970,000 as a prepayment in full of the Deferred
Cash Payment;
(b) Eagle shall pay to Xxxxx in cash, by wire transfer to the
account specified in Section 2.5 of the Debenture Acquisition Agreement
the following:
(i) all accrued Fixed Interest as defined in and
payable pursuant to the Debenture through and including the
date hereof; and
(ii) $3,000,000, to be treated as a partial
prepayment against the outstanding principal amount of the
Debenture;
(c) that certain Registration Agreement dated March 16, 1995
(the "Registration Agreement") by and between EPII and Xxxxx shall be
amended as set forth in Section 5 hereof;
(d) the Warrant shall be amended as set forth in Section 6
hereof;
(e) the applicable parties shall concurrently herewith execute
and deliver the following agreements and instruments (the form and
substance of which are satisfactory to Xxxxx and its counsel):
(i) a Guarantee executed by Pacific and Arrow in
favor of Xxxxx, pursuant to which Pacific and Arrow guarantee
Eagle's obligations under the Debenture Acquisition Agreement
and the Debenture;
(ii) a Warrant in favor of Xxxxx, exercisable for
215,000 shares of common stock of EPII at an exercise price of
$3.25 per share (the "New Common Stock Warrant");
(iii) an Intercreditor and Subordination Agreement by
and between Xxxxx and the New Senior Lender;
(iv) a Co-sale Agreement by and between Xxxxx and
Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xxxxxxx
X. Xxxxx and the Spell Family Foundation;
(v) an Irrevocable Proxy by Xxxxx in favor of EPII;
(vi) the written opinion of Xxxxxxxxxx & Xxxxx, P.A.,
counsel to the Company;
(vii) certified copies of all documents evidencing
corporate action taken by the Company with respect to this
Agreement and the other matters contemplated hereby; and
(viii) a certificate, signed by the secretary or an
assistant secretary of EPII, certifying as to (A) the names of
the officers of the Company authorized to sign the
above-referenced agreements and instruments and all other
documents and instruments executed and/or delivered in
connection herewith or therewith, (B) specimens of the true
signatures of such officers, on which Xxxxx may conclusively
rely, (C) the truth and correctness of that certain Eagle
Stock Agreement dated December 17, 1993, between Eagle Pacific
Industries, Inc., Borrower, Xxxxx X. Xxxxxxx, Xxxxxx Xxxxx
Xxxxx and Xxxxx Xxxxxxx as in effect on the date hereof and
(D) the truth and completeness of documents and instruments
executed and/or delivered in connection with (1) the
refinancing of the senior indebtedness by the New Senior
Lender, (2) the sale of common stock of EPII to Okabena
Partnership K ("Okabena"), (3) the sale of the common stock of
EPII to Xxxxxxx Capital Management and (4) the amendment to
the registration and stock repurchase rights of Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxx
Xxxxxxxx.
4. Affirmation of Guarantee. EPII hereby acknowledges that the
Debenture Acquisition Agreement is being amended hereby and
hereby also acknowledges and affirms that (a) the Guarantee is
in full force and effect and the liability of EPII as
Guarantor under the Guarantee continues in accordance with the
terms of the Guarantee and is in no way affected or impaired
by such amendment to the Debenture Acquisition Agreement, (b)
Xxxxx'x agreement to such amendment is in Xxxxx'x sole
discretion, (c) Xxxxx is not required to provide notice to
anyone of such amendment and (d) Xxxxx'x provision of such
notice to EPII, as guarantor, shall not operate as a waiver of
Xxxxx'x right to agree to further amendments in its sole
discretion without notice to EPII or any other person that is
or shall be a guarantor of the Company's obligations under the
Debenture Acquisition Agreement.
5. Amendment of the Registration Agreement. The parties hereto
agree to amend the terms of the Registration Agreement as
follows:
(a) Section 1(c) of the Registration Agreement shall be
deleted in its entirety and replaced with the following:
"REGISTRABLE SHARES" shall mean (i) the 210,000
Shares of Company Common Stock issued to the Investor under
the Plan of Recapitalization, (ii) the 225,000 Shares of
Company Common Stock issued to the Investor under that certain
Subordinated Loan Agreement dated December 17, 1993 by and
among the Investor, the Company and Eagle Plastics, Inc.,
(iii) up to 100,000 Shares of Company Common Stock that may be
issued to the Investor upon exercise of the Warrant, (iv) up
to 215,000 Shares of Company Common Stock that may be issued
to the Investor upon exercise of that certain Warrant issued
to the Investor under that certain Amendment Agreement dated
as of May 10, 1996 by and between the Investor, the Company
and certain other parties thereto (the "New Warrant") and (v)
any further securities issued with respect thereto upon any
stock split, stock dividend, recapitalization or similar
event, so long as such shares or other securities are owned by
the Investor or any other person to whom the Investor shall
assign all or a portion of its rights hereunder.
