STOCK REDEMPTION AGREEMENT
dated as of January 24, 1997
by and among
MLGA Fund II, L.P.,
MLGAL PARTNERS, L.P.,
and
▇▇▇▇▇▇ HOLDINGS, INC.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 1
ARTICLE II. REDEMPTION AND SALE 4
Section 2.01. Redemption and Repurchase of the Redeemed Shares 4
Section 2.02. Per Share Purchase Price 4
Section 2.03. Time and Manner of Redemption and ▇▇▇▇▇▇▇▇▇▇ ▇
Section 2.04. Fair Consideration 5
ARTICLE III. CLOSINGS 5
Section 3.01. Closing, Time and Place 5
Section 3.02. Deliveries to the Corporation at the Initial Closing 5
Section 3.03. Deliveries to Sellers at the Initial Closing 6
Section 3.04. Deliveries at the Subsequent Closing 6
ARTICLE IV. SEVERAL REPRESENTATIONS AND WARRANTIES OF THE 7
SELLERS
Section 4.01. Organization of Fund II 7
Section 4.02. Organization of MLGAL 7
Section 4.03. Title to Shares 7
Section 4.04. Authority 7
Section 4.05. No Conflict or Violation 7
Section 4.06. No Consent 8
Section 4.07. Broker's or Finder's Commissions 8
Section 4.08. Representations and Warranties 8
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION 8
Section 5.01. Organization; Qualification 8
Section 5.02. Authority 8
Section 5.03. No Conflict or Violation 9
Section 5.04. No Consent 9
Section 5.05. Bankruptcy 9
Section 5.06. Broker's or Finder's Commissions 9
Section 5.07. Representations and Warranties 9
ARTICLE VI. COVENANTS OF THE CORPORATION 10
Section 6.01. Redemption of the Redemption Share 10
Section 6.02. Fees 10
ARTICLE VII. TAXES 10
Section 7.01. Taxes 10
Section 7.02. Cooperation on Tax Matters 10
ARTICLE VIII. TERMINATION 10
Section 8.01. Conditions of Termination 10
Section 8.02. Effect of Termination 10
ARTICLE IX. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS 11
Section 9.01. Conditions Precedent to the Obligations of the Sellers. 11
ARTICLE X. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CORPORATION 11
Section 10.01. Conditions Precedent to the Obligations of the Corporation 11
ARTICLE XI. MISCELLANEOUS 11
Section 11.01. Public Announcements 11
Section 11.02. Expenses 11
Section 11.03. Headings 11
Section 11.04. Construction 11
Section 11.05. Severability 12
Section 11.06. Entire Agreement 12
Section 11.07. Survival 12
Section 11.08. Notices 12
Section 11.09. Amendments; Waivers 13
Section 11.10. Parties in Interest 13
Section 11.11. Successors and Assigns 13
Section 11.12. Governing Law 13
Section 11.13. Counterparts 13
Section 11.14. Subsequent Documentation 13
STOCK REDEMPTION AGREEMENT
THIS STOCK REDEMPTION AGREEMENT ("Agreement") is entered into as of the
24th day of January, 1997 by and among MLGA Fund II, L.P., a Connecticut
limited partnership ("Fund II"), MLGAL PARTNERS, L.P., a Connecticut limited
partnership ("MLGAL"; and together with Fund II, the "Sellers") and ▇▇▇▇▇▇
Holdings, Inc., a Delaware corporation (the "Corporation").
RECITALS
The authorized capital stock of the Corporation consists of 20,000,000
shares of common stock, $.01 par value per share (the "Common Stock"), of
which 6,556,963 shares are issued and outstanding, and 2,000,000 shares of
blank check preferred stock, none of which is issued and outstanding.
Fund II is the record and beneficial owner of 5,434,894 shares of the
Common Stock represented by certificates numbered 173 and 334 (the "Fund II
Shares").
MLGAL is the record and beneficial owner of 86,857 shares of the Common
Stock represented by certificate number 171 (the "MLGAL Shares"; and together
with the Fund II Shares, the "Sellers Shares").
