Exhibit G
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of the 11th day of
January, 2000, by and among ADT SECURITY SERVICES, INC., a Delaware corporation
(the "Shareholder") and FOUNTAINHEAD DEVELOPMENT CORP., INC., a Georgia
corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Shareholder owns 450,000 shares (collectively, the "Shares") of the
Series A Convertible Preferred Stock, par value $1.00 per share, of Ridgewood
Hotels, Inc., a Delaware corporation (the "Company"); and
WHEREAS, the Shareholder desires to sell and transfer to the Purchaser all of
the Shares, and the Purchaser wishes to acquire such Shares pursuant to and in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, the parties hereto hereby agree as follows:
ARTICLE 1. PURCHASE AND SALE OF SHARES.
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1.1 Purchase and Sale.
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Subject to the terms and conditions of this Agreement, the Purchaser agrees to
purchase from the Shareholder, and the Shareholder agrees to sell, transfer and
convey to the Purchaser, all of the Shares on January 11, 2000 (the "Closing
Date").
ARTICLE 2. PURCHASE PRICE.
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2.1 Purchase Price.
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The Purchaser on the Closing Date shall pay to the Shareholder the sum of one
million six hundred fifty thousand U.S. Dollars ($1,650,000.00), in cash, in
full consideration for the Shares. The Purchaser shall pay to the Shareholder
the Purchase Price by wire transfer in immediately available funds.
2.2 Transfer Taxes.
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The Shareholder shall be responsible for all transfer and similar taxes assessed
or payable in connection with or as a result of the transfer of the Shares from
the Shareholder to the Purchaser, if any.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
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3.1 Representations and Warranties of the Shareholder.
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The Shareholder represents and warrants to the Purchaser as follows:
3.1.1 Authorization.
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The Shareholder has all necessary corporate power and authority to enter into
this Agreement and has taken all action required to execute, deliver and perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement and all other documents and instruments executed by
Shareholder pursuant hereto have been duly executed and delivered by the
Shareholder and are the valid and binding obligations of the Shareholder
enforceable against it in accordance with their terms, except as enforcement may
be limited by equitable principles limiting the right to obtain specific
performance or other equitable remedies, or by applicable bankruptcy or
insolvency laws and related decisions affecting creditors' rights generally.
3.1.2 No Conflict.
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Neither the execution, delivery and performance of this Agreement nor the
consummation of the transactions contemplated hereby will: (i) conflict with or
result in a breach of or constitute a
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default under any provision of the Articles of Incorporation or Bylaws (or other
charter documents) of the Shareholder, (ii) violate or result in a breach of or
constitute a default under any provision of law or any judgment, order, decree,
rule or regulation of any court or governmental agency to which the Shareholder
is subject or (iii) other than any effect arising out of the Litigation, as
defined in Section 5.1.1, violate or result in a breach of or constitute a
default under any contract, agreement, indenture or other instrument to which
Shareholder is bound, or result in the creation or imposition of any lien,
charge, security interest or other encumbrance upon any of the Shares.
3.1.3 Brokers, Finders.
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The Shareholder has not retained any broker or finder in connection with the
transactions contemplated herein and is not obligated and has not agreed to pay
any brokerage or finder's commission, fee or similar compensation.
3.1.4 Title to Shares.
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The Shareholder is the record and beneficial owner of and has good and valid
title to the Shares, free and clear of any liens, pledges, charges, security
interests, and encumbrances, other than any effect arising out of the
Litigation.
3.1.5 Governmental and Other Consents.
--------------------------------
No authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any third party, is
or will be necessary for, or in connection with, the offer, sale or delivery by
Shareholder of the Shares, or for the performance by Shareholder of its
obligations under this Agreement.
3.1.6 Litigation.
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Except for the Litigation, there is no action, suit, proceeding or investigation
pending or, to Shareholder's knowledge, threatened, against Shareholder that
might call into question the validity of, or hinder the enforceability or
performance of, this Agreement or any action taken or
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to be taken pursuant hereto. Shareholder is not in default with respect to any
order, writ, injunction, decree, ruling or decision of any court, commission,
board or other government agency by which Shareholder is bound that relates to
the Shares.