(b) Section 3(a) of the Registration Agreement shall be
amended by deleting the clause "On a one-time basis only," in the first
sentence thereof and replacing it with the clause "On no more than two
occasions,".
(c) Clause (1) of Section 3(b) of the Registration Agreement
shall amended by deleting the words "of the issuance of the Investor's
Shares" and replacing them with the date "May 10, 1996".
(d) The following Clause (3) of Section 3(b) of the
Registration Agreement shall be inserted at the end of Section 3(b)
before the ".":
"; and (3) three years from the earlier of complete
exercise or termination of the New Warrant with respect to the
Shares of Common Stock issuable upon exercise of the New
Warrant"
6. Amendment of the Warrant. The parties hereto agree to amend
the terms of the Warrant as follows:
(a) Section 5(a) of the Warrant shall be amended by inserting
the parenthetical "(including the maximum number of shares of Common
Stock issuable in respect of any securities convertible into Common
Stock)" immediately after the phrase "prior to such event" in the
fourth line following clause (iii).
(b) Section 5(b) of the Warrant shall be amended by adding the
following at the end of Section 5(b) before the ".":
"; provided, however, that no such adjustment in the Warrant
Exercise Price shall be made upon the issuance of shares of
Common Stock pursuant to (i) options, warrants, convertible
securities and other rights to acquire shares listed on
Schedule 1 to that certain Amendment Agreement dated May 10,
1996 by and between Xxxxx, the Company, Eagle Plastics, Inc.,
Pacific Plastics, Inc. and Arrow Pacific Plastics, Inc. or
(ii) the conversion or exercise into shares, and related
issuance, of Common Stock pursuant to any warrant, option or
other right to acquire shares of Common Stock that, upon the
issuance of such warrant, option or other right did not
require an adjustment to the Warrant Exercise Price pursuant
hereto."
7. Representations and Warranties of the Company. As a further
inducement for Xxxxx to consent to the refinancing of the
Company's senior indebtedness by the New Senior Lender, the
Company hereby represents and warrants to Xxxxx that:
(a) The Company (and each of them) has the requisite corporate
power and authority to execute, deliver and carry out this Agreement,
all other agreements and instruments contemplated or required by the
provisions thereof and to be executed, delivered or carried out by the
Company (or any of them) (collectively, the "Ancillary Agreements") and
the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the
Ancillary Agreements, and the consummation by the Company of the
transactions contemplated hereby or thereby has been duly authorized by
all necessary corporate action and other consents, approvals and the
like required on the part of the Company.
(c) Neither the execution and delivery by the Company (or any
of them) of this Agreement or any of the Ancillary Agreements, nor the
consummation of the transactions contemplated hereby or thereby, nor
compliance by the Company with the terms, conditions and provisions
hereof or thereof, shall (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under,
(iii) result in the creation of any lien, security interest, charge or
encumbrance upon its capital stock or assets pursuant to, (iv) give any
third party the right to accelerate any obligation under, (v) result in
a violation of or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative
or governmental body pursuant to, the articles of incorporation or
bylaws of the Company (or any of them) or any law, statute, rule or
regulation to which the Company (or any of them) is subject, or any
agreement, instrument, order, judgment or decree to which the Company
(or any of them) is subject.
(d) This Agreement and each of the Ancillary Agreements to
which the Company (or any of them) is a party have been duly and
validly executed and delivered by Eagle, Pacific, Arrow and/or EPII (as
the case may be) and constitute legal, valid and binding obligations,
and all such obligations of the Company (or any of them) are
enforceable in accordance with their respective terms.
(e) Except for fees payable to BA Securities, Inc. in an
amount not to exceed $345,000, there are no claims for brokerage
commissions, finders' fees or similar compensation in connection with
the transactions contemplated by this Agreement based on any
arrangement or agreement binding upon the Company (or any of them).
(f) At the time of their issuance, the shares issuable
pursuant to the New Common Stock Warrant and the Warrant (the "Warrant
Shares") shall be validly issued, fully paid and nonassessable and free
and clear of any and all liens, claims, encumbrances and the like.
(g) The issuance of the Warrant Shares has been duly
authorized by all necessary corporate action on the part of the Company
and no vote, g) The issuance of the Warrant Shares has been duly
authorized by all necessary corporate action on the part of the Company
and no vote, authorization, consent or approval of the shareholders of
the Company (or any of them) is necessary for the issuance of the
Warrant Shares.