The remaining 1,035,212 shares of the Corporation's issued and
outstanding Common Stock (the "Investors Shares") are owned by certain
individual and other investors (the "Investors").
The Corporation desires to redeem and repurchase from the Sellers, and
the Sellers desire to sell to the Corporation, up to a maximum of 5,217,685 of
the Sellers Shares on the terms and conditions of this Agreement.
AGREEMENT
In consideration of the foregoing and of the respective representations,
warranties, covenants, and agreements herein contained, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms have the meanings
indicated below:
"Adverse Claims" has the meaning contained in 8-302 of the New York
Uniform Commercial Code.
"Agreement" means this Stock Redemption Agreement as the same may be
amended, restated, supplemented or modified from time to time in accordance
with its terms.
"Blue Sky Law" means or refers to the law or laws of any state or states
affecting the issuance, sale or transfer of any security of the Corporation.
"Business Day" means any day other than Saturday, Sunday, and any day on
which commercial banks in New York, New York are authorized by law to be
closed.
"Common Stock" has the meaning specified in the Recitals of this
Agreement.
"Corporation" has the meaning specified in the first paragraph of this
Agreement.
"Escrow Agent" means National City Bank, N.A., Indianapolis, Indiana.
"Escrow Agreement" means that certain Escrow Agreement, of even date
herewith, by and among the Escrow Agent, Fund II, MLGAL and the Corporation, a
copy of which is attached hereto as Exhibit I-A.
"Escrow Amount" means $8,361,265.50.
"Escrow Shares" means 823,770 of the Sellers Shares, 810,837 of which are
Fund II Shares and 12,933 of which are MLGAL Shares.
"Files and Records" means all files and records of the Corporation and
International, whether in hard copy or magnetic or other format.
"Fund II" has the meaning specified in the first paragraph of this
Agreement.
"Fund II Shares" has the meaning specified in the Recitals to this
Agreement.
"Initial Closing" has the meaning specified in Section 3.01.
"Initial Closing Date" has the meaning specified in Section 3.01.
"Initial Closing Purchase Price" shall mean $44,598,237.55,
$43,898,049.65 of which is payable to Fund II and $700,187.60 of which is
payable to MLGAL.
"Initial Closing Shares" means 4,393,915 of the Sellers Shares, 4,324,931
of which are Fund II Shares and 68,984 of which are MLGAL Shares.
"International has the meaning specified in Section 6.02.
"Investors" has the meaning specified in the Recitals of this Agreement.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
(statutory or other), option, charge, or sale agreement.
"Material Adverse Effect," when used with respect to a Person, means a
material adverse effect on the assets, operations, business or financial
condition of that Person.
"MLGAL" has the meaning specified in the first paragraph of this
Agreement.
"MLGAL Shares" has the meaning specified in the Recitals to this
Agreement.
"Per Share Price" has the meaning specified in Section 2.02.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust, or
unincorporated organization, or any governmental agency, officer, department,
commission, board, bureau, or instrumentality thereof.
"Redemption Offer" means the Issuer's Consent Solicitation and Offer to
Redeem for Cash a certain percentage of the outstanding shares of Common Stock
owned by the stockholders of the Corporation other than Fund II or MLGAL at
$10.15 per share, which shall be made by a Consent Solicitation and Offer to
Redeem for Cash in substantially the form of, and containing only those
material terms and conditions set forth in, Exhibit I-D attached to the Stock
Purchase Agreement.
"Redemption Purchase Price" means that amount equal to the Redemption
Shares multiplied by the Per Share Price.
"Redemption Shares" means the shares of the Common Stock tendered to the
Corporation by the Investors prior to the expiration of the Redemption Offer
which are actually redeemed and repurchased by the Corporation.
"Securities Act" means the Securities Act of 1933, as amended, and any
similar or successor Federal statute and the rules and regulations of the
Securities and Exchange Commission thereunder.
"Sellers" has the meaning specified in the first paragraph of this
Agreement.
"Sellers Shares" has the meaning specified in the Recitals to this
Agreement.