3.2 Disclaimer of Other Representations and Warranties.
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Except as expressly set forth in Section 3.1 hereof, the Shareholder disclaims
all other representations and warranties, whether expressed or implied.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
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4.1 Representations and Warranties.
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The Purchaser represents and warrants to the Shareholder as follows:
4.1.1 No Conflict.
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Neither the execution, delivery and performance of this Agreement nor the
consummation of the transactions contemplated hereby will: (i) conflict with or
result in a breach of or constitute a default under any provision of the
Articles of Incorporation or Bylaws (or other charter documents) of the
Purchaser, (ii) violate or result in a breach of or constitute a default under
any provision of law or any judgment, order, decree, rule or regulation of any
court or governmental agency to which the Purchaser is subject or (iii) other
than any effect arising out of the Litigation, violate or result in a breach of
or constitute a default under any contract, agreement, indenture or other
instrument to which Purchaser is bound, or result in the creation or imposition
of any lien, charge, security interest or other encumbrance upon any of the
Shares.
4.1.2 Investment Only.
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The Purchaser is purchasing the Shares solely for its own account for investment
purposes only and not with a view to the distribution or resale thereof. The
Purchaser will not sell or transfer any of the Shares (or any securities issued
in substitution, reclassification or recapitalization) in violation of
applicable federal or state securities laws. The Purchaser is an "accredited
investor" within the meaning of Rule 501 under the United States Securities Act
of 1933, as amended to
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date (the "Securities Act"). The Purchaser understands that the Shares have not
been registered under the Securities Act by reason of specified exemptions
therefrom which depend upon, among other things, the bona fide nature of its
investment intent as expressed herein and as explicitly acknowledged hereby, or
under any applicable state securities laws. The Purchaser understands that a
legend relating to these matters appears on the back of the certificate for the
Shares, and that the Shareholder has taken no action to cause such legend to be
removed in connection with this agreement.
4.1.3 Brokers, Finders.
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The Purchaser has not retained any broker or finder in connection with the
transactions contemplated herein and is not obligated and has not agreed to pay
any brokerage or finder's commission, fee or similar compensation.
4.1.4 Financial Condition.
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The Purchaser has the financial capabilities to fully meet and perform all of
its obligations under this Agreement.
4.1.5 Authorization.
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The Purchaser has all necessary power and authority to enter into this Agreement
and has taken all action required to execute, deliver and perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement and all other documents and instruments executed by Purchaser
pursuant hereto have been duly executed and delivered by the Purchaser and are
the valid and binding obligations of the Purchaser enforceable against it in
accordance with their terms, except as enforcement may be limited by equitable
principles limiting the right to obtain specific performance or other equitable
remedies, or by applicable bankruptcy or insolvency laws and related decisions
affecting creditors' rights generally.
4.1.6 Governmental and Other Consents.
--------------------------------
No authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any third party, is
or will be necessary for, or in connection with, the purchase by the
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Purchaser of the Shares, or for the performance by Purchaser of its obligations
under this Agreement.
4.1.7 Litigation.
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Except for the Litigation, there is no action, suit, proceeding or investigation
pending or, to Purchaser's knowledge, threatened, against Purchaser that might
call into question the validity of, or hinder the enforceability or performance
of, this Agreement or any action taken or to be taken pursuant hereto.
4.2 Disclaimer of Other Representations and Warranties.
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Except as expressly set forth in Section 4.1 hereof, the Purchaser disclaims all
other representations and warranties, whether expressed or implied.
ARTICLE 5. COVENANTS AND AGREEMENTS.
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5.1 Agreements Regarding Litigation.
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5.1.1 No Representations.
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The parties acknowledge that certain lawsuit in the Court of Chancery of the
State of Delaware, C.A. No. 14267, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ v. ▇▇▇▇▇▇▇ ▇. Early,
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Triton Group, Ltd. and
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Ridgewood Properties, Inc. (the "Litigation"). No representations have been
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made by either party to the other party regarding the outcome of the Litigation.
5.1.2 If Rescission Is Ordered.
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If the court grants plaintiff's request for rescission of the 1994 stock
repurchase at issue in the Litigation, this section shall apply. "Rescission"
for purposes of this Agreement means a transaction whereby the Company is
entitled to receive Shares, either alone or with cash (other than damages, which
cash payments are addressed in Section 5.1.3) from the Shareholder, whether or
not the Shareholder is also entitled to receive shares of Common Stock of the
Company, par value $0.01 per share ("Common Stock") from the Company.