(h) (i) All of the outstanding shares of capital stock of
EPII, as of the date hereof, are validly issued, fully paid
and nonassessable. Except as set forth on Schedule 1 attached
hereto, there are not outstanding any shares of stock,
securities, rights or options convertible or exchangeable into
or exercisable for any shares of EPII's capital stock, stock
appreciation rights or phantom stock, nor is or was EPII under
any obligation (contingent or otherwise) to redeem or
otherwise acquire any shares of its capital stock or any
securities, rights or options to acquire such capital stock,
stock appreciation rights or phantom stock. To the best of the
Company's knowledge, Schedule 1 hereto sets forth a complete
and accurate list as of the date hereof of the names of, and
the respective ownership of any person or group of persons
holding 5% or more of such capital stock of EPII other than
Xxxxx.
(ii) There are no statutory or contractual
stockholders' preemptive rights with respect to the issuance
of the New Common Stock Warrant, EPII has not violated any
applicable federal or state securities laws in connection with
the offer, sale or issuance of any of its capital stock or
warrants (which, in the case of EPII for periods prior to
January 1, 1986, could result in a material adverse effect on
its business, operations, properties, financial condition,
operating results or business prospects) and, assuming the
truth and accuracy of Xxxxx'x representations and warranties
under Section 9(b) hereof, the issuance of the New Common
Stock Warrant does not require registration under the
Securities Act of 1933, as amended from time to time (together
with any rules and regulations thereunder)(the "Securities
Act") or any applicable state securities laws. Except as set
forth on Schedule 1 hereto, there are no agreements between
EPII's stockholders with respect to the voting or transfer of
EPII's capital stock or with respect to any other aspect of
EPII's affairs (it being understood that, unless the contrary
is known by EPII on the date hereof, the representation and
warranty in this sentence shall not apply to any person or
group of persons holding less than 5% of EPII's common stock).
(iii) EPII has filed all forms, statements,
schedules, exhibits, reports and other documents with the SEC
required by it pursuant to the federal securities laws and the
SEC rules and regulations thereunder, all of which have
complied as of their respective filing dates with all
applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended from time to time
(the "Exchange Act"), and any rules or regulations promulgated
thereunder. The representation and warranty in the immediately
preceding sentence shall not apply to EPII for periods prior
to January 1, 1986, unless its failure to so file or comply
could result in a material adverse effect on its business,
operations, properties, financial condition, operating results
or business prospects.
(i) Neither this Agreement nor any of the Ancillary Agreements
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained
herein and therein not misleading. There is no fact known to the
Company (or any of them) (other than general conditions which are a
matter of public knowledge) which materially adversely affects the
business, operations, properties, financial condition, operating
results or business prospects of the Company (or any of them). All
documents filed by EPII pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act contain all statements that are required by the
Exchange Act and do not contain any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements contained therein not misleading.
8. Waiver of Breach. Xxxxx hereby waives any and all breaches of
the terms of the Debenture Acquisition Agreement and the
Debenture resulting from (a) the execution and delivery by the
Company of this Agreement and the other agreements and
instruments to be executed and delivered hereunder, (b) the
refinancing transaction contemplated by the Credit Agreement
and the use of proceeds permitted thereby, (c) the sale of
common stock of EPII to Okabena, (d) the sale of common stock
of EPII to Xxxxxxx Capital Management and (e) the consummation
of the transactions contemplated hereby including, without
limitation, the payments contained in Section 3 hereof.
9. Transfer.
(a) Transfer of Restricted Securities.
(i) Restricted Securities (as herein defined) are
transferable pursuant to (A) public offerings registered under
the Securities Act, (B) Rule 144 of the Securities Act (or any
similar rule then in force) if such rule is available and (C)
subject to the conditions specified in Section 9(a)(ii)
hereof, any other legally available means of transfer.
(ii) In connection with the transfer of any
Restricted Securities (other than a transfer described in
clause (A) or (B) of Section 9(a)(i) hereof), the holder
thereof shall deliver written notice to EPII describing in
reasonable detail the transfer or proposed transfer, together
with information as to such holder's compliance with
applicable securities laws as reasonably may be requested by
EPII, and such transfer only shall be made in compliance with
the Securities Act and any applicable state securities laws.
