Exhibit 99.1
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STOCK PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made as of September 5, 2001, by
▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual ("Buyer"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual
("▇▇▇▇▇"), and ▇▇▇▇▇ Family Fund, L.L.C., a Louisiana limited liability company
("LLC" and, collectively with ▇▇▇▇▇, "Sellers").
RECITALS
Sellers desire to sell, and Buyer desires to purchase, all of the issued and
outstanding shares of common voting and non-voting stock of Petroleum
Helicopters Inc., a Louisiana corporation (the "Company"), held by Sellers (the
"Shares"), for the consideration and on the terms and conditions of this
Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 1:
"BEST EFFORTS"--reasonable efforts that a prudent Person desirous of achieving a
result would use in similar circumstances to achieve such result.
"BREACH"--a "Breach" of a representation, warranty, covenant, obligation, or
other provision of this Agreement or any instrument delivered pursuant to this
Agreement will be deemed to have occurred if there is or has been any inaccuracy
in or breach of, or any failure to perform or comply with, such representation,
warranty, covenant, obligation, or other provision, and the term "Breach" means
any such inaccuracy, breach, or failure.
"BUYER"--as defined in the first paragraph of this Agreement.
"CLOSING"--as defined in Section 2.3.
"CLOSING DATE"--the date and time as of which the Closing actually takes place.
"COMPANY"--as defined in the Recitals of this Agreement.
"CONSENT"--any approval, consent, ratification, waiver, or other authorization
(including any Governmental Authorization).
"CONTEMPLATED TRANSACTIONS"--all of the transactions contemplated by this
Agreement, including:
(a) the exercise of the Vested Options by ▇▇▇▇▇ and, as a result thereof, the
acquisition by ▇▇▇▇▇ of 43,480 shares of voting common stock of the Company;
(b) the exercise by ▇▇▇▇▇ promptly after the Closing of the
Remaining Options to purchase 15,000 shares of voting common stock and
immediately
thereafter the transfer by ▇▇▇▇▇ to Buyer of all shares issued as a result of
such exercise;
(c) the sale of the Shares by Sellers to Buyer;
(d) the execution, delivery, and performance of the Noncompetition Agreement and
the Sellers' Releases;
(e) the performance by Buyer and Sellers of their respective covenants and
obligations under this Agreement; and
(f) Buyer's acquisition and ownership of the Shares.
"CONTRACT"--any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"DAMAGES"--as defined in Section 10.2.
"DEPOSIT"--as defined in Section 2.3.
"DISCLOSURE LETTER"--the disclosure letter delivered by Sellers to Buyer
concurrently with the execution and delivery of this Agreement.
"ENCUMBRANCE"--any charge, claim, property interest, condition, equitable
interest, lien, option, pledge, security interest, right of first refusal, or
restriction of any kind, including any restriction on use, voting, transfer,
receipt of income, or exercise of any other attribute of ownership.
"GOVERNMENTAL AUTHORIZATION"--any approval, consent, license, permit, waiver, or
other authorization issued, granted, given, or otherwise made available by or
under the authority of any Governmental Body or pursuant to any Legal
Requirement.
"GOVERNMENTAL BODY"--any:
(a) federal, state, local, municipal, foreign, or other governmental
authority; and
(b) body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any
nature.
"ISSUED SHARES" - as defined in Section 3.3(b).
"KNOWLEDGE"--an individual will be deemed to have "Knowledge" of a particular
fact or other matter if such individual is actually aware of such fact or other
matter. LLC will be deemed to have "Knowledge" of a particular fact or other
matter if ▇▇▇▇▇ has Knowledge of such fact or other matter
"LEGAL REQUIREMENT"--any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"NONCOMPETITION AGREEMENT"--as defined in Section 2.4(a)(iv).
"OPTION SHARES" - shares of voting common stock issued upon exercise of all or
any of the Options.
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"OPTIONS"--as defined in Section 3.3(b).
"ORDER"--any award, decision, injunction, judgment, order, ruling, subpoena, or
verdict entered, issued, made, or rendered by any court, administrative agency,
or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS"--an action taken by a Person will be deemed to
have been taken in the "Ordinary Course of Business" if and only if such action
is consistent with the past practices of such Person and is taken in the
ordinary course of the normal operations of such Person.
"ORGANIZATIONAL DOCUMENTS"--(a) the articles or certificate of incorporation and
the bylaws of a corporation; (b) the partnership agreement and any statement of
partnership of a general partnership; (c) the limited partnership agreement and
the certificate of limited partnership of a limited partnership; (d) the
articles of organization and operating agreement of a limited liability company;
and (e) any amendment to any of the foregoing.
"PERSON"--any individual, corporation (including any non-profit corporation),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, labor union, or other entity or
Governmental Body.
"PROCEEDING"--any action, arbitration, litigation, or suit (whether civil,
criminal, or administrative) commenced, brought, conducted, or heard by or
before, or otherwise involving, any Governmental Body or arbitrator.
"RELATED PERSONS"--The children of ▇▇▇▇▇ and their spouses, as applicable, who
are subject to a Contract with the Company or its Subsidiaries.
"REMAINING OPTIONS"--as defined in Section 3.3(b).
"REMAINING OPTION SHARES" - as defined in Section 3.3(b).
"REPRESENTATIVE"--with respect to a particular Person, any director, manager,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"SECURITIES ACT"--the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
"SELLERS"--as defined in the first paragraph of this Agreement.
"SELLERS' RELEASES"--as defined in Section 2.4.
"SHARES"--as defined in the Recitals of this Agreement and more particularly
described in Section 3.3(b).
"SUBSIDIARY"--with respect to any Person (the "Owner"), any corporation or other
Person of which securities or other interests having the power to elect a
majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
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policies of that corporation or other Person (other than securities or other
interests having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its Subsidiaries; when
used without reference to a particular Person, "Subsidiary" means a Subsidiary
of the Company.
"THREATENED"--a claim, Proceeding, dispute, action, or other matter will be
deemed to have been "Threatened" against a Person if any demand has been made or
any notice has been given to such Person that would lead a reasonable Person to
conclude that such a claim, Proceeding, dispute, action, or other matter is
likely to be asserted in a lawsuit in the future.