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When Rescission Is Required. When the court requires that the Rescission must
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be completed, the Purchaser agrees to return to the Shareholder, and the
Shareholder agrees to accept from the Purchaser, upon the Shareholder's
completion of such Rescission, the Shares, and the Shareholder agrees to return
to the Purchaser the purchase price set forth in Section 2.1 ($1,650,000). If
the Purchaser has converted all or part of the Shares into Common Stock, all
such shares of Common Stock will be included in such return to the Shareholder
without adjustment to the purchase price being returned as set forth in the
previous sentence.
Simultaneously with the completion of the Rescission, the Purchaser agrees to
purchase from the Shareholder all of the shares of Common Stock received by the
Shareholder from the Company in the Rescission (if any). For these shares, the
Purchaser shall pay an aggregate purchase price in cash equal to (1) $1,650,000,
plus (2) an amount equal to fifty percent of the product of (x) the amount paid
by the Shareholder to the Company in the Rescission minus any amount that the
Company is required to pay pursuant to the court's order to reimburse the
plaintiffs for attorneys fees and expenses, multiplied by (y) the Purchaser's
Ownership Fraction after the completion of such purchase. If no court order
addressing the reimbursement of plaintiffs' attorneys fees and expenses has been
issued prior to making the above payment, then the above payment shall be made
at the time of the Rescission without deducting any amount for such fees and
expenses. If the court subsequently issues an order requiring the Company to
pay any portion of plaintiffs' attorneys fees and expenses, then the Shareholder
shall refund to the Purchaser a portion of the amount paid pursuant to item (2)
above reflecting the calculation of such payment adjusted for such subsequent
order.
The "Ownership Fraction" equals (1) the total number of shares of Common Stock
that the person in question owns or has the right to acquire, whether by
exercise of options or other rights, or conversion of securities, divided by (2)
the total number of outstanding shares of Common Stock, including shares that
may be issued upon exercise of options or other rights, or conversion of
securities.
Pending Appeal, If Any. If a Rescission is ordered, then if the Shareholder
----------------------
elects to appeal such order, Shareholder agrees to use its commercially
reasonable efforts to cause such Rescission order to be stayed pending the
outcome of the appeal. Pending such appeal, if the court orders
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that something must be done with the Shares, then, solely to the extent that the
Shareholder is unable to comply with such order as a result of having
transferred the Shares to Purchaser pursuant to this Agreement, the Purchaser
agrees to, at its option, either (1) take all actions with respect to the Shares
necessary to place the Shareholder in a position to comply with such order or
(2) if such order need not be complied with if the Shareholder posts a bond, not
take the actions described in (1) and reimburse the Shareholder for the cost of
the bond.
5.1.3 If Damages Are Ordered.
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If as a result of the Litigation the court orders that the Shareholder, Triton
Management Group or any of their respective affiliates (the "Shareholder
Parties") must pay damages to the Company, this section shall apply. This
section shall apply whether or not the court also orders Rescission.
When Payment of Damages Is Required. If the court requires that damages must be
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paid (in addition to any cash payment in connection with a Rescission), then as
consideration for its purchase of the Shares, upon the payment of any required
damages by any of the Shareholder Parties (but, if such Shareholder Parties
elect to appeal, only after the court's entry of a final non-appealable order,
and if no appeal is elected, only after the expiration of time after which no
appeal can be taken), the Purchaser shall pay an amount to the Shareholder equal
to fifty percent of (x) such damages minus any amount that the Company is
required to pay pursuant to the court's order to reimburse the plaintiffs for
attorneys fees and expenses, multiplied by (y) the Purchaser's Ownership
Fraction as of the date on which the damages are paid. If no court order
addressing the reimbursement of plaintiffs' attorneys fees and expenses has been
issued prior to making the above payment, then the above payment shall be made
without deducting any amount for such fees and expenses. If the court
subsequently issues an order requiring the Company to pay any portion of
plaintiffs' attorneys fees and expenses, then the Shareholder shall refund to
the Purchaser a portion of the amount paid pursuant to item (2) above reflecting
the calculation of such payment adjusted for such subsequent order. If the
court requires payment of the damages while an appeal is pending and such
payment can be avoided by Shareholder posting a bond, then the Purchaser agrees,
if it requests the Shareholder to post a bond in lieu of payment of the damages
while the appeal is pending, to reimburse the Shareholder for the cost of
posting the bond.