EPII shall cooperate in connection with any such transfer,
including providing such information to any holder of
Restricted Securities or such holder's proposed transferee as
may be necessary to satisfy the requirements of Rule 144A of
the Securities Act in connection with any transfer to a
"Qualified Institutional Buyer" under such rule. Upon any
transfer, the transferee shall, to the extent of such
transfer, be entitled to exercise the rights hereunder of the
person making such transfer. To the extent the holder of the
Restricted Securities complies with the first sentence of this
Section 9(a)(ii), EPII shall promptly upon such contemplated
transfer deliver new certificates for such Restricted
Securities which do not bear the Securities Act legend set
forth in Section 9(b) hereof unless such legend is still
required. If EPII is not required to deliver new certificates
for such Restricted Securities not bearing such legend, the
holder thereof shall not transfer the same until the
prospective transferee has confirmed to EPII in writing its
agreement to be bound by the conditions contained in this
paragraph and Section 9(b) hereof.
(iii) "Restricted Securities" means (x) the New
Common Stock Warrant, (y) any securities issued pursuant to
the New Common Stock Warrant and (z) any securities issued
with respect to the securities referred to in clauses (x) or
(y) above by way of a stock dividend or stock split or in
connection with a combination of shares, modification, merger,
consolidation or other reorganization. As to any particular
Restricted Securities, such securities shall cease to be
Restricted Securities when they have (A) been effectively
registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (B)
become eligible for sale pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act or (C) been
otherwise transferred and new certificates for them not
bearing the Securities Act legend set forth in Section 9(b)
hereof have been delivered by EPII in accordance with Section
9(b) hereof. Whenever any particular securities cease to be
Restricted Securities, the holder thereof shall be entitled to
receive from EPII, without expense, new securities of like
tenor not bearing a Securities Act legend of the character set
forth in Section 9(b) hereof.
(b) Xxxxx hereby represents that it is (a) an "accredited
investor" within the meaning of Rule 501(a) of Regulation D under the
Securities Act and (b) acquiring the Restricted Securities acquired
pursuant hereto for its own account with the present intention of
holding such securities for purposes of investment and that it has no
intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state
securities laws; provided that nothing contained herein will prevent
Xxxxx and any subsequent holders of Restricted Securities from
transferring such securities in compliance with the provisions of
Section 9(a) hereof. Each certificate for shares will be imprinted with
a legend in substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state securities laws. The transfer of the securities
represented by this certificate is subject to the conditions
specified in that certain Amendment Agreement dated as of May
10, 1996 by and among Xxxxxxx Xxxxx Mezzanine Capital Fund,
L.P., Eagle Plastics, Inc. Pacific Plastics, Inc., Arrow
Pacific Plastics, Inc. and Eagle Pacific Industries, Inc.
(f/k/a Black Hawk Holdings, Inc.) ("EPII"), and EPII reserves
the right to refuse the transfer of such securities until such
conditions have been fulfilled with respect to such transfer.
A copy of such conditions will be furnished by EPII to the
holder hereof upon written request and without charge."
10. Miscellaneous.
(a) Further Assurances. The Company shall, from time to time
at the request of Xxxxx, do all further acts and things as may in the
opinion of Xxxxx be necessary or advisable to effectuate the
transaction and other matters contemplated hereby, including, without
limitation, the modification of or amendment to any other agreements,
certificates or instruments to which the Company is a party.
(b) Joint and Several. The Company's obligations hereunder
shall be joint and several.
(c) Successors. This Agreement and the agreements and
obligations contained herein shall, as applicable, be binding upon and
inure to the benefit of the Company and Xxxxx and their respective
successors and permitted assigns.
(d) Costs and Expenses. The Company agrees to pay all costs
and expenses, including, without limitation, attorney's fees and
expenses, expended or incurred by Xxxxx in connection with (i) the
preparation and structuring of this Agreement and the Ancillary
Agreements, (ii) the enforcement of this Agreement or any of the
Ancillary Agreements, (iii) the collection of any amounts due hereunder
and (iv) any actions for declaratory relief in any way related to this
Agreement or the agreements, certificates and instruments described
herein or contemplated hereby (including, without limitation, the
Ancillary Agreements), or the protection or preservation of any rights
of Xxxxx hereunder.
(e) Notices. All notices and other communications given to or
made upon any party hereto in connection with this Agreement shall,
except as otherwise expressly herein provided, be in writing (including
telexed or telecopied communication) and mailed, telexed, telecopied or
delivered by hand or by reputable overnight courier service to the
respective parties, as follows:
If to Xxxxx, to:
Xxxxxxx Xxxxx Mezzanine Capital Fund, L.P.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with copy to:
Altheimer & Xxxx
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Company to:
c/o Eagle Pacific Industries, Inc.