"VESTED OPTIONS"--as defined in Section 3.3(b).
"VESTED OPTION SHARES"--as defined in Section 3.3(b).
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Subject to the terms and conditions of this Agreement, at the Closing, Sellers
will sell and transfer to Buyer the Issued Shares , and Buyer will purchase from
Sellers the Issued Shares. Sellers will sell and transfer to Buyer and Buyer
will purchase from Sellers, the Vested Option Shares and Remaining Option Shares
as provided in Section 2.5 promptly after the Closing.
2.2 PURCHASE PRICE
The purchase price (the "Purchase Price") for the Shares will be $20.50 per
Share transferred, payable at the Closing for the Issued Shares. The Purchase
Price for Option Shares issued in respect of Options exercised after the Closing
shall be paid upon transfer of such Option Shares to Buyer as provided in
Section 2.5.
2.3 CLOSING
The purchase and sale (the "Closing") provided for in this Agreement will take
place at the offices of Buyer's counsel at ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 3:00 p.m. (local time) on September 5,, 2001,
or at such earlier time or at such later time and place as the parties may
mutually agree. Subject to the provisions of Section 9, failure to consummate
the purchase and sale provided for in this Agreement on the date and time and at
the place determined pursuant to this Section 2.3 will not result in the
termination of this Agreement and will not relieve any party of any obligation
under this Agreement. In the event the Closing does not occur on or before
October 5, 2001, Buyer shall deliver to Sellers the sum of $1,000,000, to be
held by Sellers in an interest bearing account (the "Deposit") and act as
security for the performance of Buyer's obligations hereunder. Buyer hereby
pledges to Sellers, and grants to Sellers a continuing first priority security
interest in, the Deposit, for the performance by Buyer of his obligations under
this Agreement. Buyer agrees to execute such further documentation as may be
reasonably required by Sellers to perfect such security interest. At the
Closing, the Deposit shall be applied to the payment of the Purchase Price. The
Deposit is solely to ensure the
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performance by Buyer pursuant to the terms and conditions of this Agreement. If
Buyer fails, refuses or is unable for any reason to purchase the Shares in
accordance with the terms hereof, Sellers shall have the remedies specified in
Section 9.2.
2.4 CLOSING OBLIGATIONS
At the Closing:
(a) Sellers will deliver to Buyer:
(i) certificates representing the Issued Shares, duly endorsed (or
accompanied by duly executed stock powers), for transfer to Buyer;
(ii) releases in the form of Exhibit 2.4(a)(ii) executed by Sellers and the
Related Persons (collectively, "Sellers' Releases");
(iii) an undated letter of retirement by ▇▇▇▇▇ as an officer, director and
employee of the Company to be dated effective at the close of business on the
first business day after the Company or its transfer agent registers the
transfer of the Issued Shares to Buyer (▇▇▇▇▇ agrees and understands that she
shall be paid a salary of ten dollars and that she shall not be entitled to any
other salary or other compensation for services performed by her for the Company
from and after the Closing Date);
(iv) letters of resignation by the Related Persons as employees/consultants
of the Company or its Subsidiaries effective the Closing Date;
(v) noncompetition and nondisclosure agreement in the form of the
noncompetition and nondisclosure agreement provided for and attached to the
Company's Supplemental Executive Retirement Plan dated September 14, 2000, as
amended, executed by ▇▇▇▇▇ (the "Noncompetition Agreement"); and
(vi) a certificate executed by Sellers representing and warranting to Buyer
that, except as otherwise stated in such certificate or in a supplement to the
Disclosure Letter, each of Sellers' representations and warranties in this
Agreement was accurate in all material respects as of the date of this Agreement
and is accurate in all material respects as of the Closing Date as if made on
the Closing Date (giving full effect to any supplements to the Disclosure Letter
that were delivered by Sellers to Buyer prior to the Closing Date in accordance
with Section 2.5); and
(b) Buyer will deliver to Sellers:
(i) with credit being given for any Deposit with interest thereon, the Purchase
Price for the Issued Shares shall be paid by bank cashier's or certified check
payable to the order of or by wire transfer to accounts specified by LLC and
▇▇▇▇▇, in the respective amounts as specified by Sellers in writing to Buyer,
with the remaining portion of the Purchase Price for the Option Shares to be
paid as provided in Section 2.5; and,
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(ii) a certificate executed by Buyer to the effect that, except as otherwise
stated in such certificate, each of Buyer's representations and warranties in
this Agreement was accurate in all material respects as of the date of this
Agreement and is accurate in all material respects as of the Closing Date as if
made on the Closing Date.
2.5 TRANSFER OF OPTION SHARES
As soon as practicable after the Closing, from time to time, one or more times,
Sellers will deliver to the Company, with a copy to Buyer, one or more notices
addressed to the Company for exercising all or part of the Options, evidence of
payment to the Company of the exercise price thereof and act(s) of transfer or
assignment by ▇▇▇▇▇ to Buyer of such Option Shares issued upon exercise thereof
with acknowledgement by the Company of Buyer's rights thereunder or one or more
certificates representing the Option Shares, duly endorsed or accompanied by
duly executed stock powers for transfer to Buyer.
Upon delivery to Buyer of such notices exercising all or part of the Options,
evidence of payment to the Company of the exercise price thereof and such
assignment(s) to Buyer of all or part of the Option Shares, and the
acknowledgement by the Company of Buyer's rights thereunder or one or more
certificates representing the Option Shares, duly endorsed or accompanied by
duly executed stock powers for transfer to Buyer, Buyer shall pay ▇▇▇▇▇ by wire
transfer to the account as specified by ▇▇▇▇▇ in writing to Buyer the Purchase
Price of the Option Shares so transferred to Buyer.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as set forth in the Disclosure Letter, Sellers represent and warrant to
Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING; POWER
(a) Sellers have delivered to Buyer copies of the Organizational Documents of
LLC and the Company as currently in effect.