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Pending Appeal, If Any. If the Shareholder elects to appeal the damages order,
----------------------
Shareholder agrees to use its commercially reasonable efforts to cause such
damages order to be stayed pending the outcome of the appeal. If in connection
with the appeal of a damages order, the court orders that something must be done
with the Shares, then, solely to the extent that the Shareholder is unable to
comply with such order as a result of having transferred the Shares to Purchaser
pursuant to this Agreement, the Purchaser agrees to, at its option, either (1)
take all actions with respect to the Shares necessary to place the Shareholder
in a position to comply with such order or (2) if such order need not be
complied with if the Shareholder posts a bond, not take the actions described in
(1) and reimburse the Shareholder for the cost of the bond.
No Force Or Effect Under Certain Circumstances. This Section 5.1.3 shall be of
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no force or effect if the court orders Rescission and, as part of such order,
Shareholder is not entitled to receive shares of Common Stock from the Company.
5.1.4 If Appeal is Successful.
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If the Shareholder is successful on appeal, the parties agree to take all
reasonable steps to undo any actions taken under Sections 5.1.2 and 5.1.3, so
that each party is in the position it was in prior to the taking of such
actions. If the Shareholder is successful in part on appeal, the parties shall
at that time discuss how best to take such reasonable steps as can be taken to
put each party in as similar a position as possible as it was prior to the
taking of such actions under Sections 5.1.2 and 5.1.3.
5.2 Agreement Regarding Dividends.
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Notwithstanding the performance by Shareholder and Purchaser in accordance
herewith, Purchaser shall retain any and all rights to, and interests in, any
dividends accrued, paid or payable with respect to the Shares prior to the date
of such performance by the parties.
5.3 Agreement Regarding Fees of Counsel to the Shareholder.
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The Purchaser agrees to cause the Company to continue its arrangement with the
Shareholder whereby the Company will pay two-thirds of the fees and expenses of
Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in connection with the Litigation and the Shareholder
will pay one-third of such fees and expenses.
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ARTICLE 6. CLOSING DATE, CONDITIONS AND TRANSACTIONS.
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6.1 Closing Date and Place.
----------------------
The consummation of the sale and purchase of the Shares contemplated by this
Agreement (the "Closing") will take place simultaneously with the execution of
this Agreement or at such other date and time as may be mutually agreeable to
the parties hereto (the "Closing Date").
ARTICLE 7. INDEMNIFICATION.
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7.1 Indemnification by the Shareholder.
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Subject to the limits set forth in this Article 7, the Shareholder agrees to
indemnify, defend and hold the Purchaser and each of the Purchaser's successors
and assigns (the Purchaser and such persons are collectively hereinafter
referred to as the "Purchaser's Indemnified Persons"), harmless from and against
any and all loss, liability, damage or deficiency (including interest,
penalties, costs of preparation and investigation, and reasonable attorneys'
fees) (collectively, "Losses") that the Purchaser's Indemnified Persons may
suffer, sustain, incur or become subject to arising out of or due to: (a) any
inaccuracy of any representation of the Shareholder in this Agreement, any
schedule or exhibit hereto or any certificate or other document delivered
pursuant hereto; (b) the breach of any warranty of the Shareholder in this
Agreement, any schedule or exhibit hereto or any certificate or other document
delivered pursuant hereto; and (c) the nonfulfillment of any covenant,
undertaking, agreement or other obligation of the Shareholder under this
Agreement, any schedule or exhibit hereto or any certificate or other document
delivered pursuant hereto, not otherwise waived by the Purchaser.