0000 Xxxxxxx Xxxxxx
000 X. 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with copy to:
Xxxxxxxxxx & Xxxxx, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx West, Esq.
Telecopy: (000) 000-0000
or in accordance with any subsequent written direction from the
recipient party to the sending party. All such notices and other
communications shall, except as otherwise expressly herein provided, be
effective upon delivery if delivered by hand; when deposited with a
reputable courier service, delivery charges prepaid; when deposited in
the mail, postage prepaid; or in the case of telex or telecopy, when
received.
(f) Survival. All representations, warranties, covenants and
agreements contained herein or made in writing in connection herewith
shall survive indefinitely the execution and delivery of this
Agreement.
(g) Assignability. This Agreement shall not be assignable by
either party without the prior written consent of the other party.
(h) Entire Agreement. This Agreement and the instruments to be
delivered by the parties pursuant to the provisions hereof constitute
the entire agreement between the parties hereto with respect to the
subject matter hereof. Any amendments or alternative or supplementary
provisions to this Agreement must be made in writing and duly executed
by an authorized representative of each of the parties hereto.
(i) Counterparts. This Agreement may be executed in any number
of counterparts and by any party hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same
instrument.
(j) Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this
Agreement.
(k) No Further Amendments. Except as specifically amended
hereby, the terms and provisions of the Debenture Acquisition
Agreement, the Debenture, the Registration Agreement and the Warrant
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of
the day and year first above written.
EAGLE PLASTICS, INC.
By:________________________________________________
Title:_____________________________________________
EAGLE PACIFIC INDUSTRIES, INC.
By:________________________________________________
Title:_____________________________________________
PACIFIC PLASTICS, INC.
By:________________________________________________
Title:_____________________________________________
ARROW PACIFIC PLASTICS, INC.
By:________________________________________________
Title:_____________________________________________
XXXXXXX XXXXX MEZZANINE CAPITAL FUND, L.P.
By: Xxxxxxx Xxxxx Mezzanine Capital Partners, L.P.,
its general partner
By:_______________________________________
Title: a general partner
SCHEDULE 1
AMENDMENT AGREEMENT
1,383,500 shares of Preferred Stock of EPII convertible into 1,383,500 shares of
Common Stock of EPII. It is the intention of EPII to offer the holders of the
1,383,500 shares of Preferred Stock of EPII to convert such shares into
1,581,143 shares of Common Stock of EPII if done within a designated time.
Attached hereto are the following lists:
Warrants to purchase shares of EPII Common Stock
Nonqualified Stock Options Granted Outside the 1991 Stock Option Plan
to acquire shares of EPII Common Stock
Nonqualified Stock Options Granted Pursuant to the 1991 Stock Option
Plan to acquire shares
of
EPII Common Stock
Incentive Stock Options Granted Pursuant to the 1991 Stock Option Plan
to acquire shares of common stock of Eagle Plastics, Inc.
By agreement dated December 17, 1993 by and among EPII, Eagle Plastics, Inc.,
Xxxxx X. Xxxxxxx, Xxxxxx Xxxxx Xxxxx and Xxxxx Xxxxxxx, EPII may from time to
time be obligated to acquire shares of Eagle Plastics, Inc. for cash or by
issuing shares of Common Stock of EPII.
The section of EPII's Proxy Statement for Annual Meeting of Shareholders to be
held April 30, 1996 entitled "Security Ownership of Principal Shareholders and
Management" is incorporated herein by reference.
Eagle Pacific Industries, Inc.
List of Warrants
1. Warrant dated March 16, 1995 to purchase 100,000 shares of Common Stock
to Xxxxxxx Xxxxx Mezzanine Capital Fund LP.
2. Warrant dated December 17, 1993 to purchase 2,500 shares of Common
Stock to Xxxxxxx, Xxxxxxxxx & Associates.
3. Warrant dated December 17,1993 to purchase 625 shares of Common Stock
to Askar Corporation.
4. Warrant dated December 17, 1993 to purchase 1,625 shares of Common
Stock to X.X. Xxxxxxxx & Company.
5. Warrant dated December 17, 1993 to purchase 625 shares of Common Stock
to Xxxx X. Xxxxx.
6. Warrant dated December 17, 1993 to purchase 313 shares of Common Stock
to Xxxxxx X. Xxxxxx.
7. Warrant dated December 17, 1993 to purchase 3,125 shares of Common
Stock to Xxxxx X. Xxxxxx.
8. Warrant dated December 17, 1993 to purchase 3,500 shares of Common
Stock to Xxxxxxx Xxxxxx.