(b) LLC is a limited liability company duly organized and validly existing
under the laws of the State of Louisiana, has the power and authority and legal
right to own the Shares and to conduct its business, all in compliance with all
Legal Requirements.
(c) LLC has the power and authority and the legal right to make, deliver and
perform its obligations under this Agreement and it has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
Sellers are not and will not be required to obtain any Consent from any
Governmental Body or any other Person in connection with the execution and
delivery of this Agreement by them or the consummation or performance by them of
any of the Contemplated Transactions.
3.2 AUTHORITY; NO CONFLICT
(a) The execution, delivery and performance by LLC of this Agreement and the
compliance with the provisions hereof have been duly authorized by all
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requisite action on the part of LLC. This Agreement constitutes the legal,
valid, and binding obligation of Sellers, enforceable against Sellers in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally (the "Bankruptcy Exception"). Upon
the execution and delivery by Sellers and the Related Persons of the Sellers'
Releases, and by ▇▇▇▇▇ of the Noncompetition Agreement (collectively, the
"Sellers' Closing Documents"), the Sellers' Closing Documents will constitute
the legal, valid, and binding obligations of Sellers and the Related Persons, as
applicable, enforceable in accordance with their respective terms, subject to
the Bankruptcy Exception. Sellers have the absolute and unrestricted right,
power, authority, and capacity to execute and deliver this Agreement and the
Sellers' Closing Documents and to perform their obligations under this Agreement
and the Sellers' Closing Documents.
(b) Except as set forth in part 3.2 of the Disclosure Letter, neither the
execution and delivery of this Agreement by Sellers nor the consummation or
performance of any of the Contemplated Transactions by Sellers will, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of any provision of
the Organizational Documents of LLC;
(ii) to the Knowledge of Sellers, contravene, conflict with, or result in a
violation of, or give any Governmental Body or other Person the right to enjoin
any of the Contemplated Transactions under, or to obtain a remedy or relief that
would have a material adverse effect on the financial benefits expected to be
obtained by Buyer under the Contemplated Transactions pursuant to, any Legal
Requirement or any Order to which Sellers, or any of the assets owned or used by
any Seller, may be subject; or
(iii) to the Knowledge of Sellers, contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the right to declare
a default under, or to obtain a legal remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any Contract to
which the Company is a party that has been filed by the Company with the
Securities and Exchange Commission as an exhibit to the Company's most recently
filed annual report on Form 10-K (or incorporated as an exhibit thereto by
reference) or any report on Form 10-Q filed subsequent to such Form 10-K and
prior to the date of this Agreement (the "Material Contracts"); or
(iv) result in the imposition or creation of any Encumbrance upon or with
respect to any of the Shares, other than the limitations and restrictions set
forth in the Company's articles of incorporation and bylaws and the provisions
of the Louisiana Business Corporation Law, federal and state securities laws,
and other applicable laws ("Mandatory Limitations").
Except as set forth in part 3.2 of the Disclosure Letter, to Sellers' Knowledge,
the Company is not and will not be required to give any notice to or obtain any
Consent under any Material Contract to which the Company is a party in
connection with the execution and delivery of this Agreement by Sellers or
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the consummation or performance of any of the Contemplated Transactions by
Sellers.
3.3 CAPITALIZATION
(a) As of June 30, 2001, based on the Company's quarterly report on Form 10-Q
for the Second Quarter of 2001, the authorized capital stock of the Company
consists of (i) 12,500,000 shares of the Company's voting common stock, par
value 10(cent) per share ("voting common stock"), 2,793,386 shares of which are
outstanding, (ii) 12,500,000 shares of the Company's non-voting common stock,
par value 10(cent) per share ("non-voting common stock"), 2,404,897 shares of
which are outstanding, and (iii) 10,000,000 shares preferred stock, no par
value, no shares of which are outstanding.
(b) Sellers are the record and beneficial owners and holders of 1,423,780
shares of voting common stock of the Company, free and clear of all Encumbrances
other than Mandatory Limitations. ▇▇▇▇▇ holds currently options (collectively,
the "Options") to acquire 58,480 shares of voting common stock free and clear of
all Encumbrances other than Mandatory Limitations. With respect to the Options,
options to acquire 43,480 shares are currently exercisable ("Vested Options")
and the remaining Options to acquire 15,000 shares are not yet vested (the
"Remaining Options"). ▇▇▇▇▇ represents that at the Closing she will have the
right to exercise the Vested Options to acquire 43,480 shares of voting common
stock and that after the Closing she expects to have the right to exercise the
Remaining Options to acquire 15,000 shares of voting common stock (the
"Remaining Option Shares"). The Shares shall consist of (i) 1,423,780 shares of
voting common stock of the Company (the "Issued Shares"), (ii) 43,480 shares of
voting common stock of the Company acquired by virtue of ▇▇▇▇▇' exercise of the
Vested Options (the "Vested Option Shares"), and (iii) all Remaining Option
Shares that are issued upon the exercise of the Remaining Options; provided,
however, if any of the Remaining Option Shares or the Vested Option Shares are
not transferred to Buyer in the manner provided for in Section 2.5 on or before
September 30, 2001, Buyer shall not be obligated to pay that portion of the
Purchase Price attributable to such Shares not transferred to Buyer, and Buyer
and Sellers otherwise waive any claim either would have against the other with
respect thereto
(c) All of the 1,423,780 outstanding shares of the Company's voting common
stock currently owned by Sellers and all of the shares of the Company's common
stock which are to be issued pursuant to the exercise by ▇▇▇▇▇ of the Options
will be, when issued in accordance with the terms thereof, duly authorized,
validly issued, fully paid and non-assessable, free and clear of Encumbrances
other than Mandatory Limitations. The Shares shall constitute all of the voting
and non-voting common stock, options, warrants and other securities of the
Company or any of its Subsidiaries beneficially owned by the Sellers as of this
date and as of the Closing Date. The Issued Shares transferred to Buyer at
Closing shall constitute not less than 50.96% of all issued and outstanding
shares of voting common stock of the Company.