7.2 Indemnification by the Purchaser.
--------------------------------
Subject to the limits set forth in this Article 7, the Purchaser agrees to
indemnify, defend and hold the Shareholder and the Shareholder's successors and
assigns (the Shareholder and such persons are hereinafter collectively referred
to as the "Shareholder's Indemnified Persons"), harmless from and against any
and all Losses that the Shareholder's Indemnified Persons may suffer, sustain,
incur or become subject to arising out of or due to: (a) any inaccuracy of any
representation of the Purchaser in this Agreement, any schedule or exhibit
hereto, or any
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certificate or other document delivered pursuant hereto; (b) the breach of any
warranty of the Purchaser in this Agreement, any schedule or exhibit hereto, or
any certificate or other document delivered pursuant hereto; and (c) the
nonfulfillment of any covenant, undertaking, agreement or other obligation of
the Purchaser under this Agreement, any schedule or exhibit hereto, or any
certificate or other document delivered pursuant hereto not otherwise waived by
the Shareholder.
7.3 Survival of Representations and Warranties; Threshold.
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Except for the representation and warranty of Shareholder in Section 3.1.4,
which shall survive until the expiration of the applicable statute of
limitations, the several representations and warranties of the parties contained
in this Agreement or in any document delivered pursuant hereto and the parties'
right to indemnity in accordance with this Article 7 for breaches of such
representations and warranties shall survive the Closing Date and shall remain
in full force and effect thereafter for a period of 18 months after the Closing
Date and shall be effective with respect to any inaccuracy therein or breach
thereof, notice of which shall have been duly given within such 18-month period
in accordance with Section 7.4 hereof, after which 18-month period they shall
terminate and be of no further force or effect. Anything to the contrary
contained herein notwithstanding, neither party shall be entitled to any
recovery from the other party with respect to any inaccuracy or breach of such
representations or warranties unless and until the amount of such Losses
suffered, sustained or incurred by the asserting party, or to which such party
becomes subject, by reason of such inaccuracy or breach, shall exceed $50,000
calculated on a cumulative basis and not a per item basis (the "Basket Amount"),
but in no event shall the Shareholder or the Purchaser be liable to the other,
in each case, for breaches of representations and warranties in an aggregate
amount in excess of twenty-five percent (25%) of the Purchase Price (the "Cap"),
except with respect to any breach by Shareholder of the representation and
warranty made in Section 3.1.4, as to which the Cap shall equal $1,650,000. The
covenants and agreements of the parties contained in this Agreement shall
survive according to their respective terms and breaches thereof shall not be
subject to the Cap or the Basket Amount.
7.4 Notice and Opportunity to Defend.
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If there occurs an event which either party asserts is an indemnifiable event
pursuant to Sections 7.1 or 7.2 hereof, the party seeking indemnification (the
"Indemnitee") shall notify the
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party obligated to provide indemnification (the "Indemnitor") promptly. If such
event involves (a) any claim, or (b) the commencement of any action or
proceeding by a third person, the Indemnitee shall give the Indemnitor written
notice of such claim or the commencement of such action or proceeding. Delay or
failure to so notify the Indemnitor shall only relieve the Indemnitor of its
obligations to the extent, if at all, that it is prejudiced by reasons of such
delay or failure. The Indemnitor shall have a period of 30 days within which to
respond to the Indemnitee's notice, which response will be in writing. If the
Indemnitor accepts responsibility, then the Indemnitor shall be obligated to
compromise or defend, at its own expense and by counsel chosen by the Indemnitor
and reasonably satisfactory to the Indemnitee, such matter, and the Indemnitor
shall provide the Indemnitee with such assurances as may be reasonably required
by the Indemnitee to assure that the Indemnitor will assume and be responsible
for the entire liability at issue, subject to the limitations set forth in
Section 7.5 hereof. If the Indemnitor does not respond within such 30-day period
or rejects responsibility for such matter in whole or in part, the Indemnitee
shall be free to pursue, without prejudice to any of its rights hereunder, such
remedies as may be available to the Indemnitee under applicable law. The
Indemnitee agrees to cooperate fully with the Indemnitor and its counsel in the
defense against any such asserted liability. In any event, the Indemnitee shall
have the right to participate at its own expense in the defense of such asserted
liability. Any compromise of such asserted liability by the Indemnitor shall
require the prior written consent of the Indemnitee and until such consent is
obtained the Indemnitor shall continue the defense of such asserted liability.
In addition, any compromise of such asserted liability shall include as an
unconditional term thereof the giving of a complete release from liability with
respect to such action or claim to the Indemnitee.
