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EXHIBIT 10.182
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of September
18, 2000 between Wilshire Technologies, Inc., a California corporation (referred
to herein as "Grantor" or "Company"), and E. I. du Pont de Nemours and Company,
a Delaware corporation (referred to herein as the "Grantee" or "DuPont").
WHEREAS, the Grantor and Grantee are entering into a Product
Development, Purchase and License Agreement, dated as of the date hereof (the
"PDP&L Agreement"), which provides among other things, for the development of
polyurethane material to be utilized in the manufacture of gloves in certain
end-markets, and
WHEREAS, the Grantor as an inducement to Grantee to enter the
PD&D Agreement wishes to grant to the Grantee an option to purchase up to
2,000,000 shares of its common stock, no par value , of the Grantor (the "Common
Stock"), and certain other rights on the terms and subject to the conditions set
forth herein.
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. The following terms shall have the meanings set
forth below:
(a) "Commission" means the Securities and Exchange
Commission, or any other Federal agency at the time administering the Federal
securities laws.
(b) "Company Material Adverse Effect" means any change in
or effect on the business of the Company and its Subsidiaries that is, or is
reasonably likely to be materially adverse to the business, operations or assets
(including intangible assets), prospects, or financial condition of the Company
and its Subsidiaries, taken as a whole.
(c) "Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
(d) "Exchange Act" means the Securities Exchange Act of
1934 or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
(e) "Person" shall have the meaning specified in Sections
3(a)(9) and 13(d)(3) of the Exchange Act. Notwithstanding any other provision of
this
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Agreement, any reference to a majority of the total issued and outstanding
shares or Shares on a fully diluted basis, or similar references, shall, for
purposes of this Agreement, exclude from the determination thereof any shares of
Common Stock issuable upon exercise of or subject to this Agreement and any
reference to beneficial ownership of shares of Common Stock or similar
references shall, for purposes of this Agreement, exclude from the determination
thereof any shares of Common Stock issuable upon exercise of or subject to this
Agreement.
(f) "Registrable Shares" means all of the shares, and any
other shares of Common Stock or other securities of the Company or any other
issuer issued or issuable in respect of such shares (because of stock splits,
stock dividends, reclassifications, recapitalizations, mergers, combinations or
similar events, if applicable) acquired by DuPont pursuant to the terms of the
Option granted in Section 2 herein; provided, however, that the shares which are
Registrable Shares shall cease to be Registrable Shares upon any sale or
transfer of such shares pursuant to a Registration Statement, Section 4(1) of
the Securities Act, Rule 144 under the Securities Act or otherwise, except that
the shares which are Registrable Shares shall remain Registrable Shares in the
event of a transfer of the total number of shares owned by DuPont to any third
party, which includes its Subsidiaries or affiliates (a "DuPont Transferee"). As
a condition to effecting any registration pursuant to this Agreement, the
Company may require that DuPont, or any DuPont Transferee, on whose behalf a
registration hereunder is being effected, execute an agreement further
acknowledging their obligations under Section 17 of this Agreement. All
references in this Agreement to DuPont shall be read to include any DuPont
Transferee that owns or holds any Registrable Shares.
(g) "Registration Expenses" means the expenses described
in Section 14.
(h) "Registration Statement" means a registration
statement filed by the Company with the Commission for a public offering and
sale of securities of the Company (other than any registration statement on Form
S-4 or Form S-8, or their successors, or any other form for a limited purpose,
or any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation or entity or as merger
consideration).
(i) "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.
2. The Option; Exercise; Adjustments; Payment of Spread.
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(a) Subject to the other terms and conditions set forth
herein, in consideration of and as an inducement to Grantee to enter the PDP&L
Agreement, Grantor hereby grants to the Grantee an irrevocable option (the
"Option") to acquire a minimum of 500,000 shares of Common Stock (the "Option
Shares") up to a maximum of 2,000,000 Option Shares at a cash purchase price
equal to $.50 per share (the "Purchase Price"), or as an alternative, Grantee
may elect to reduce the number of shares that are subject to the Option and
return these shares to the Grantor (the "Returned Option Shares") to the extent
that the value of the Returned Option Shares (Market Value less Purchase Price
of Returned Option Shares) equals the Purchase Price PROVIDED that Market Value
shall equal the lowest trading price for Common Stock recorded for the ten
trading days preceding the date of Grantee's Stock Option Notice .