(d) There are no outstanding shareholder agreements, voting agreements or other
agreements of any nature which in any way restrict or affect the transfer of the
Shares or subject any of such Shares to any put, call, redemption obligation or
other similar right or obligation of any nature.
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3.4 NO MATERIAL ADVERSE CHANGE
Since December 31, 2000, there has not been any material adverse change in the
business, operations, properties, prospects, assets, or condition of any Seller
and no event has occurred or circumstance exists that may result in such a
material adverse change.
3.5 CONTRACTS WITH THE COMPANY
Except as set forth in part 3.5 of the Disclosure Letter, no Seller or any
Related Person is a party to any contract with, or has any claim or right
against, the Company or any of its Subsidiaries.
3.6 BROKERS OR FINDERS
Except as set forth in part 3.6 of the Disclosure Letter, neither the Company
nor Sellers have incurred any obligation or liability, contingent or otherwise,
for brokerage or finders' fees or agents' commissions or other similar payment
in connection with this Agreement. Sellers will indemnify and hold Buyer and the
Company harmless from the payment of any such fees, commissions or other
payment.
3.7 ABSENCE OF CERTAIN CHANGES AND EVENTS
Except as set forth in part 3.7 of the Disclosure Letter, to the Knowledge of
Sellers, since June 30, 2001 until the date of this Agreement there has not been
any:
(a) change in the Company's authorized or issued capital stock; grant of any
stock options or right to purchase shares of capital stock of the Company;
issuance by the Company of any securities convertible into capital stock of the
Company; grant of any registration rights by the Company; purchase, redemption,
retirement or other acquisition by the Company of any shares of any common or
preferred stock of the Company; or declaration of payment of any dividend or
other distribution or payment in respect of shares of common or preferred stock
of the Company;
(b) amendment to the Organizational Documents of the Company;
(c) payment by the Company of any bonuses to, or increase by the Company of the
regular salary or compensation of, ▇▇▇▇▇, any Related Person, or any director or
executive officer, or entry into any new employee, severance or similar Contract
with any of the foregoing; or
(d) adoption of, or adoption of amendments resulting in a material increase in
the benefits under, any profit sharing, bonus, deferred compensation, savings,
insurance, pension, retirement or other employee benefit plan of the Company.
3.8 SEC REPORTS
Sellers have made available to Buyer the Company's annual reports (Form 10-K),
quarterly reports (Form 10-Q), proxy statements and current reports
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(Form 8-K) for the period since December 31, 1999 (collectively, "SEC Reports")
that have been filed with the Securities and Exchange Commission ("SEC"). Except
as set forth in part 3.8 of the Disclosure Letter and except to the extent a
filed SEC Report has been revised or superceded by a subsequently filed SEC
Report, to the Knowledge of Sellers, none of the SEC Reports contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.9 SECTION 133 OF BUSINESS CORPORATION LAW
If requested by Buyer, ▇▇▇▇▇ agrees to use her Best Efforts to transmit to each
member of the Board of Directors of the Company for consideration Buyer's
request that the Board adopt a resolution of the Board to exempt the application
of Section 133 of the Louisiana Business Corporation Law ("LBCL") with respect
to the purchase of the Shares by Buyer and any subsequent "business combination"
(as such term is defined in Section 132(4) of the LBCL) between the Company and
Buyer or any affiliate of Buyer; provided in connection with any such Board
action it is understood by Buyer that ▇▇▇▇▇ will not participate in such
decision by the Board, nor will she take any action, directly or indirectly, in
opposition or in support thereof. No action or inaction by the Board will
invalidate or constitute grounds for termination of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 ORGANIZATION AND GOOD STANDING
Buyer is an individual domiciled in the State of Texas.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, subject to the
Bankruptcy Exception. Buyer has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and to perform his obligations
under this Agreement.
(b) Neither the execution and delivery of this Agreement by Buyer nor the
consummation or performance of any of the Contemplated Transactions by Buyer
will contravene, or result in a violation or breach of any provision of, or give
any Person the right to prevent, delay, or otherwise interfere in any material
respect with any of the Contemplated Transactions pursuant to:
(i) any Legal Requirement or Order to which Buyer or any of his assets may
be subject; or
(ii) any material Contract to which Buyer is a party or by which Buyer may
be bound.
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Except for the filing of an appropriate Schedule 13D and Form 3 with the SEC,
Buyer is not and will not be required to obtain any Consent from any Person in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions.
4.3 INVESTMENT INTENT
Buyer is acquiring the Shares for his own account and not with a view to their
distribution within the meaning of Section 2(11) of the Securities Act. Buyer
understands that the sale of the Shares has not been registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act that depends upon, among other things, the bona
fide nature of the investment intent as expressed herein.
4.4 RULE 144
Buyer acknowledges that the Shares must be held indefinitely unless subsequently
registered under the Securities Act, or unless an exemption from such
registration is available. Buyer is aware of the provisions of Rules 144 and
144A promulgated under the Securities Act that permit limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions.
4.5 SOPHISTICATION
Buyer (i) has such sophistication, knowledge and experience in financial and
business matters that Buyer can understand and evaluate the merits and risks of
the purchase of the Shares; (ii) has had full access to the kind of information
about the Company that registration would disclose; and (iii) can bear the risk
of losing Buyer's entire investment in the Shares.
4.6 NO RELIANCE
Buyer acknowledges that Sellers make no representations or warranties other than
those expressly set forth in this Agreement, and Buyer is not relying on any
other representations or warranties by Sellers or their Representatives.
4.7 AVAILABILITY OF FUNDS
Buyer has sufficient liquid funds to purchase the Shares and will maintain such
funds until the Closing. None of the Company's assets have been or will be sold,
mortgaged, pledged, or otherwise disposed of or encumbered to finance the
Purchase Price. Buyer intends upon acquiring the Shares to comply with all laws
and regulations applicable to such ownership and to fulfill all applicable
duties to the Company and its other shareholders as may devolve upon Buyer by
virtue of owning the Shares.
4.8 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against Buyer and that
challenges, or may have the effect of preventing, delaying, making
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illegal, or otherwise interfering with, any of the Contemplated Transactions. To
Buyer's Knowledge, no such Proceeding has been Threatened.