9. Warrant dated December 17, 1993 to purchase 625 shares of Common Stock
to Xxxxxx X. Xxxxxxxxx.
Total number of shares of Common Stock granted pursuant to Warrants = 112,313
shares
EAGLE PACIFIC INDUSTRIES, INC. 8/22/96
NONQUALIFIED STOCK OPTIONS GRANTED
OUTSIDE OF THE 1991 STOCK OPTION PLAN
Shares Expiration
Remaining of
Grant Total Shares to be Exercise Date and Shares
Name Date Granted Exercised Price Vesting Date Period Exercised
---- ------ ------- --------- ----- ------------ -------- ---------
XXXXX X. XXXXXXXXX 2/01/93 5,000 5,000 $2.00 Full 2/01/98
XXXXXXX X. XXXX, XX. 7/06/95 24,000 24,000 $3.125 6,000 shares - 7/06/96 7/06/00
6,000 shares - 7/06/97 7/06/00
6,000 shares - 7/06/98 7/06/00
6,000 shares - 7/06/99 7/06/00
XXXXXX XXXXX XXXXX 12/17/93 50,000 50,000 $2.00 12,500 shares - 12/17/94 12/17/00
12,500 shares - 12/17/95** 12/17/00
12,500 shares - 12/17/96** 12/17/00
12,500 shares - 12/17/97** 12/17/00
12/17/93 45,000 45,000 $1.75 11,250 shares - 12/17/94 12/17/98
11,250 shares - 12/17/95** 12/17/98
11,250 shares - 12/17/96** 12/17/98
11,250 shares - 12/17/97** 12/17/98
1/01/95 40,000 40,000 $2.50 10,000 shares - 12/31/95 12/31/99
10,000 shares - 12/31/96
10,000 shares - 12/31/97
10,000 shares - 12/31/98
2/27/95 35,000 35,000 $3.00 Full 2/27/00
XXXXXX X. XXXX 2/01/93 15,000 15,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98
5,000 shares - 2/01/95* 2/01/98
2/27/95 15,000 15,000 $3.00 Full 2/27/00
XXXXX X. XXXX 3/04/89 10,000 0 $1.00 Fully vested on 3/04/92 3/03/94 Terminated
(RESIGNED 10/93) 3/3/94
2/01/93 15,000 5,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98 Terminated 10/93
5,000 shares - 2/01/95* 2/01/98 Terminated 10/93
XXXXXXX X. XXXXXXX 5/06/92 30,000 30,000 $0.34375 7,500 shares - 5/06/92 3/31/97
7,500 shares - 6/15/93* 3/31/97
7,500 shares - 6/15/94* 3/31/97
7,500 shares - 6/15/95* 3/31/97
2/01/93 15,000 15,000 $2.00 5,000 shares - 2/01/93 2/1/98
5,000 shares - 2/01/94* 2/1/98
5,000 shares - 2/01/95* 2/1/98
2/27/95 15,000 15,000 $3.00 Full 2/27/00
XXXXX X. XXXXXXX 2/01/93 15,000 15,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98
5,000 shares - 2/01/95* 2/01/98
12/17/93 20,000 20,000 $1.75 5,000 shares - 12/17/94 12/17/98
5,000 shares - 12/17/95 12/17/98
5,000 shares - 12/17/96 12/17/98
5,000 shares - 12/17/97 12/17/98
2/27/95 15,000 15,000 $3.00 Full 2/27/00
XXXXX XXXXXXX 12/17/93 45,000 45,000 $1.75 11,250 shares - 12/17/94 12/17/98
11,250 shares - 12/17/95** 12/17/98
11,250 shares - 12/17/96** 12/17/98
11,250 shares - 12/17/97** 12/17/98
1/01/95 20,000 20,000 $2.50 5,000 shares - 12/31/95 12/31/99
5,000 shares - 12/31/96 12/31/99
5,000 shares - 12/31/97 12/31/99
5,000 shares - 12/31/98 12/31/99
2/27/95 10,000 10,000 $3.00 Full 2/27/00
XXXXX X. XXXXXXX 12/17/93 150,000 150,000 $2.00 37,500 shares - 12/17/94 12/17/00
37,500 shraes - 12/17/95** 12/17/00
37,500 shares - 12/17/96** 12/17/00
37,500 shares - 12/17/97** 12/17/00
12/17/93 45,000 45,000 $1.75 11,250 shares - 12/17/94 12/17/98
11,250 shares - 12/17/95 12/17/98
11,250 shares - 12/17/96 12/17/98
11,250 shares - 12/17/97 12/17/98
2/27/95 35,000 35,000 $3.00 Full 2/27/00
XXXXX XXXXXXXX 7/10/95 100,000 100,000 $3.125 Full 7/10/00