(b) The Option may be exercised by the Grantee, in whole
or in part, at any time, but only on one occasion prior to December 31, 2003
(the "Termination"). Any portion of the Option that remains unexercised as of
11:59 p.m., Eastern Standard Time on December 31, 2003 shall terminate on such
date.
(c) In the event Grantee wishes to exercise the Option,
Grantee shall send a written notice to the Grantor (the "Stock Exercise Notice")
specifying the total number of shares it wishes to purchase and a date (subject
to the expiration or termination of any applicable waiting period under the HSR
Act (as defined below)) not later than 15 business days and not earlier than 3
business days following the date such notice is given for the closing of such
purchase. In the event of any change in the number of issued and outstanding
shares of capital stock of the Grantor by reason of any stock dividend, stock
split, recapitalization or merger, the number of shares subject to this Option
and the purchase price per share shall be appropriately adjusted to restore the
Grantee to its rights hereunder.
3. Approvals and Consents; Cooperation.
(a) The Company and Grantee shall cooperate with each
other and use (and shall cause their respective Subsidiaries to use) their
respective commercially reasonable best efforts to take or cause to be taken all
actions, and do or cause to be done all things, necessary, proper or advisable
under this Agreement and applicable Laws to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable, including
preparing and filing as promptly as practicable all documentation to effect all
necessary applications, notices, petitions, filings and other documents and to
obtain as promptly as practicable all permits, consents, approvals and
authorizations necessary or advisable to be obtained from any third party and/or
any Governmental Entity (as defined in Section 10(f)) in order to consummate the
Sale or any of the other transactions contemplated by this Agreement.
(b) In particular, the Company and Grantee each agree to
use commercially reasonable efforts to take, or cause to be taken, all
appropriate action, and do, or cause to be done, such things as may be necessary
under federal or state securities laws or the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the HSR
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Act) applicable to or necessary for, and will file as soon as reasonably
practicable and, if appropriate, the Company use commercially reasonable efforts
to have declared effective or approved, all documents and notifications with the
Commission and other governmental or regulatory bodies that it deems necessary
or appropriate for, the consummation of the transactions contemplated hereby and
each party shall give the other information reasonably requested by such other
party pertaining to it to enable such other party to take such actions.
4. Commission Filings; De-registration. The Company shall use its
best efforts to make all required filings under the Exchange Act in a timely
manner. The Company shall use its best efforts to prevent its Common Stock from
being de-registered under the Exchange Act, or from any national securities
exchange or system, if the Company's Common Stock is registered or listed on an
exchange or system during the term of this Agreement.
5. Publicity. Any press release relating to the Sale or this
Agreement shall be made available to Grantee to afford Grantee a reasonable time
to review and comment on the proposed release. Notwithstanding the previous
sentence, the Company shall have the right to make the final determination of
the content of such release.
6. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated herein shall be paid by the
party incurring such expense.
7. Conditions to Delivery of Shares. The Grantor's obligation to
deliver Option Shares upon exercise of the Option is subject only to the
conditions that:
(a) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction prohibiting the
delivery of the Option Shares shall be in effect; and
(b) Any applicable waiting periods under the HSR Act shall
have expired or been terminated; and
(c) The representations and warranties of the Grantor and
Grantee made in Sections 10 and 11, respectively, of this Agreement shall be
true and correct in all material respects as of the date of the closing of the
issuance of the Option Shares or Grantor has provided Grantee a written notice
of any material changes and Grantee has waived in writing this Article 7(c).