4.9 BROKERS OR FINDERS
Buyer has incurred no obligation or liability, contingent or otherwise, for
brokerage or finders' fees or agents' commissions or other similar payment in
connection with this Agreement and will indemnify and hold Sellers and the
Company harmless from the payment of any such fee, commission or other payment.
4.10 TRANSFER RESTRICTIONS
Buyer understands that the certificates of stock representing the Shares may
bear a legend restricting the transferability of the Shares absent compliance
with applicable provisions of the federal and state securities laws, including
but not limited to those concerning the registration of the Shares under the
Securities Act or the establishment of the availability of an exemption from
registration, and the procedures the Company has established in respect thereto.
Buyer understands that a legend to this effect may be placed on the certificates
representing the Shares acquired by Buyer continuing such restrictions on the
Shares in the hands of Buyer, and the Company is under no obligation to register
the Shares under the Securities Act.
5. COVENANTS OF SELLERS PRIOR TO CLOSING DATE
The following covenants shall apply to Sellers prior to the Closing Date and
shall terminate upon Closing:
5.1 ACCESS AND INVESTIGATION
Between the date of this Agreement and the Closing Date, Sellers will afford
Buyer and its Representatives full and free access to (i) all public information
available to Sellers concerning the Company and its Subsidiaries, and (ii) all
Contracts set forth in part 3.5 of the Disclosure Letter.
5.2 OPERATION OF THE BUSINESSES OF THE COMPANY
Between the date of this Agreement and the Closing Date, Sellers will use their
Best Efforts to provide a copy to Buyer of all public filings with the SEC and
of all press releases made by the Company during such period. Between the date
of this Agreement and the Closing Date, Sellers agree not to vote their Shares
to, and ▇▇▇▇▇ agrees not to affirmatively seek, to cause the Company or any
Subsidiary to do any of the following, provided that ▇▇▇▇▇ is not required to
take any action as a director, officer or employee of the Company that would
violate or conflict with her duties or responsibilities in such positions:
(a) to conduct its business other than in the Ordinary Course of Business; or
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(b) not to preserve intact in all material respects its current business
organization and keep available the services of the current officers of the
Company.
5.4 REQUIRED APPROVALS
As promptly as practicable after the date of this Agreement, Sellers will make
all filings required by Legal Requirements to be made by them in order to
consummate the Contemplated Transactions.
5.5 NOTIFICATION
Between the date of this Agreement and the Closing Date, each Seller will
promptly notify Buyer in writing if such Seller becomes aware of any fact or
condition that causes or constitutes a Breach of any of Sellers' representations
and warranties as of the date of this Agreement, or if such Seller becomes aware
of the occurrence after the date of this Agreement of any fact or condition that
would (except as expressly contemplated by this Agreement) cause or constitute a
Breach of any such representation or warranty had such representation or
warranty been made as of the time of occurrence or discovery of such fact or
condition, unless Sellers reasonably expect that such fact or condition will be
cured on or before the Closing Date. Should any such fact or condition known to
Sellers require any change in the Disclosure Letter if the Disclosure Letter
were dated the date of the occurrence or discovery of any such fact or
condition, Sellers will promptly deliver to Buyer a supplement to the Disclosure
Letter specifying such change. During the same period, each Seller will promptly
notify Buyer of the occurrence of any Breach of any covenant of Sellers in this
Section 5 or of the occurrence of any event that makes the satisfaction of the
conditions in Section 7 impossible or unlikely.
5.6 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to Section 9,
Sellers will not directly or indirectly solicit, initiate, or encourage any
inquiries or proposals from, discuss or negotiate with, provide any non-public
information to, or consider the merits of any unsolicited inquiries or proposals
from, any Person (other than Buyer) relating to any transaction involving the
sale of the business or assets (other than in the Ordinary Course of Business)
of the Company, or any of the capital stock of the Company, or any merger,
consolidation, business combination, or similar transaction involving the
Company.
5.7 BEST EFFORTS
Between the date of this Agreement and the Closing Date, Sellers will use their
Best Efforts to cause the conditions in Section 7 to be satisfied, provided that
▇▇▇▇▇ is not required to take any action as a director, officer or employee of
the Company that would violate or conflict with her duties or responsibilities
in such positions.
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE
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The following covenants shall apply to Buyer prior to the Closing Date and shall
terminate upon Closing:
6.1 APPROVALS OF GOVERNMENTAL BODIES
As promptly as practicable after the date of this Agreement, Buyer will make all
filings required by Legal Requirements to be made by him to consummate the
Contemplated Transactions.
6.2 DEPOSIT
Buyer shall make the Deposit required by Section 2.3 on the terms and conditions
set forth therein.
6.3 PREPARATION FOR CLOSING
Buyer shall maintain at all times sufficient liquid assets to close, will not
take or fail to take any action that renders him unable to close, and shall work
diligently toward closing as expeditiously as possible.
6.4 COMMUNICATIONS
Buyer will not, directly or indirectly, communicate with any directors,
officers, employees, customers, suppliers, lenders, or advisors of the Company,
other than Sellers and their Representatives, without the prior consent of
Sellers with respect to the specific communication. Buyer shall not, without
Sellers prior written consent, communicate to any Person any intention Buyer may
have to make, upon Closing or in the future, changes with respect to the
Company, including without limitation in the personnel, operations, or
composition of the board of directors.
6.5 NOTIFICATION
Between the date of this Agreement and the Closing Date, Buyer will promptly
notify Sellers in writing if Buyer becomes aware of any fact or condition that
causes or constitutes a Breach of any of Buyer's representations and warranties
as of the date of this Agreement, or if Buyer becomes aware of the occurrence
after the date of this Agreement of any fact or condition that would (except as
expressly contemplated by this Agreement) cause or constitute a Breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition, unless Buyer
reasonably expects that such fact or condition will be cured on or before the
Closing Date. During the same period, Buyer will promptly notify Sellers of the
occurrence of any Breach of any covenant of Buyer in this Section 6 or of the
occurrence of any event that makes the satisfaction of the conditions in Section
8 impossible or unlikely.