"Stock Purchase Agreement" means that certain Stock Purchase Agreement,
of even date herewith, by and among Blackstone Capital Partners II Merchant
Banking Fund L.P., Blackstone Offshore Capital Partners II Merchant Banking
Fund L.P., Blackstone Family Investment Partnership, L.P., the Corporation and
International.
"Subsequent Closing" has the meaning specified in Section 3.01.
"Subsequent Closing Date" has the meaning specified in Section 3.01.
"Subsequent Closing Shares" means the Escrow Shares less the Redemption
Shares.
"Tax Returns" means any return, report, information return, or other
document (including any related or supporting information) filed or required
to be filed with any governmental agency, department, commission, board,
bureau, or instrumentality in connection with the determination, assessment,
collection, or administration or any Taxes.
"Taxes" means all federal, state, local, or foreign taxes (including
excise taxes, occupancy taxes, employment taxes, unemployment taxes, ad
valorem taxes, custom duties, transfer taxes, and fees), levies, imposts,
fees, impositions, assessments, or other governmental charges of any nature
imposed upon a Person including all taxes or governmental charges imposed upon
any of the personal properties, real properties, tangible or intangible
assets, income, receipts, payrolls, transactions, stock transfers, capital
stock, net worth or franchises of a Person (including all sales, use,
withholding or other taxes which a Person is required to collect and/or pay
over to any government), and all related additions to tax, penalties or
interest thereon.
"Total Shares" means 5,217,685 of the Sellers Shares tendered to the
Corporation by the Sellers to enable the Corporation to satisfy its redemption
obligation under this Agreement, 5,135,768 of which shall be Fund II Shares
and 81,917 of which shall be MLGAL Shares.
ARTICLE II.
REDEMPTION AND SALE
Section 1.021. Redemption and Repurchase of the Redeemed Shares.
Pursuant to Section 2.03 of this Agreement, the Corporation agrees to redeem
and repurchase up to a maximum of 5,217,685 of the Sellers Shares and the
Sellers agree to tender and sell to the Corporation a sufficient number of the
Sellers Shares to enable the Corporation to redeem and repurchase the Sellers
Shares as contemplated hereby. All redemptions of the Sellers Shares
hereunder shall be allocated between the Sellers as follows: (i) 98.43% to
Fund II and (ii) 1.57% to MLGAL.
Section 1.022. Per Share Purchase Price. The redemption price of each
of the Sellers Shares redeemed and repurchased by the Corporation on both the
Initial Closing Date and the Subsequent Closing Date shall be Ten Dollars and
Fifteen Cents ($10.15) ("Per Share Price").
Section 1.023. Time and Manner of Redemption and Repurchase. On the
Initial Closing Date, (i) the Corporation shall redeem and repurchase from the
Sellers, and the Sellers shall sell to the Corporation, the Initial Closing
Shares, and (ii) the Sellers shall deposit the Escrow Shares with the Escrow
Agent and the Corporation shall deposit the Escrow Amount with the Escrow
Agent, in each case to be held and applied as provided in the Escrow
Agreement. On the Subsequent Closing Date and in accordance with the
procedures specified in the Escrow Agreement, the Corporation shall redeem and
repurchase from the Sellers, and the Sellers shall sell to the Corporation,
the Subsequent Closing Shares and the remaining Escrow Shares, if any, shall
be returned to the Sellers.
Section 1.024. Fair Consideration. The parties acknowledge and agree
that the consideration provided for in this Article II represents fair
consideration and reasonable equivalent value for the sale and transfer of the
Initial Closing Shares, the Subsequent Closing Shares and the transactions,
covenants, and agreements set forth in this Agreement, which consideration was
agreed upon as the result of arm's-length, good-faith negotiations between the
parties and their respective representatives.
ARTICLE III.
CLOSINGS
Section 1.031. Closing, Time and Place. The initial closing (the
"Initial Closing") of the redemption of the Initial Closing Shares as
contemplated herein shall take place at the offices of Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇, Indianapolis, Indiana simultaneously with the "Closing" under the Stock
Purchase Agreement (the "Initial Closing Date"). The subsequent closing (the
"Subsequent Closing") of the redemption of the Subsequent Closing Shares as
contemplated herein shall take place at the offices of Ice, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇, Indianapolis, Indiana at 11:00 a.m. (Eastern Standard Time) on two (2)
Business Days after the Redemption Offer expires (the "Subsequent Closing
Date").