8. The Closing.
(a) Any closing hereunder shall take place on the date
specified by the Grantee in its Stock Exercise Notice, as the case may be, at
10:00 A.M., local time, at the offices of the Company, 5861 Edison Place,
Carlsbad, California, or, if the
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conditions set forth in Section 7(a), (b), or (c) have not then been satisfied,
on the second business day following the satisfaction of such conditions, or at
such other time and place as the parties hereto may agree (the "Closing Date").
On the Closing Date or as soon thereafter as practicable, the Grantor will
deliver to the Grantee a certificate or certificates, representing the Shares in
the denominations designated by the Grantee in its Stock Exercise Notice and the
Grantee will acquire such Shares from the Grantor in the manner set forth in
Section 2. If any payment is required to be made by Grantee to the Grantor
pursuant to this Agreement, it shall be made by wire transfer of federal funds
to a bank designated by the Grantor.
(b) Grantee agrees not to transfer or otherwise dispose of
the Option or the Option Shares, or any interest therein, except in compliance
with the Securities Act and any applicable state securities law. Grantee further
agrees that the certificates representing the Option Shares shall bear an
appropriate legend relating to the fact that such Shares have not been
registered under the Securities Act.
9. Listing of Shares; Filings; Governmental Consents. If shares
of the Company's Common Stock are registered or listed on any national
securities exchange or system during the term of this Agreement, subject to
applicable law and the rules and regulations of such national securities
exchange or system, after the Option becomes exercisable hereunder, Grantor will
promptly file an application to list the Option Shares on such exchange or
system. Additionally, Grantor will use its reasonable best efforts to obtain
approval of such listing and to effect all necessary filings; provided, however,
that if the Grantor is unable to effect such listing on the exchange or system
by the Closing Date, Grantor will nevertheless be obligated to deliver the
Option Shares on the Closing Date and to continue its efforts to obtain such
listing.
10. Representations and Warranties of the Company
The Company represents and warrants to Grantee as of the date hereof as
follows:
(a) Authorization of Agreements, etc. The execution and
delivery by the Company of this Agreement, the performance by the Company of its
obligations hereunder, and the issuance, sale and delivery of the Option have
been duly authorized, and the Option Shares, when issued and delivered, will be
duly authorized by all requisite corporate action and will not result in any
violation of, be in conflict with, or constitute a default under, with or
without the passage of time or the giving of notice: (a) any provision of the
Company's Articles of Incorporation, as amended, or Bylaws; (b) any provision of
any judgment, decree or order to which the Company is a party or by which it is
bound; (c) any material contract or agreement to which the Company is a party or
by which it is bound; or (d) any statute, rule or governmental regulation
applicable to the Company, except where such violation, conflict, or default
would not have a Company Material Adverse Effect.
(b) Valid Issuance of Common Stock. The Option Shares have
been duly authorized and reserved and, when issued, sold and delivered in
accordance with this Agreement for the consideration expressed herein will be
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validly issued, fully paid and nonassessable with no personal liability
attaching to the ownership thereof and will be free and clear of all liens,
charges and encumbrances of any nature whatsoever except for restrictions under
applicable Federal and state securities laws.
(c) Validity. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
of general application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in this Agreement may be limited by
applicable Federal or state securities laws.
(d) Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 50 million shares of Common Stock, no
par value, and 2 million shares of preferred stock, no par value, of which
12,953,385 shares of Common Stock are outstanding, no shares of preferred stock
are outstanding, and the only warrants, options or convertible securities
relating to the issuance by the Company of additional shares of its Common Stock
have been previously disclosed to Grantee. All of the issued and outstanding
shares of the Company's Common Stock are duly and validly issued and outstanding
and are fully paid and nonassessable.