6.6 BEST EFFORTS
Between the date of this Agreement and the Closing Date, Buyer will use its Best
Efforts to cause the conditions in Section 8 to be satisfied.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
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Buyer's obligation to purchase the Shares and to take the other actions required
to be taken by Buyer at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS
Sellers' representations and warranties contained in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all respects as of the date of this
Agreement, and must be accurate in all respects as of the Closing Date as if
made on the Closing Date, without giving effect to any supplement to the
Disclosure Letter, unless all such inaccuracies in the aggregate do not
materially adversely affect the benefits obtained by Buyer under this Agreement
and the Contemplated Transactions.
7.2 SELLERS' PERFORMANCE
All of the covenants and obligations that Sellers are required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), including but not limited to the exercise by ▇▇▇▇▇ of the Vested
Options, and each of these covenants and obligations (considered individually),
must have been duly performed and complied with in all material respects, or
timely cured.
7.3 ADDITIONAL DOCUMENTS
Each of the following documents must have been delivered to Buyer:
(a) an opinion of Sellers' counsel, dated the Closing Date, in the form of
Exhibit 7.3(a); and
(b) such other documents as Buyer may reasonably request as necessary for the
consummation or performance of any of the Contemplated Transactions.
7.4 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or other
Order, or any substantial, credible suit filed against Buyer or Sellers by a
Governmental Body or any other Person seeking an injunction or other Order, that
(a) prohibits the sale of the Shares by Sellers to Buyer, and (b) has been
adopted or issued or filed, or has otherwise become effective, since the date of
this Agreement.
7.5 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or Threatened by any Person any substantial,
credible claim against Buyer or Sellers asserting that such Person (a) is the
holder or the beneficial owner of, or has the right to acquire or to obtain
beneficial ownership of any Shares, or (b) is entitled to all or any portion of
the Purchase Price payable for the Shares.
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8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to sell the Shares and to take the other actions required to
be taken by Sellers at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
by Sellers, in whole or in part):
8.1 ACCURACY OF REPRESENTATIONS
All of Buyer's representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the date
of this Agreement and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date, unless all such inaccuracies in the
aggregate do not materially adversely affect the benefits obtained by Sellers
under this Agreement and the Contemplated Transactions.
8.2 BUYER'S PERFORMANCE
(a) All of the covenants and obligations that Buyer is required to perform or
to comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been performed and complied with in all respects, or
timely cured.
(b) Buyer must have delivered each of the documents required to be delivered by
Buyer pursuant to Section 2.4 and must have made the cash payments required to
be made by Buyer pursuant to Section 2.4(b)(i).
8.3 CONSENTS
Each of the Consents identified in part 3.2 of the Disclosure Letter must have
been obtained and must be in full force and effect.
8.4 ADDITIONAL DOCUMENTS
Buyer must have caused the following documents to be delivered to Sellers:
(a) an opinion of Buyer's counsel, dated the Closing Date, in the form of
Exhibit 8.4(a); and
(b) such other documents as Sellers may reasonably request as necessary for the
consummation or performance of any of the Contemplated Transactions.
8.5 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or other
Order that (a) prohibits the sale of the Shares by Sellers to Buyer, and (b) has
been adopted or issued, or has otherwise become effective, since the date of
this Agreement.
9. TERMINATION
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This Section 9 sets forth the rights and remedies exercisable by the parties
before the Closing for any Breach of this Agreement and shall not apply after
the Closing to any Breach (whether the Breach occurs before or after the
Closing).
9.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be terminated
only:
(a) by either Buyer or Sellers if a material Breach of this Agreement has been
committed by the other party and such Breach has not been waived or cured on or
before the Closing Date;
(b)(i) by Buyer if any of the conditions in Section 7 has not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Sellers, if any of the conditions in Section
8 has not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Sellers to
comply with their obligations under this Agreement) and Sellers have not waived
such condition on or before the Closing Date;
(c) by mutual consent of Buyer and Sellers; or
(d) by either Buyer or Sellers if the Closing has not occurred (other than
through the failure of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) on or before December 21, 2001,
or such later date as the parties may agree upon.
9.2 EFFECT OF TERMINATION
Each party's right of termination under Section 9.1 is in addition to any other
rights it may have under this Agreement or otherwise, and the exercise of a
right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 9.1, all further obligations of the parties under
this Agreement will terminate, except that the obligations in Sections 11.1 and
11.3 will survive; provided, however, that if this Agreement is terminated by a
party because of the Breach of the Agreement by the other party or because one
or more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the other party's failure to comply
with its obligations under this Agreement, the terminating party's right to
pursue all legal remedies will survive such termination unimpaired. Upon the
failure of Buyer to perform the obligations to be performed by it prior to and
on the Closing Date and if the closing does not occur, Sellers may (i) enforce
specific performance, (ii) ▇▇▇ for damages, (iii) exercise Sellers' rights with
respect to the Deposit as secured parties under Chapter 9 of the Louisiana
Commercial Laws (La. R.S. 10:9-101 et seq.), (iv) recover costs of investigation
and defense and reasonable attorneys' fees to the extent successful in any
proceeding, and/or (iv) pursue any and all other remedies available at law or in
equity. Upon failure of Sellers to perform their obligations to be performed by
them on the Closing
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Date and if the closing does not occur, Buyer may (i) enforce specific
performance, (ii) ▇▇▇ for damages, (iii) recover costs of investigation and
defense and reasonable attorneys' fees to the extent successful in any
proceeding, and/or (iv) pursue any and all other remedies available at law or in
equity.
10. INDEMNIFICATION; REMEDIES
THIS SECTION 10 SETS FORTH THE RIGHTS AND REMEDIES EXERCISABLE BY THE PARTIES
AFTER THE CLOSING FOR ANY BREACH OF THIS AGREEMENT (WHETHER THE BREACH OCCURS
BEFORE OR AFTER THE CLOSING) AND SHALL NOT APPLY UNLESS AND UNTIL THE CLOSING
OCCURS.