Section 1.032. Deliveries to the Corporation at the Initial Closing. At
the Initial Closing and simultaneously with the deliveries to the Sellers
specified in Section 3.03, the Sellers shall deliver or cause to be delivered
to the Corporation the following:
(a) Certificates representing the Total Shares, duly endorsed or
accompanied by stock powers duly executed in blank (and any stock powers which
may be required for transfer of the Escrow Shares), of which Total Shares the
Initial Closing Shares shall be delivered to the Corporation for redemption
and the Escrow Shares shall be delivered for deposit with the Escrow Agent.
(b) A counterpart of the Escrow Agreement duly executed by each of
the Sellers;
(c) A certificate signed by each of the Sellers stating that each
of the representations and warranties of the Sellers in Article IV of this
Agreement are true, correct and complete on the Initial Closing Date; and
(d) A certificate of signed by a general partner of Fund II and
MLGAL:
(i) acknowledging delivery by the Corporation of the items
set forth in Section 3.03; and
(ii) certifying the incumbency of the individuals signing
this Agreement on behalf of Fund II and MLGAL.
Section 1.033. Deliveries to Sellers at the Initial Closing. At the
Initial Closing and simultaneously with the deliveries to the Corporation
specified in Section 3.02, the Corporation shall deliver or cause to be
delivered to the Sellers or the Escrow Agent, as applicable, the following:
(a) The Initial Closing Purchase Price by wire transfer in
immediately available federal funds, $43,898,049.65 of which shall be wired to
Account No. ▇▇▇-▇▇-▇▇▇, ABA Routing No. 021-000238 at ▇▇▇▇▇▇ Guaranty Trust
Company of New York for the benefit of Fund II, and $700,187.60 of which shall
be wired to Account Number ▇▇▇-▇▇-▇▇▇, ABA Routing No. 021-000238 at ▇▇▇▇▇▇
Guaranty Trust Company of New York for the benefit of MLGAL;
(b) A counterpart of the Escrow Agreement duly executed by the
Escrow Agent and the Corporation;
(c) The Escrow Amount and the certificates representing the Escrow
Shares (together with the stock powers referred to in Section 3.02(a)) shall
be delivered to the Escrow Agent to be held and delivered pursuant to the
terms and conditions of the Escrow Agreement; and
(d) A certificate of the Corporation's Secretary acknowledging
delivery by the Sellers of the items set forth in Section 3.02.
Section 1.034. Deliveries at the Subsequent Closing. At the Subsequent
Closing, the Escrow Agent shall make the deliveries to the parties
contemplated by the terms and conditions of the Escrow Agreement. The parties
hereto shall take all such other steps and actions in connection therewith as
may be reasonably necessary to facilitate the redemption of the Subsequent
Closing Shares as contemplated herein.
ARTICLE IV.
SEVERAL REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller severally (and not jointly) represents and warrants to the
Corporation that the following statements are true as to such Seller (the
representations and warranties in Section 4.01are made solely by Fund II and
the representations and warranties in Section 4.02 are made solely by MLGAL):
Section 1.041. Organization of Fund II. Fund II is a limited
partnership duly organized and existing and in good standing under the laws of
the State of Connecticut, and is duly qualified as a foreign limited
partnership and is in good standing to do business in every jurisdiction in
which such qualification is necessary because of the nature of the properties
owned, leased or operated by it or the nature of the businesses conducted by
it, except in such jurisdictions in which, in the aggregate, the failure to so
qualify would not have a Material Adverse Effect on Fund II.
Section 1.042. Organization of MLGAL. MLGAL is a limited partnership
duly organized and existing and in good standing under the laws of the State
of Connecticut, and is duly qualified as a foreign limited partnership and is
in good standing to do business in every jurisdiction in which such
qualification is necessary because of the nature of the properties owned,
leased or operated by it or the nature of the businesses conducted by it,
except in such jurisdictions in which, in the aggregate, the failure to so
qualify would not have a Material Adverse Effect on MLGAL.