(e) Organization, Good Standing and Qualification. Each of
the Company and its Subsidiaries is a corporation or limited liability company
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization. Each of the Company and each of its
Subsidiaries have all requisite corporate or limited liability company power and
authority to own and operate its respective properties and assets and to carry
on its business as presently conducted. Each of the Company and each of its
Subsidiaries is qualified to do business and is in good standing as a foreign
corporation or limited liability company in each jurisdiction where the
ownership or operation of its properties or conduct of its business requires
such qualification, except where the failure to be so qualified or in such good
standing, when taken together with all other such failures, is not reasonably
likely to have a Company Material Adverse Effect (as defined below) or impair
the ability of the Company, or any of its Subsidiaries, following consummation
of the Sale, to conduct any material business or operations in any jurisdiction
where they are now being conducted. All of the outstanding equity interests in
each such Subsidiary have been validly issued and are fully paid and
non-assessable and owned by the Company free and clear of all pledges, claims,
liens, charges, encumbrances and security interests of any kind or nature
whatsoever. The Company has made available to Grantee a complete and correct
copy of the Company's Articles of Incorporation and Bylaws (or similar
documents), each as amended to date. The Company's Articles of Incorporation and
Bylaws so made available are in full force and effect.
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(f) Governmental Filings. Other than any filings and/or
notices required pursuant to the HSR Act, federal securities laws and state
securities or "blue sky" laws, no notices or other filings are required to be
made by the Company with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by the Company from, any
governmental or regulatory authority, agency, commission, body or other
governmental entity ("Governmental Entity"), in connection with the execution
and delivery of this Agreement by the Company and the consummation by the
Company of the Sale and the other transactions contemplated hereby, except those
that the failure to make or obtain are not, individually or in the aggregate,
reasonably likely to have a Company Material Adverse Effect or prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement.
(g) Company Reports; Financial Statements. The Company
and, to the extent applicable, each of its Subsidiaries has made all filings
required to be made by it with the Commission since at least January 1, 1999
(collectively, the "Company Reports"). As of their respective dates, the Company
Reports complied in all material respects with the requirements of applicable
statutes and regulations (except for certain late filings) and did not, and any
Company Reports filed with the Commission prior to the Sale will not, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading. Each of
the balance sheets included in or incorporated by reference into the Company
Reports (including the related notes and schedules) presents fairly, or will
present fairly, the financial position of the Company and its Subsidiaries as of
its date and each of the statements of income and of changes in financial
position included in or incorporated by reference into the Company Reports
(including any related notes and schedules) presents fairly, or will present
fairly, the results of operations, retained earnings and changes in financial
position, as the case may be, of the Company and its Subsidiaries for the
periods set forth therein (except as otherwise noted therein and subject, in the
case of unaudited statements, to notes and normal year-end audit adjustments
that will not be material in amount or effect), in each case in accordance with
generally accepted accounting principles ("GAAP") consistently applied during
the periods involved, except, in the case of unaudited financial statements, as
permitted by Commission Form 10-Q, and except as may be noted therein. The
Company has not, on or prior to the date hereof, filed any other definitive
reports or statements with the Commission since July 14, 2000.
(h) Litigation and Liabilities. Except for matters which
are disclosed in the Company Reports or those matters which are not,
individually or in the aggregate, reasonably likely to have a Company Material
Adverse Effect or prevent or materially delay or materially impair the ability
of the Company to consummate the transactions contemplated by this Agreement,
there are no (i) civil, criminal, administrative or regulatory actions, suits,
claims, hearings, investigations or proceedings pending or, to the knowledge of
the Company's officers and directors, threatened against the Company or any of
its Subsidiaries or (ii) material obligations or
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liabilities of the Company, whether or not accrued, contingent or otherwise and
whether or not required to be disclosed in the Company Reports.
(i) Compliance. Other than those matters which are
disclosed in the Company Reports, the Company is not in material default or
violation of, (a) its Articles of Incorporation or Bylaws, (b) any law,
ordinance, rule, regulation, order, judgment, decree, arbitration award, license
or permit of any Governmental Entity (collectively, "Laws") applicable to the
Company or by which its properties are bound, or (c) any material contract to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries, or its or any of their respective properties, is
bound or affected, except for any such material defaults or violations that,
individually or in the aggregate, will not have a Company Material Adverse
Effect, or prevent or materially delay the transactions contemplated by this
Agreement. No material change is required in the Company's processes, properties
or procedures in order to comply in all material respects with any Laws, and the
Company has not received any notice of any material noncompliance with any such
Laws that has not been cured.