10.1 SURVIVAL
All representations, warranties, covenants (other than the post-closing
covenants in Section 11.13), and obligations in this Agreement, the Disclosure
Letter, the supplements to the Disclosure Letter, the certificate delivered
pursuant to Section 2.4(a)(v), and any other certificate or document delivered
pursuant to this Agreement will survive the Closing only until April 30,, 2002
(the "Prescription Date"). Anything in this Agreement to the contrary
notwithstanding, no party from whom indemnification is sought under this
Agreement (the "indemnifying party") will have any liability to any other party
(the "claiming party") for Damages or otherwise in connection with any Breach of
any representation, warranty, covenant or other agreement made or to be
performed by the indemnifying party under this Agreement, the Disclosure Letter,
any supplements to the Disclosure Letter, or any certificate delivered pursuant
to this Agreement, unless before the Prescription Date the claiming party gives
the indemnifying party a written notice ("Notice of Claim") asserting a claim
for indemnification hereunder ("Indemnification Claim") and stating in
reasonable detail the basis for such Indemnification Claim and the facts giving
rise thereto. No indemnification shall be required to be provided by the
indemnifying party to claiming party under this Agreement with respect to any
Indemnification Claim or Damages for which a Notice of Claim is not given on or
before the Prescription Date. Notwithstanding the foregoing, the time limit set
forth in this Section 10.1 shall not apply to any Indemnification Claim to the
extent it arises out of or is based upon a Breach of the provisions of Section
11.13 of this Agreement.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLERS
Sellers, jointly and severally, will indemnify and hold harmless Buyer and his
Representatives (collectively, the "Indemnified Persons") for, and will pay to
the Indemnified Persons the amount of, any loss, liability, claim, damage,
expense (including costs of investigation and defense and reasonable attorneys'
fees) or diminution of value, whether or not involving a third-
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party claim (collectively, "Damages"), arising, directly or indirectly, from or
in connection with:
(a) any Breach of any representation or warranty made by Sellers in this
Agreement (giving full effect to the Disclosure Letter and any supplement to the
Disclosure Letter), the Disclosure Letter, the supplements to the Disclosure
Letter, or any other certificate or document delivered by Sellers pursuant to
this Agreement;
(b) any Breach of any representation or warranty made by Sellers in this
Agreement as if such representation or warranty were made on and as of the
Closing Date, giving full effect to the Disclosure Letter and any supplement to
the Disclosure Letter, and excluding without limitation any such Breach that is
disclosed in a supplement to the Disclosure Letter and is expressly identified
in the certificate delivered pursuant to Section 2.4(a)(v) as having caused the
condition specified in Section 7.1 not to be satisfied;
(c) any Breach by either Seller of any covenant or obligation of such Seller
in this Agreement; and
(d) any claim by any Person for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by any such Person with either Seller or the Company in connection with any
of the Contemplated Transactions.
Notwithstanding any other provision of this Agreement, (i) Sellers' obligation
to indemnify and hold harmless Buyer and any other Indemnified Persons under
this Section 10.2 or otherwise pay Damages under this Agreement is limited to
the aggregate amount of $1,500,000, which is Sellers' maximum aggregate
liability under this Section 10.2 or otherwise under this Agreement; provided,
however, that this limitation shall not apply to any Indemnification Claim to
the extent it arises out of or is based upon a Breach of Sellers' warranty of
title with respect to the Shares or the provisions of Sections 3.1or 3.3(b), (c)
or (d) of this Agreement as to which claims Sellers' liability is limited to
110% of the amount of the Purchase Price, and (ii) Buyer's obligation to
indemnify and hold harmless Sellers and any other Indemnified Persons under
Section 10.3 or otherwise pay Damages under this Agreement is limited to the
aggregate amount of $1,500,000, which is Buyer's maximum liability under Section
10.3 or otherwise under this Agreement.
After the Closing, the remedies provided in this Section 10.2 will be the sole
and exclusive remedies of Buyer for any Breach by Sellers of any provision of
this Agreement and Buyer hereby waives and releases any other right or remedy
with respect to any such Breach.
10.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER
Subject to the limitations of Section 10.2, Buyer will indemnify and hold
harmless Sellers and their respective Representatives (collectively, the
"Indemnified Persons") for, and will pay to the Indemnified Persons the amount
of any Damages arising, directly or indirectly, from or in connection with (a)
any material Breach of any representation or warranty made by
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Buyer in this Agreement or in any certificate delivered by Buyer pursuant to
this Agreement, (b) any material Breach by Buyer of any covenant or obligation
of Buyer in this Agreement, or (c) any claim by any Person for brokerage or
finder's fees or commissions or similar payments based upon any agreement or
understanding alleged to have been made by such Person with Buyer (or any Person
acting on its behalf) in connection with any of the Contemplated Transactions.
After the Closing, the remedies provided in this Section 10.2 will be the sole
and exclusive remedies of Sellers for any Breach by Buyer of any provision of
this Agreement and Sellers hereby waive and release any other right or remedy
with respect to any such Breach.
10.4 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS
(a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3,
of notice of the commencement of any Proceeding against it, such indemnified
party will, if a claim is to be made against an indemnifying party under such
Section, give notice to the indemnifying party of the commencement of such
claim, but the failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified party,
except to the extent that the indemnifying party demonstrates that the defense
of such action is prejudiced by the indemnifying party's failure to give such
notice.
(b) If any Proceeding referred to in Section 10.4(a) is brought against an
indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will, be entitled to
participate in such Proceeding and, to the extent that it wishes (unless (i) the
indemnifying party is also a party to such Proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate, or
(ii) the indemnifying party fails to provide reasonable assurance to the
indemnified party of its financial capacity to defend such Proceeding and
provide indemnification with respect to such Proceeding), to assume the defense
of such Proceeding with counsel satisfactory to the indemnified party and, after
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such Proceeding, the indemnifying party will not, as long
as it diligently conducts such defense, be liable to the indemnified party under
this Section 10 for any fees of other counsel or any other expenses with respect
to the defense of such Proceeding, in each case subsequently incurred by the
indemnified party in connection with the defense of such Proceeding, other than
reasonable costs of investigation. If the indemnifying party assumes the defense
of a Proceeding, (i) no compromise or settlement of such claims may be effected
by the indemnifying party without the indemnified party's consent unless (A)
there is no finding or admission of any violation of Legal Requirements or any
violation of the rights of any Person and no effect on any other claims that may
be made against the indemnified party, and (B) the sole relief provided is
monetary damages that are paid in full by the indemnifying party; and (ii) the
indemnified party will have no liability with respect to any compromise or
settlement of such claims effected without its consent.