Section 1.043. Title to Shares. The Seller has legal, valid, and
marketable title to the Sellers Shares being sold by it hereunder, and upon
the consummation of the transactions contemplated by this Agreement, the
Corporation shall acquire good and unencumbered title to any and all of such
shares it redeems and repurchases from the Seller, free of all Adverse Claims
and Liens, buy-sell agreements, cross-purchase agreements, shareholder
agreements, or restrictions or rights of any kind, other than those imposed by
the Securities Act and any applicable Blue Sky Law.
Section 1.044. Authority. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
authorized by all necessary action on the part of the Sellers. The Seller has
the full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement constitutes a
valid and legally binding obligation of the Seller, enforceable against the
Seller in accordance with its terms.
Section 1.045. No Conflict or Violation. The execution, delivery, and
performance of this Agreement by the Seller do not and shall not: (a) violate
the agreement of limited partnership of the Seller; (b) violate any provision
of law or any order, judgment, or decree of any court or other governmental or
regulatory authority applicable to the Seller; and (c) violate or result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any loan agreement, mortgage, security agreement, indenture or other
material agreement or instrument to which the Seller is a party or by which
the Seller is bound or to which any of its material properties or assets is
subject.
Section 1.046. No Consent. Except as expressly contemplated by the
Stock Purchase Agreement as conditions to the obligations of the parties
thereunder to consummate the transactions contemplated thereby, no
authorization, consent, approval, exemption, or other action by or notice to
or filing with any court or administrative or governmental body or any third
party is required to permit the Seller to execute and deliver this Agreement,
to consummate the transactions contemplated by this Agreement to, or to comply
with and fulfill the terms and conditions of this Agreement.
Section 1.047. Broker's or Finder's Commissions. No broker's or
finder's fee or commission or investment banking fee has been or will be
payable, or asserted to be payable, by the Corporation with respect to the
redemption of the Sellers Shares in accordance with the provisions of this
Agreement as a result of any action by or on behalf of the Seller; provided,
however, the Permitted Fees (as defined in the Stock Purchase Agreement) will
be payable by International in connection with the transactions contemplated
by the Stock Purchase Agreement.
Section 1.048. Representations and Warranties. The representations and
warranties contained in the foregoing Section 4.01 through Section 4.07 of
this Agreement, inclusive, are made as of the date of this Agreement, as of
the Initial Closing Date and as of the Subsequent Closing Date.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation hereby represents and warrants to the Sellers and each of
them as
follows:
Section 1.051. Organization; Qualification. The Corporation is a
corporation duly organized and existing in good standing under the laws of
State of Delaware, and is duly qualified as a foreign corporation and is in
good standing to do business in every jurisdiction in which such qualification
is necessary because of the nature of the properties owned, leased or operated
by it or the nature of the businesses conducted by it, except in such
jurisdictions in which, in the aggregate, the failure to so qualify would not
have a Material Adverse Effect on the Corporation.
Section 1.052. Authority. The execution and delivery of this Agreement
by the Corporation and the consummation by the Corporation of the transactions
contemplated hereby have been authorized by all necessary corporate action on
the part of the Board of Directors and stockholders of the Corporation. The
Corporation has the full power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement constitutes a valid and legally binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms.
Section 1.053. No Conflict or Violation. The execution, delivery, and
performance of this Agreement by the Corporation do not and shall not: (a)
violate the certificate of incorporation or by-laws of the Corporation; (b)
violate any provision of law or any order, judgment, or decree of any court or
other governmental or regulatory authority applicable to the Corporation; and
(c) except as expressly contemplated by or referenced in the Stock Purchase
Agreement, violate or result in a breach of or constitute (with due notice or
lapse of time or both) a default under any loan agreement, mortgage, security
agreement, indenture, or other material agreement or instrument to which the
Corporation is a party or by which the Corporation is bound or to which any of
its material properties or assets is subject.
Section 1.054. No Consent. Except as contemplated by the Stock Purchase
Agreement as conditions to the obligations of the parties thereunder to
consummate the transactions consummated thereby, no authorization, consent,
approval, exemption, or other action by or notice to or filing with any court
or administrative or governmental body or any third party is required to
permit the Corporation to execute and deliver this Agreement, to consummate
the transactions contemplated by this Agreement or to comply with and fulfill
the terms and conditions of this Agreement.