(j) Brokers and Finders. Neither the Company nor any of
its Subsidiaries, officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions or finders'
fees in connection with the Option or the Option Shares or the other
transactions contemplated by this Agreement.
(k) Certain Agreements. Neither the Company nor its
Subsidiaries has violated any provision of, or committed or failed to perform
any act which, with or without notice, lapse of time, or both, is reasonably
likely to constitute a default under the provisions of, any material contract of
the Company or such Subsidiary, and neither the Company nor any of its
Subsidiaries has received notice that any party to any such contract intends to
cancel, terminate or otherwise modify the terms of such contract, except in each
case, as is not reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect.
(l) No Required Vote of Company Stockholders. This
Agreement and the transactions contemplated hereby must be approved by a
majority of the Company's outstanding Common Stock which are entitled to vote in
this matter, and the requisite approval has been obtained.
(m) Licenses and Permits. The Company and each Subsidiary
has obtained all material licenses, registrations, permits, approvals and other
governmental authorizations required to conduct its business as described in the
Company Reports. Such licenses are in full force and effect and neither the
Company nor any Subsidiary has received notice of proceedings relating to the
revocation or modification of any such license, permit, approval and other
governmental authorization.
11. Representations and Warranties of Purchaser
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Purchaser represents and warrants to the Company as of the date
hereof as follows:
(a) Authorization. The execution and delivery by Grantee
of this Agreement and the performance by Grantee of its obligations hereunder
have been duly authorized.
(b) Validity. This Agreement has been duly executed and
delivered by Grantee and constitutes the legal, valid and binding obligation of
Grantee, enforceable in accordance with its terms except: (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally; (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies; and (iii) to the extent the
indemnification provisions contained in this Agreement may be limited by
applicable Federal or state securities laws.
(c) Investment Representations. Grantee (i) is an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act") and was not organized
for the specific purpose of acquiring the Option Shares; (ii) has sufficient
knowledge and experience in investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of its investment in the Company and it is able financially to
bear the risks thereof; and (iii) presently intends that the Option Shares that
may be acquired hereunder will be acquired for Grantee's own account for the
purpose of investment and not with a present view to or for sale in connection
with any distribution thereof.
(d) Grantee acknowledges that: (i) the Option Shares will
not be registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated under the
Securities Act; (ii) the Option Shares must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration; (iii) the Option Shares will bear a legend to
such effect; and the Company will make a notation on its transfer books to such
effect; and (iv) the Company has made available to Grantee all documents and
information that the Grantee has requested relating to an investment in the
Company.
12. Piggyback Registration.
(a) At any time and from time to time after the date of
this Agreement, so long as DuPont then holds Registrable Shares, whenever the
Company proposes to file a Registration Statement, the Company will prior to
making the initial filing give written notice to DuPont of its intention to do
so and, upon the written request of DuPont given within twenty (20) days after
the Company provides such notice, the Company shall use its best efforts to
cause all Registrable Shares of DuPont which the Company has been requested by
DuPont to register, to be registered under the Securities
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Act to the extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified in the request of
DuPont; provided that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 12 without obligation to
DuPont.
(b) In connection with any registration under this Section
12 involving an underwritten offering of the Company's securities, the Company
shall not be required to include any Registrable Shares of DuPont in such
underwriting unless DuPont accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it, and then only in such
quantity as will not, in the reasonable discretion of the underwriters,
jeopardize the success of the offering by the Company. If in the reasonable
discretion of the managing underwriter or underwriters the registration of all,
or part of, the Registrable Shares which DuPont has requested to be included
would adversely affect such public offering, then the Company shall be required
to include in the underwriting only that number of Registrable Shares, if any,
which the managing underwriter or underwriters believe may be sold without
causing such adverse effect. If the number of Registrable Shares to be included
in the underwriting in accordance with the foregoing is less than the total
number of shares which DuPont has requested to be included, then DuPont and the
holders of registration rights previously or subsequently granted shall
participate in the underwriting on a pro rata basis upon the total number of
Registrable Shares which DuPont has requested to be included compared to the
total number of shares of the Company's capital stock held by the holders of
registration rights previously or subsequently granted which such holders have
requested to be included, whether or not such shares are the subject of separate
agreements with the Company concerning registration rights.