XXXXX X. XXXXX 1/10/92 125,000 125,000 $0.34375 Full on 1/10/97* 1/10/99
(vesting accelerates when
Board determines)
5/6/92 35,000 0 $0.34375 12,500 shares - 5/06/92 3/31/97 Exercised
7,500 shares - 6/15/93*
7,500 3/31/97 35,000 on
shares - 3/31/97 6/18/96
6/15/94* 3/31/97
7,500 shares - 6/15/95*
2/1/93 15,000 15,000 $2.00 5,000 shares - 2/1/93 2/1/98
5,000 shares - 2/1/94* 2/1/98
5,000 shares - 2/1/95* 2/1/98
2/27/95 15,000 15,000 $3.00 Full 2/27/00
XXXXXXX X. XXXXX 1/10/92 125,000 125,000 $0.34375 Full as of 1/10/97* 1/10/99
(vesting accelerates when
Board determines)
5/06/92 35,000 0 $.34375 12,500 shares - 5/06/92 3/31/97 Exercised
7,500 shares - 6/15/93* 3/31/97 35,000 on
7,500 shares - 6/15/94* 3/31/97 6/18/96
7,500 shares - 6/15/95* 3/31/97
2/01/93 15,000 15,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98
5,000 shares - 2/01/95* 2/01/98
2/27/95 50,000 50,000 $3.00 Full 2/27/00
XXXXXX X. XXXXXXXXXX 5/06/92 30,000 15,000 $0.34375 7,500 shares - 5/06/92 3/31/97
(RESIGNED BETWEEN MARCH 7,500 shares - 6/15/93* 3/31/97
AND MAY 12, 1994) 7,500 shares - 6/15/94* 3/31/97 Terminated 5/94
7,500 shares - 6/15/95* 3/31/97 Terminated 5/94
2/01/93 15,000 10,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98
5,000 shares - 2/01/95* 2/01/98 Terminated 5/94
XXXX X. XXXXXX 2/01/93 15,000 10,000 $2.00 5,000 shares - 2/01/93 2/01/98
5,000 shares - 2/01/94* 2/01/98
5,000 shares - 2/01/95* 2/01/98 Terminated
XXXXXX XXXXXXXX 7/10/95 100,000 100,000 $3.125 FULL 7/10/00
XXXX X. XXXXXXX 2/27/95 16,000 16,000 $3.00 4,000 shares - 2/27/95 2/27/00
4,000 shares - 2/27/96 2/27/00
4,000 shares - 2/27/97 2/27/00
4,000 shares - 2/27/98 2/27/00
TOTAL SHARES GRANTED: 1,360,000
TOTAL SHARES
REMAINING TO BE 70,000
EXERCISED:
1,245,000
TOTAL EXERCISED
SHARES:
-----------------------------
* must be a director as of the date the shares become exercisable
** must be an employee or director of Eagle as of the date the shares become
exercisable
cc: Nonqualified Stock Option Agreements File (29340.0.83)
Stock Transfer Matters File (29340.0.34)
Xxxxxx West
EAGLE PACIFIC INDUSTRIES, INC. 8/22/96
NONQUALIFIED STOCK OPTIONS GRANTED
PURSUANT TO 1991 STOCK OPTION PLAN
Shares Expiration
Remaining of Date and Shares
Grant Total Shares to be Exercise Exercised
Name Date Granted Exercised Price Vesting Date Period ---------------
---- ------ ------- --------- ----- ------------ --------
XXXXX X. XXXXXXXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
S. XXXXXX XXXX XXXXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
XXXXX X. XXXXXXX 4/10/92 5,000 0 $2.25 Full vested on 4/11/92 4/09/95 Expired 4/9/95
4/10/92 5,000 5,000 $0.64 Fully vested on 4/11/92 4/09/97
XXXXXX X. XXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
4/08/93 5,000 5,000 $2.125 Fully vested on 10/8/93 4/07/03
5/12/94 5,000 5,000 $1.75 Fully vested on 11/12/94 5/11/04
XXXXX X. XXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
(RESIGNED 10/93)
4/08/93 5,000 5,000 $2.125 Fully vested on 10/8/93 4/07/03
XXXXXXX X. XXXXXXX 4/08/93 5,000 5,000 $2.125 Fully vested on 10/8/93 4/07/03
5/12/94 5,000 5,000 $1.75 Fully vested on 11/12/94 5/11/04
XXXXXX X. XXXXXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