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(c) Notwithstanding the foregoing, if an indemnified party determines in good
faith that there is a reasonable probability that a Proceeding may adversely
affect it or its affiliates other than as a result of monetary damages for which
it would be entitled to indemnification under this Agreement, the indemnified
party may, by notice to the indemnifying party, assume the exclusive right to
defend, compromise, or settle such Proceeding, but the indemnifying party will
not be bound by any determination of a Proceeding so defended or any compromise
or settlement effected without its consent (which may not be unreasonably
withheld) or be required to indemnify the indemnified party with respect to such
Proceeding.
10.5 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS
A claim for indemnification for any matter not involving a third-party claim may
be asserted by notice to the party from whom indemnification is sought.
11. GENERAL PROVISIONS
11.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to this
Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents, representatives,
counsel, and accountants. Sellers will not permit the Company or its
Subsidiaries to pay for any of Sellers' out-of-pocket expenses in connection
with this Agreement. In the event of termination of this Agreement, the
obligation of each party to pay its own expenses will be subject to any rights
of such party arising from a Breach of this Agreement by another party.
11.2 PUBLIC ANNOUNCEMENTS
Except as required by Legal Requirements, any public announcement or similar
publicity with respect to this Agreement or the Contemplated Transactions will
be issued, if at all, at such time and in such manner as Buyer and Sellers
mutually determine. Unless consented to by Buyer and Sellers in advance or
required by Legal Requirements, prior to the Closing Buyer and Sellers shall
keep this Agreement and its terms strictly confidential and may not make any
disclosure of this Agreement or its terms to any Person. Sellers and Buyer will
consult with each other concerning the means by which the Company's employees,
directors, officers and others having dealings with the Company will be informed
of the Contemplated Transactions.
11.3 CONFIDENTIALITY
Between the date of this Agreement and the Closing Date, Buyer and Seller shall
remain subject to Confidentiality Agreement between Sellers and Buyer dated June
18, 2001.
11.4 NOTICES
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All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by telecopier (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
Sellers:
▇▇▇▇▇ Family Fund, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Stone, Pigman, Walther, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: ▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: King, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11.5 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request as necessary for the purpose of carrying out the intent of this
Agreement and the Contemplated Transactions.
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11.6 WAIVER
Neither the failure nor any delay by any party in exercising any right, power,
or privilege under this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement or the documents
referred to in this Agreement can be discharged by one party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing signed
by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
11.7 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties with respect
to its subject matter (including the Letter of Intent between Buyer and Sellers
dated August 16 and 17, 2001), and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
11.8 DISCLOSURE LETTER
(a) The disclosures in the Disclosure Letter, and those in any Supplement
thereto, must relate only to the representations and warranties in the Section
of the Agreement to which they expressly relate and not to any other
representation or warranty in this Agreement.
(b) In the event of any inconsistency between the statements in the body of
this Agreement and those in the Disclosure Letter (other than an exception
expressly set forth as such in the Disclosure Letter with respect to a
specifically identified representation or warranty), the statements in the body
of this Agreement will control.
11.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
Neither party may assign any of its rights under this Agreement without the
prior consent of the other parties except that Buyer may assign any of its
rights under this Agreement to any Subsidiary of Buyer, provided that any such
assignment shall not release Buyer from any of its obligations under this
Agreement. Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement, the Indemnified Persons, and ▇▇▇▇▇' children any legal or equitable
right, remedy, or claim under or with respect to this
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Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement, the Indemnified Persons, ▇▇▇▇▇' children, and their
successors and assigns.
11.10 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
11.11 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
11.12 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.
11.13 POST-CLOSING COVENANT
After the Closing, Buyer shall use his Best Efforts as a shareholder of the
Company to cause the Company to discharge in full the following obligations of
the Company to the extent such obligations are valid and binding: (i) vested
rights of ▇▇▇▇▇ under the Company's Officer Deferred Compensation Plan and under
the Company's Supplemental Executive Retirement Plan, (ii) vested rights of
▇▇▇▇▇ and her children under the Company's 401(k) Retirement Plan, (iii) vested
rights of ▇▇▇▇▇ with respect to accrued vacation time in the approximate amount
of $87,000, (iv) any indemnification or insurance payments due or that may
become due to any ▇▇▇▇▇ or any of her children as an officer, director,
employee, or agent of the Company to the extent provided for under applicable
law or under the Company's or any Subsidiary's bylaws, articles of
incorporation, or D&O insurance policies, as currently in effect and as amended
from time to time, and (v) ▇▇▇▇▇' and her children's statutory COBRA
continuation insurance benefits under the Company's medical plans provided they
shall be liable for 100% of the applicable premium, without any employer
contribution. ▇▇▇▇▇' children shall be third-party beneficiaries of this
Section. This Section 11.13 shall not constitute a guaranty by Buyer of any such
obligation owed by the Company to ▇▇▇▇▇ or her children.
11.14 GOVERNING LAW
This Agreement will be governed by the laws of the State of Louisiana without
regard to conflicts of laws principles.
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11.15 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
11.16 IMMEDIATE CLOSING
The parties are simultaneously entering into and closing under this Agreement
and the date of the Agreement is the Closing Date. Each party agrees that the
covenants to be performed as provided in Articles 5 and 6 and the conditions to
such party's obligation to close specified in Articles 7 and 8 of this
Agreement, have been performed or are hereby waived, and such covenants and
conditions have no further force or effect from and after the Closing.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
BUYER: SELLERS:
/s/ ▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------------
▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ FAMILY FUND, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
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