7.5 Reduction for Insurance.
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The amount which an Indemnitor is required to pay to, for, or on behalf of an
Indemnitee pursuant to this Article 7 shall be reduced (including, without
limitation, retroactively) by any insurance proceeds actually recovered by or on
behalf of the Indemnitee in reduction of the related indemnifiable loss (the
"Indemnifiable Loss"). Amounts required to be paid, as so reduced, are
hereinafter sometimes called an "Indemnity Payment." If an Indemnitee shall
have received, or if an Indemnitor shall have paid on its behalf, an Indemnity
Payment in respect of an Indemnifiable Loss and shall subsequently receive,
directly or indirectly, insurance proceeds in
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respect of such Indemnifiable Loss, then such Indemnitee shall promptly pay to
the Indemnitor the amount of such insurance proceeds, or, if less, the amount of
the Indemnity Payment. The parties hereto agree that the foregoing shall not
affect the subrogation rights of any insurance companies making payments
hereunder.
ARTICLE 8. MISCELLANEOUS.
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8.1 Expenses.
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Except as otherwise set forth in this Agreement, each of the parties hereto
shall pay its own expenses and costs incurred or to be incurred by it in
negotiating, closing and carrying out this Agreement.
8.2 Notices.
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All notices, requests, demands and other communications given hereunder
(collectively, "Notices") shall be in writing and delivered personally or by
overnight courier to the parties at the following addresses or sent by
telecopier or telex, with confirmation received, to the telecopy number
specified below:
8.2.1 If to the Shareholder at:
ADT Security Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
8.2.2 If to the Purchaser at:
Fountainhead Development Corp., Inc.
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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8.2.3 With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
8.2.4 All Notices shall be deemed delivered when actually received if
delivered personally or by overnight courier, sent by telecopier or telex
(promptly confirmed in writing), addressed in accordance with Sections 8.2.1 or
8.2.2 hereof, as the case may be. Each of the parties shall hereafter notify
the other in accordance with this Section 8.2 of any change of address or
telecopy number to which notice is required to be mailed or sent.
8.3 Counterparts.
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This Agreement may be executed simultaneously in one or more counterparts, and
by different parties hereto in separate counterparts, each of which when
executed shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
8.4 Entire Agreement.
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This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
8.5 Headings.
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The headings contained in this Agreement and in the Schedules and Exhibits
hereto are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.6 Assignment; Amendment of Agreement.
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This Agreement shall be binding upon the respective successors and assigns of
the parties hereto. This Agreement may not be assigned by any party hereto
without the prior written consent of all other parties hereto, which consent
shall not be unreasonably withheld, except that no consent
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shall be required if an assignment by a party is solely the result of the
acquisition of that party by a third party or the sale by such party of all or
substantially all of its assets. This Agreement may be amended only by written
agreement of the parties hereto, duly executed and delivered by an authorized
representative of each of the parties hereto.
8.7 Governing Law.
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This Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware applicable to contracts made in
that State, without giving effect to the conflicts of laws principles thereof.
8.8 Further Assurances.
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Each party agrees that it will execute and deliver, or cause to be executed and
delivered, on or after the date of this Agreement, all such other instruments
and will take all reasonable actions as may be necessary to transfer and convey
the Shares to the Purchaser, on the terms herein contained, to consummate the
transactions contemplated hereby, and to effectuate the provisions and purposes
hereof.
8.9 No Third Party Rights.
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Except as specifically provided herein, this Agreement is not intended and shall
not be construed to create any rights in any parties other than the Shareholder
and the Purchaser and no person shall assume any rights as a third party
beneficiary hereunder.
8.10 Non-Waiver.
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The failure in any one or more instances of a party hereto to insist upon
performance of any of the terms, covenants or conditions of this Agreement, to
exercise any right or privilege in this Agreement conferred, or the waiver by
said party of any breach of any of the terms, covenants or conditions of this
Agreement shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had
occurred.
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8.11 Severability.
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If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
8.12 Waiver of Jury Trial.
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EACH OF THE PURCHASER AND THE SHAREHOLDER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the Purchaser and the Shareholder have duly executed and
delivered this Agreement as of the day and year first above written.
ADT SECURITY SERVICES, INC.
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By: /s/ [Illegible]
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Title: Vice President
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FOUNTAINHEAD DEVELOPMENT CORP., INC.
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By: /s/ ▇▇▇▇▇▇ E Panoz
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Title: Chairman
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