13. Registration Procedures. When the Company is required by the
provisions of this Agreement to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective until the earlier to occur of such time as
all Registrable Shares included therein have been sold or the expiration of nine
months unless such Registration Statement is on form S-3 in which case the
expiration period shall be two years;
(c) as expeditiously as possible furnish to DuPont such
reasonable numbers of copies of the prospectus, including a preliminary
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prospectus and any amended or supplemental prospectus, in conformity with the
requirements of the Securities Act, and such other documents as DuPont may each
reasonably request in order to facilitate the public sale or other disposition
of DuPont's Registrable Shares; and
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as DuPont shall reasonably
request, and do any and all other acts and things that may be necessary or
desirable to enable DuPont to consummate the public sale or other disposition of
the Registrable Shares owned by DuPont in such jurisdiction; provided, however,
that the Company shall not be required in connection with this Section 13 to
qualify as a foreign corporation in any jurisdiction or register or qualify the
securities in any state which as a condition to such registration or
qualification would impose material restrictions or other material conditions on
the Company or any of its officers, directors or shareholders (including with
respect to any shares held by such persons or entities) unless such restrictions
or other conditions are approved by the party adversely affected.
If the Company advises DuPont that any preliminary or final
prospectus is no longer in compliance with the requirements of the Securities
Act, or that at such time it is otherwise a violation of any applicable
securities laws to offer or sell securities pursuant to a preliminary or final
prospectus, DuPont shall immediately cease offering or selling the Registrable
Securities and, if requested, return the old prospectus to the Company. DuPont
may recommence offers and sales of Registrable Securities upon receipt from the
Company of an amended prospectus, if applicable, or receipt of ratification from
the Company that the offer and sale of Registrable Securities may resume.
14. Allocation of Expenses. The Company will pay all Registration
Expenses of all registrations under this Agreement. The term "Registration
Expenses" shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel for
the Company, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts and selling commissions attributable to the Registrable
Shares and the fees and expenses of DuPont's own counsel and accountants, which
shall be borne by DuPont.
15. Information by DuPont. DuPont shall promptly furnish to the
Company such information regarding DuPont and the distribution proposed by
DuPont as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
16. "Lock-up" Agreement. If requested by an underwriter in
connection with an underwritten offering of Common Stock or other securities of
the Company, DuPont shall agree not to sell or otherwise transfer or dispose of
any Registrable Shares or
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other securities of the Company held by it for a specified and reasonable period
of time before and/or after the effective date of a Registration Statement,
provided that the same request shall have been made of other holders of the
Company's Common Stock or other securities (including affiliates of the Company)
and such other holders have complied with such request. Such agreement shall be
in writing in a form satisfactory to the Company and any such underwriter. The
Company may impose stop transfer instructions with respect to the Registrable
Shares or other securities subject to the foregoing restriction until the end of
the lock-up period.
17. Indemnification.
(a) By the Company. In the event of any registration of
any of the Registrable Shares under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless DuPont, its directors,
officers and underwriters against any losses, claims, damages or liabilities,
joint or several, to which DuPont may become subject under the Securities Act,
Exchange Act, state securities laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of any material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and the Company will reimburse DuPont for any legal or any other
expenses reasonably incurred by DuPont in connection with investigating and
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon any
untrue statement or omission made in such Registration Statement, preliminary
prospectus or prospectus, or any such amendment or supplement, in reliance upon
and in conformity with information furnished to the Company by or on behalf of
DuPont, specifically for use in the preparation thereof, or as a result of the
failure of DuPont, or any agent of DuPont, to deliver any amendments and
supplements to any Registration Statement and the prospectus included in any
such Registration Statement (provided such amended or supplemental prospectus
has been delivered to DuPont or its agent).