Section 1.055. Bankruptcy. The Corporation is not involved in any
proceedings by or against it in any court under bankruptcy law or any other
insolvency or debtor's relief law, whether Federal, state or foreign, or for
the appointment of a trustee, receiver, liquidator, assignee, sequestrator, or
other similar official. The Corporation is solvent, meaning it is able to
satisfy its debts as they become due.
Section 1.056. Broker's or Finder's Commissions. No broker's or
finder's fee or commission or investment banking fee has been or will be
payable, or asserted to be payable, by either of the Sellers with respect to
the redemption of the Sellers Shares in accordance with the provisions of this
Agreement as a result of any action by or on behalf of the Corporation or
International or any of their subsidiaries.
Section 1.057. Representations and Warranties. The representations and
warranties contained in the foregoing Sections 5.01 through 5.06 of this
Agreement, inclusive, are made as of the date of this Agreement, as of the
Initial Closing Date and as of the Subsequent Closing Date.
ARTICLE VI.
COVENANTS OF THE CORPORATION
Section 1.061. Redemption of the Redemption Share . On the Subsequent
Closing Date and in accordance with the procedures specified in the Escrow
Agreement and the Redemption Offer, the Corporation shall redeem the
Redemption Shares and deliver the Redemption Purchase Price to those Investors
that tendered the Redemption Shares.
Section 1.062. Fees. On the Initial Closing Date, the Corporation shall
cause ▇▇▇▇▇▇ International, Inc. ("International"), its wholly-owned
subsidiary, to pay the "Permitted Fees" (as defined in the Stock Purchase
Agreement) in accordance with the Stock Purchase Agreement.
ARTICLE VII.
TAXES
Section 1.071. Taxes. All federal, state, foreign and local income
Taxes and any deficiency, interest or penalty asserted with respect thereto
that is imposed in connection with the repurchase and redemption of the
Initial Closing Shares and the Subsequent Closing Shares shall be paid by the
Sellers.
Section 1.072. Cooperation on Tax Matters. From and after the Initial
Closing Date, upon reasonable notice and during normal business hours, the
Corporation shall, and the Corporation shall cause International to, provide
access to the Sellers and their attorneys, accountants, and other
representatives to such Files and Records as the Sellers may reasonably deem
necessary to properly prepare for, file, prove, answer, prosecute, and/or
defend any Tax Return, filing, audit, protest, claim, suit, inquiry, or other
proceeding.
ARTICLE VIII.
TERMINATION
Section 1.081. Conditions of Termination. Notwithstanding anything to
the contrary contained herein, this Agreement shall terminate, and the
transactions contemplated hereby shall terminate without action by any party
hereto, if and only if the Stock Purchase Agreement is terminated for any
reason prior to the completion of the "Closing" thereunder.
Section 1.082. Effect of Termination. In the event of termination
pursuant to Section 8.01, this Agreement shall have not further effect, with
no liability on the part of any party hereto.
ARTICLE IX.
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS
Section 1.091. Conditions Precedent to the Obligations of the
SellersThe obligations of each Seller hereunder are subject to the
completion, simultaneously with the Initial Closing of the "Closing" under the
Stock Purchase Agreement.
ARTICLE X.
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE CORPORATION
Section 1.101. Conditions Precedent to the Obligations of the
Corporation. The obligations of the Corporation hereunder are subject to the
completion, simultaneously with the Initial Closing of the "Closing" under the
Stock Purchase Agreement.
ARTICLE XI.
MISCELLANEOUS
Section 1.111. Public Announcements. No party shall make any press
release or public announcement concerning the transactions contemplated by
this Agreement prior to or after the Closing Date, except as required by law
or as agreed upon by all parties.
Section 1.112. Expenses. The Corporation shall cause International to
pay on the Initial Closing Date all legal expenses of the parties incurred in
connection with this Agreement.
Section 1.113. Headings. The article, section, and paragraph headings
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
Section 1.114. Construction.