XXXXX X. XXXXXXX 5/06/92 20,000 20,000 $2.50 5,000 shares - 5/06/92 5/06/97
5,000 shares - 5/06/93 5/06/97
5,000 shares - 5/06/94 5/06/97
5,000 shares - 5/06/95 5/06/97
4/08/93 5,000 5,000 $2.125 Fully vested on 10/8/93 04/07/03
5/12/94 5,000 5,000 $1.75 Fully vested on 11/12/94 05/11/04
XXXXX X. XXXXX 7/22/93 30,000 30,000 $2.0625 10,000 shares - 7/22/97 7/21/03
10,000 shares - 7/22/98* 7/21/03
10,000 shares - 7/22/99* 7/21/03
(vesting schedule accelerates
to vest 1/3 as of closing
date of acquisition, 1/3 the
next year and 1/3 the third
year)
XXXXXXX X. XXXXX 7/22/93 60,000 60,000 $2.0625 20,000 shares - 7/22/97 7/21/03
20,000 shares - 7/22/98* 7/21/03
20,000 shares - 7/22/99* 7/21/03
(vesting schedule accelerates
to vest 1/3 as of closing
date of acquisition, 1/3 the
next year and 1/3 the third
year)
XXXXXX X. XXXXXXXXXX 4/08/93 5,000 5,000 $2.125 Fully vested on 10/08/93 4/07/03
(RESIGNED BETWEEN MARCH
AND MAY 12, 1994)
XXXX X. XXXXXX 4/25/91 5,000 5,000 $0.64 Fully vested on 10/25/91 4/24/01
4/08/93 5,000 5,000 $2.125 Fully vested on 10/08/93 4/07/03
XXXXXXX X. XXXXXX 7/22/93 3,000 3,000 $2.0625 1,000 shares - 7/22/93 7/21/00
1,000 shares - 7/22/94 7/21/00
1,000 shares - 7/22/95 7/21/00
5/12/94 3,000 3,000 $1.75 1,000 shares - 5/12/95 5/11/01
1,000 shares - 5/12/96 5/11/01
1,000 shares - 5/12/97 5/11/01
7/24/95 2,400 2,400 $3.0625 800 shares - 7/24/96 7/23/00
-----
800 shares - 7/24/97 7/23/00
800 shares - 7/24/98 7/23/00
TOTAL SHARES GRANTED: 203,400
=======
TOTAL SHARES
REMAINING TO BE 198,400
EXERCISED: =======
TOTAL EXERCISED
SHARES: O
-----------------------------
* must be a director as of the date the shares become exercisable
** must be an employee or director of Eagle as of the date the shares become
exercisable
EAGLE PACIFIC INDUSTRIES, INC.
INCENTIVE STOCK OPTIONS GRANTED
PURSUANT TO 1991 STOCK OPTION PLAN
Shares Expiration
Remaining of Date and Shares
Grant Total Shares to be Exercise Exercised
Name Date Granted Exercised Price Vesting Date Period ---------------
---- ------ ------- --------- ----- ------------ ------
XXXX X. XXXXXX 3/14/90 6,250 0 $1.25 3,125 shares - 3/14/90 5/01/95 Expired
3,125 shares - 4/01/91
TOTAL SHARES GRANTED: 6,250
TOTAL SHARES
REMAINING TO BE 0
EXERCISED:
TOTAL EXERCISED
SHARES: O
TOTAL RESERVED SHARES
Total shares reserved 1,500,000
LESS total NQSO shares granted (203,400)
LESS total ISO shares granted ( 6,250)
---------
Plus shares which were granted but not exercised and exercise period expired:
Xxxxx X. Xxxxxxx - 5,000 shares (NQSO grant date 4/10/92) + 11,250
---------
Xxxx X. Xxxxxx - 6,250 shares (ISO grant date 3/14/90)
TOTAL REMAINING RESERVED SHARES TO BE GRANTED 1,301,600
=========
TOTAL EXERCISED SHARES Shares exercised by:
0
---------
TOTAL EXERCISED SHARES 0
---------
TOTAL OUTSTANDING SHARES FOR ISSUANCE UPON EXERCISE OF OPTIONS
Total NQSO and ISO Shares Granted 209,650
LESS Total Exercised Shares - 0
LESS Granted Shares that have expired or been terminated:
(11,250)
---------
TOTAL OUTSTANDING SHARES FOR ISSUANCE UPON EXERCISE 198,400
=========
cc: Incentive Stock Option Plan File (29340.29)
Nonqualified Stock Option Agreements File (29340.0.83)
Stock Transfer Matters (29340.0.34)
Xxxxxx West