(b) By DuPont. In the event of any registration of any of
the Registrable Shares under the Securities Act pursuant to this Agreement,
DuPont will indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any) and each person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
13
are based upon any untrue statement of a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and DuPont will reimburse the Company, each of
its directors and officers, each underwriter and each controlling person,
severally and not jointly, for any legal or other expenses reasonably incurred
by the Company, each director and officer, each underwriter and each controlling
person in connection with investigating and defending any such loss, claim,
damage, liability or action, only if the statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of DuPont, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or supplement.
(c) Claims. Each party entitled to indemnification under
this Section 17 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided, that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 17. The Indemnified
Party may participate in such defense at such party's expense. No Indemnifying
Party, in the defense of any such claim or litigation, except with the consent
of the Indemnified Party, shall consent to entry of any judgment or enter into
any settlement, which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation.
18. Mergers, Etc. Prior to the exercise or Termination of the
Option, the Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation unless the proposed surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Registrable Shares" shall be deemed to be references to the
securities which DuPont would be entitled to receive in exchange for Registrable
Shares under any such merger, consolidation or reorganization; provided,
however, that the provisions of this Section 18 shall not apply in the event of
any merger, consolidation or reorganization in which the Company is not the
surviving corporation if all holders of Common Stock of the Company are entitled
to receive in exchange for their Registrable Shares consideration consisting
solely of (i) cash, (ii) securities of the acquiring corporation which may be
immediately sold to the public without registration under the Securities Act, or
(iii) securities of the acquiring corporation
14
which the acquiring corporation has agreed to register within 90 days of
completion of the transaction for resale to the public pursuant to the
Securities Act.
19. 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.
20. 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.
21. 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.
15
22. 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.
23. 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 Grantee:
Global Segment Manager - Gloves
DuPont Lycra(R)
Barley Mill Plaza 25/2210
Wilmington, DE 19880-0025
Fax: (302) 892-0788
with copies to:
Mr. John Dickey
E. I. du Pont de Nemours and Company
Barley Mill Plaza 25-2218
Lancaster Pike & Route 141
Wilmington, DE 19805
Fax: (302) 892-0788
if to the Grantor:
Mr. Kevin Mulvihill
President and Chief Executive Officer
Wilshire Technologies
5861 Edison Place
Carlsbad, CA 92008
Fax: (760) 929-0683
with copies to:
16
Richard L. Seidenwurm
Solomon Ward Seidenwurm & Smith, LLP
401 B Street, Suite 1200
San Diego, California 92101
Fax: (619) 231-4755
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
24. Entire Agreement. This Agreement (including any exhibits and
schedules hereto) constitutes the entire agreement, and supersede all other
prior agreements, understandings, representations and warranties both written
and oral, among the parties, with respect to the subject matter hereof.
25. 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.
26 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.
27. 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.
28. Assignment. This Agreement is not assignable by either party;
provided, however, that DuPont 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.
29. 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.
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30. Termination.
(a) The right to exercise the Option granted pursuant to
this Agreement shall terminate on December 31, 2002 (the "Termination Date");
provided, however, that, if the Option cannot be exercised or the Option Shares
cannot be delivered to the Grantee upon such exercise because one or more of the
conditions set forth in Section 7 (a), (b) or (c) hereof have not yet been
satisfied, the Termination Date shall be extended until fifteen days after such
impediment to exercise or delivery has been removed. Following Termination
Grantee shall provide Grantor an acknowledgement that the Option has been
terminated.
(b) All representations and warranties contained in this
Agreement shall survive delivery of and payment for the Shares.
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/ Kevin Mulvihill
----------------------------------------
Name: Kevin Mulvihill
--------------------------------------
Title: President and CEO
-------------------------------------
E. I. du Pont de Nemours and Company
By: /s/ William Ghitis
---------------------------------------
Name: William Ghitis
--------------------------------------
Title: Vice President, Global NBD
-------------------------------------