(a) The parties have participated jointly in the negotiation and
drafting of this Agreement, and, in the event of an ambiguity or a question of
intent or a need for interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of
any of the provisions of this Agreement.
(b) Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise.
(c) The word "including" means "including, without limitation."
Section 1.115. Severability. If any provision of this Agreement is
declared by any court or other governmental body to be null, void, or
unenforceable, this Agreement shall be construed so that the provision at
issue shall survive to the extent it is not so declared and that all of the
other provisions of this Agreement shall remain in full force and effect.
Section 1.116. Entire Agreement. This Agreement, the Stock Purchase
Agreement and the Escrow Agreement (and the exhibits and schedules to such
documents) contain the entire understanding among the parties hereto with
respect to the transactions contemplated hereby and supersedes and replaces
all prior and contemporaneous agreements and understandings, oral or written,
with regard to those transactions. All Exhibits and Schedules hereto are
expressly made a part of this Agreement as fully as though completely set
forth herein.
Section 1.117. Survival. The representations and warranties of the
parties in this Agreement shall survive the execution and delivery of this
Agreement and the closings hereunder for a period of three (3) years;
provided, however, the representations and warranties of the Sellers in
Section 4.03 hereof shall survive indefinitely.
Section 1.118. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day of transmission if sent
via facsimile transmission to the facsimile number given below, provided that
telephonic confirmation of receipt is obtained promptly after completion of
transmission, (c) on the day after delivery to a nationally recognized
overnight courier service or the Express Mail service maintained by the United
States Postal Service, or (d) on the fifth (5th) day after mailing, if mailed
to the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and addressed as follows:
If to the Corporation, to:
▇▇▇▇▇▇ Holdings, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Tel. No. ▇▇▇-▇▇▇-▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
If to either of the Sellers, to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ahn
Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for the purpose of this Section 11.08 by
giving the other parties written notice of its new address in the manner set
forth above.
Section 1.119. Amendments; Waivers. This Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance.
Any waiver by any party of any condition, or of the breach of any provision,
term, covenant, representation, or warranty contained in this Agreement, in
any one or more instances, shall not be deemed to be or construed as a further
or continuing waiver of any condition or of the breach of any other provision,
term, covenant, representation, or warranty of this Agreement.
Section 11.10. Parties in Interest. Nothing in this Agreement is
intended to confer any rights or remedies under or by reason of this Agreement
on any Person other than the Sellers, and the Corporation and their respective
successors and permitted assigns.
Section 11.11. Successors and Assigns. No party hereto shall assign or
delegate this Agreement or any rights or obligations hereunder without the
prior written consent of the other parties hereto, and any attempted
assignment or delegation without prior written consent shall be void and of no
force or effect. This Agreement shall inure to the benefit of and shall be
binding upon the successors and permitted assigns of the parties hereto.
Section 11.12. Governing Law. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of New
York applicable to contracts made and performed in such state.
Section 11.13. Counterparts. This Agreement is executed in
counterparts, each of which shall be deemed an original, but all of which
shall together constitute the same instrument.
Section 11.14. Subsequent Documentation. At any time and from time to
time after the Subsequent Closing Date, the Sellers shall, upon the request of
the Corporation, and the Corporation shall, upon the request of the Sellers,
promptly execute, acknowledge, and deliver, or cause to be executed,
acknowledged, and delivered, such further instruments and other documents, and
perform or cause to be performed such further acts, as may be reasonably
required to evidence or effectuate the redemption, repurchase, transfer,
assignment, and delivery hereunder of the Initial Closing Shares and the
Subsequent Closing Shares, the performance by the parties of any of their
other respective obligations under this Agreement, and to carry out the
purposes and intent of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be
executed by their duly authorized representatives, this Agreement as of the
date first above written.
"SELLERS"
MLGAL PARTNERS, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇
Its:
MLGA FUND II, L.P.
By: MLGA PARTNERS, L.P.,
Its General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
Its:
"CORPORATION"
▇▇▇▇▇▇ HOLDINGS, INC.
By: ▇ ▇ ▇▇▇▇▇▇
Its: