Exhibit 4.2
Share Purchase Agreement
Dated as of July 31, 1995
Regarding Shares
of
Series A Cumulative Convertible Preferred Stock,
par value $0.00001 per Share,
of
SA Holdings, Inc.
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
TABLE OF CONTENTS
SECTION 1. SALE AND PURCHASE OF PREFERRED STOCK . . . . . . . 2
SECTION 2. THE CLOSING. . . . . . . . . . . . . . . . . . . . 3
SECTION 3. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . 7
4.1. Corporate Existence and Power. . . . . . . . . . . . 7
4.2. Authorization of Borrowing; No Conflict as to Law
or Agreements. . . . . . . . . . . . . . . . . . . . 7
4.3. Legal Agreements . . . . . . . . . . . . . . . . . . 8
4.4. Stock. . . . . . . . . . . . . . . . . . . . . . . . 8
4.5. Offering of Shares . . . . . . . . . . . . . . . . . 8
4.6. SEC Reports. . . . . . . . . . . . . . . . . . . . . 9
SECTION 5. REPRESENTATIONS AND COVENANTS OF THE PURCHASER. . . 9
5.1. Representations. . . . . . . . . . . . . . . . . . . 9
5.2. Covenants. . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . 10
SECTION 7. COVENANTS OF THE COMPANY . . . . . . . . . . . . . 11
7.1. Office for Payment, Exchange and Registration;
Location of Office. . . . . . . . . . . . . . . . . 11
7.2. Reservation of Shares . . . . . . . . . . . . . . . 11
7.3. Listing of Shares . . . . . . . . . . . . . . . . . 11
7.4. Securities Exchange Act Registration. . . . . . . . 11
7.5. Private Placement Status. . . . . . . . . . . . . . 12
7.6. Delivery of Information . . . . . . . . . . . . . . 12
7.7. Financial Reports . . . . . . . . . . . . . . . . . 12
SECTION 8. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . 13
SECTION 9. CONDITIONS TO PURCHASER'S OBLIGATIONS. . . . . . . 18
9.1. Certificate of Designations . . . . . . . . . . . . 18
9.2. Accuracy of Representations and Warranties. . . . . 18
9.3. Proceedings . . . . . . . . . . . . . . . . . . . . 18
9.4. Senior Credit Agreement . . . . . . . . . . . . . . 18
SECTION 10. BROKERS . . . . . . . . . . . . . . . . . . . . . 19
SECTION 11. BREACH OF REPRESENTATIONS, WARRANTIES AND
COVENANTS . . . . . . . . . . . . . . . . . . . . 19
SECTION 12. SPECIFIC PERFORMANCE. . . . . . . . . . . . . . . 19
SECTION 13. HOME OFFICE PAYMENTS. . . . . . . . . . . . . . . 20
SECTION 14. AMENDMENTS AND WAIVERS. . . . . . . . . . . . . . 20
SECTION 15. EXCHANGE OF SHARES; CANCELLATION OF SURRENDERED
SHARES; REPLACEMENT . . . . . . . . . . . . . . . 21
SECTION 16. NOTICES . . . . . . . . . . . . . . . . . . . . . 21
SECTION 17. MISCELLANEOUS . . . . . . . . . . . . . . . . . . 21
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT dated as of July 31, 1995 by and
between SA Holdings, Inc., a Delaware corporation (the "Company"),
and the Purchaser listed on the signature page of this Agreement
(the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to the Purchaser and
the Purchaser desires to purchase from the Company shares of Series
A Cumulative Convertible Preferred Stock, $.00001 par value per
share, of the Company, all upon the terms and provisions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. SALE AND PURCHASE OF PREFERRED STOCK
(a) The Company agrees to sell to the Purchaser and,
subject to the terms and conditions hereof and in reliance upon the
representations and warranties of the Company contained herein or
made pursuant hereto, the Purchaser agrees to purchase from the
Company on the Closing Date specified in Section 2 hereof, the
number of shares of the Company's Series A Cumulative Convertible
Preferred Stock, $.00001 par value per share, set forth opposite
the Purchaser's name on Schedule 1 hereto. The shares of such
Series A Convertible Preferred Stock being acquired under this
Agreement and by the other Purchasers under the other Share
Purchase Agreements (as hereinafter defined) are collectively
herein referred to as the "Shares", containing rights and
privileges as more fully set forth in the Certificate of
Designations of the Board of Directors of the Company in the form
attached hereto as Exhibit A (the "Certificate of Designations").
(b) The purchase price to be paid to the Company by the
Purchaser for the Shares to be purchased by the Purchaser pursuant
to this Agreement shall be the amount set forth opposite the
Purchaser's name on Schedule 1 hereto. No further payment shall be
required from the Purchaser for the Shares.
(c) The Shares are being sold to the purchasers listed
on Schedule 1 hereto (the "Purchasers") pursuant to this Agreement
and other substantially identical agreements dated as of the date
hereof (all such agreements collectively, as from time to time
assigned, supplemented or amended or as the terms thereof may be
waived, the "Share Purchase Agreements"). All Share Purchase
Agreements shall be dated the date hereof and shall be
identical except as to the identities of the respective Purchasers.
The sale of Shares to each Purchaser under each Share Purchase
Agreement is to be a separate sale, and no Purchaser shall have any
liability under any Share Purchase Agreement other than the Share
Purchase Agreement to which it is a party.
SECTION 2. THE CLOSING
(a) Subject to the terms and conditions hereof, the
closing of the purchase and sale of the Shares to be purchased by
the Purchaser (the "Closing") will take place at the offices of
▇▇▇▇▇ & ▇▇▇▇▇▇, Dallas, Texas, on July 31, 1995 or such other time
and date as shall be mutually agreed to by the Company and the
Selling Shareholders (defined below) for the closing of the
acquisition of the stock of U.S. Communications, Inc.; provided
that the Closing shall occur no later than August 3, 1995. Such
time and date are herein referred to as the "Closing Date".
(b) Subject to the terms and conditions hereof, on the
Closing Date (i) the Company will deliver to the Purchaser a
certificate registered in the Purchaser's name (or its nominee, if
any, as specified on Schedule 1 hereto) evidencing the number of
Shares set forth opposite the Purchaser's name on Schedule 1 and
(ii) upon the Purchaser's receipt thereof, the Purchaser will
deliver to the Company a certified or official bank check (or wire
transfer) in an amount equal to the purchase price (as specified in
Section l(b) hereof) for the Shares to be purchased by the
Purchaser payable to the order of the Company in federal or other
immediately available funds.
SECTION 3. DEFINITIONS
For purposes of this Agreement, the following definitions
shall apply (such definitions to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquisition Agreement" means the Stock Purchase
Agreement dated as of June 30, 1995, as amended, between the
Company, U.S. Communications, Inc. and the Selling Shareholders.
"Affiliate" means (a) any director, officer or employee
of the Company, (b) any Person who, individually or with his or her
immediate family or any other Affiliate, directly or indirectly,
beneficially owns or holds 5% or more of the voting interest in the
Company, or (c) any corporation, partnership or other Person in
which any Person described above owns a 5% or greater equity
interest. Without limiting the generality of the foregoing, ▇▇▇▇
▇. ▇▇▇▇, ▇▇. shall at all times be deemed to be an Affiliate of the
Company.
"Agreement" means this Share Purchase Agreement (together
with exhibits and schedules) as from time to time assigned,
supplemented or amended or as the terms hereof may be waived.
"Board" or "Board of Directors" means with respect to any
Person which is a corporation, a business trust or other entity,
the board of directors or other group, however, designated, which
is charged with legal responsibility for the management of such
Person, or any committee of such board of directors or group,
however designated, which is authorized to exercise the power of
such board or group in respect of the matter in question.
"Business Day" means any day other than a Saturday,
Sunday or a day on which banking institutions in the State of Texas
are authorized or obligated by law or executive order to close.
"Certificate of Designations" has the meaning set forth
in Section l(a) hereof.
"Closing" has the meaning set forth in Section 2(a)
hereof.
"Closing Date" has the meaning set forth in Section 2(a)
hereof.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations and interpretations
thereunder.
"Commission" means the Securities and Exchange Commission
and any other similar or successor agency of the federal government
administering the Securities Act or the Securities Exchange Act.
"Common Stock" of the Company or of a Subsidiary (as the
case may be) shall mean the Company's or a Subsidiary's (as the
case may be) present authorized Common Stock and any stock into
which such Common Stock may hereafter be changed or for which such
Common Stock may be exchanged after giving effect to the terms of
such change or exchange (by way of reorganization,
recapitalization, merger, consolidation or otherwise) and shall
also include any common stock of the Company or of a Subsidiary (as
the case may be) hereafter authorized and any capital stock of the
Company or of a Subsidiary (as the case may be) of any other class
hereafter authorized which is not preferred as to dividends or
assets over any other class of capital stock of the Company or of
a Subsidiary (as the case may be) or which has ordinary voting
power for the election of directors of the Company or of a
Subsidiary (as the case may be).
"Company" means SA Holdings, Inc., a Delaware
corporation, its successors and assigns.
"Conversion Share" or "Conversion Shares" means the
shares of the Company's Common Stock, $.0001 par value per share,
obtained or obtainable upon conversion of
Shares and shall also include any capital stock or other securities
into which Conversion Shares are changed and any capital stock or
other securities resulting from or comprising a reclassification,
combination or subdivision of, or a stock dividend on, any
Conversion Shares. In the event that any Conversion Shares are
sold either in a public offering pursuant to a registration
statement under Section 6 of the Securities Act or pursuant to a
Rule 144 Transaction, then the transferees of such Conversion
Shares shall not be entitled to any benefits under this Agreement
with respect to such Conversion Shares and such Conversion Shares
shall no longer be considered to be "Conversion Shares" for
purposes of Section 8 hereof, for purposes of the definition of
Majority Shareholders or for purposes of any consent or waiver
provision of this Agreement.
"Convertible Preferred Stock" means the Company's Series
A Cumulative Convertible Preferred Stock, $.00001 par value per
share, which will be duly authorized on the Closing Date and which
will have the rights, powers and privileges on the Closing Date as
more fully set forth in the Certificate of Designations.
The phrase "current conversion price" has the meaning
specified in Section 7(h) of the Certificate of Designations.
"Majority Shareholders" means the holder or holders, at
the time, of at least fifty-one percent (51%) of the Conversion
Shares, including the Conversion Shares then outstanding and the
Conversion Shares then obtainable under outstanding Shares.
"Outstanding" or "outstanding" means
(a) when used with reference to the Shares or the
Conversion Shares as of a particular time, all Shares or
Conversion Shares theretofore duly issued except:
(i) Shares and Conversion Shares theretofore reported as
lost, stolen, mutilated or destroyed or surrendered for
transfer, exchange or replacement, in respect of which
new or replacement Shares or Conversion Shares have been
issued by the Company,
(ii) Shares and Conversion Shares theretofore cancelled
by the Company,
(iii) Shares and Conversion Shares registered in the name
of, as well as Shares and Conversion Shares owned
beneficially by, the Company, any Subsidiary or any of
their Affiliates and
(b) when used with reference to the number of shares of
Common Stock of the Company as at a particular time, the
then issued and outstanding shares of Common Stock of the
Company (not including treasury shares or any other
shares registered in the name of the Company, any
Subsidiary or any of their
Affiliates), together with shares of Common Stock of the
Company issuable pursuant to any then outstanding
warrants, options, convertible securities or other rights
to acquire Shares of Common Stock of the Company.
For purposes of the preceding sentence, in no event shall
"Affiliates" include (x) the persons which are identified as
"Purchasers" on Schedule 1 hereto or (y) any Affiliates of any such
persons.
"Person" or "person" means an individual, corporation,
partnership, firm, association, joint venture, trust,
unincorporated organization, government, governmental body, agency,
political subdivision or other entity.
"Preferred Stock" means any class of the capital stock of
a corporation (whether or not convertible into any other class of
such capital stock) which has any right, whether absolute or
contingent, to receive dividends or other distributions of the
assets of such corporation (including, without limitation, amounts
payable in the event of the voluntary or involuntary liquidation,
dissolution or winding-up of such corporation), which right is
superior to the rights of another class of the capital stock of
such corporation. "Preferred Stock" includes without limitation
the Convertible Preferred Stock.
"Purchaser" means the person who accepts and agrees to
the terms hereof as indicated by such person's signature (as "the
undersigned Purchaser") on the execution page of this Agreement,
together with successors and assigns.
"Purchasers" has the meaning set forth in Section l(c)
hereof, together with their respective successors and assigns.
"Rule 144" means (i) Rule 144 under the Securities Act as
such Rule is in effect from time to time and (ii) any successor
rule, regulation or law, as in effect from time to time.
"Rule 144A" means (i) Rule 144A under the Securities Act
as,such Rule is in effect from time to time and (ii) any successor
rule, regulation or law, as in effect from time to time.
"Rule 144 Transaction" means a transfer of Shares or
Conversion Shares (A) complying with Rule 144 as such Rule is in
effect on the date of such transfer (but not including a sale other
than pursuant to "brokers' transactions" as defined in clauses (1)
and (2) of paragraph (g) of such Rule as in effect on the date
hereof) and (B) occurring at a time when Shares (in the case of a
transfer of Shares) or Conversion Shares (in the case of a transfer
of Conversion Shares) are registered pursuant to Section 12 of the
Securities Exchange Act.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules, regulations and interpretations thereunder.
"Securities Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules, regulations and
interpretations thereunder.
"Selling Shareholders" means ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ and NTS Communications, Inc.
"Senior Credit Agreement" means the Term Credit Agreement
between the Company and Norwest Bank Minnesota, National
Association, dated as of the date hereof.
"Share Purchase Agreements" has the meaning set forth in
Section l(c) hereof.
"Shares" has the meaning set forth in Section l(a)
hereof. In the event that any Shares are sold either in a public
offering pursuant to a registration statement under Section 6 of
the Securities Act or pursuant to a Rule 144 Transaction, then the
transferees of such Shares shall not be entitled to any benefits
under this Agreement with respect to such Shares and such Shares
shall no longer be considered to be "Shares" for purposes of
Section 8 hereof or any consent or waiver provision of this
Agreement.
"Subsidiary", with respect to any Person, means any
corporation, association or other entity of which more than 80% of
the total voting power of shares of stock or other equity interests
(without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is, at the
time as of which any determination is being made, owned or
controlled, directly or indirectly, by such Person or one or more
of its Subsidiaries, or both. The term "Subsidiary" or
"Subsidiaries" when used herein without reference to any particular
Person, means a Subsidiary or Subsidiaries of the Company.
"Transaction Documents" has the meaning provided in
Section 4.1 hereof.
(b) For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise
requires:
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1. Corporate Existence and Power. The Company is a
business corporation duly incorporated, validly existing and in
good standing under the laws of Delaware, and is duly licensed or
qualified to transact business in Texas and Delaware. The Company
has all requisite power and authority, corporate or otherwise, to
conduct its business, to own its properties and to execute and
deliver, and to perform all of its obligations under, the Agreement
or any documents required thereunder (hereinafter, the "Transaction
Documents").
4.2. Authorization of Borrowing; No Conflict as to Law or
Agreements. The execution, delivery and performance by the Company
of the Transaction Documents
have been duly authorized by all necessary corporate action of the
Company and do not and will not (i) require any consent or approval
of the shareholders of the Company, or any authorization, consent
or approval by any governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (ii)
violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect having
applicability to the Company or of its Certificate of Incorporation
or Bylaws or (iii) result in a material breach of or constitute a
default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which the Company is a
party or by which it or its properties may be bound or affected.
4.3. Legal Agreements. The Transaction Documents
constitute the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to the rights of
creditors generally.
4.4. Stock.
The authorized capital stock of the Company consists of
(i) 50,000,000 shares of Common Stock, $.0001 par value per share,
and (ii) 12,500,000 shares of Convertible Preferred Stock, $.00001
par value per share, of which, after giving effect to the
Certificate of Designations, 166,667 shares have been designated as
Series A Convertible Preferred Stock and 125,000 shares have been
designated as Series B Convertible Preferred Stock. The shares of
the Company's Common Stock issuable upon conversion of the
Convertible Preferred Stock will, when issued, be duly authorized,
validly issued, fully paid and non-assessable.
The Certificate of Designations has been duly adopted by
the Company and is fully effective as an amendment to the Company's
certificate of incorporation. The Shares have all of the rights,
priorities and terms set forth in the Certificate of Designations.
4.5. Offering of Shares. Neither the Company, any
Subsidiary nor any agent nor other person acting on its behalf,
directly or indirectly, (i) offered any of the Shares or any
similar security of the Company (A) by any form of general
solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) or (B) for sale to or
solicited offers to buy any thereof from, or otherwise approached
or negotiated with respect thereto with, any person other than the
Purchasers or not more than 35 other institutional investors each
of which the Company reasonably believed was an "accredited
investor" within the meaning of Regulation D under the Securities
Act or (ii) has done or caused to be done (or has omitted to do or
to cause to be done) any act which act (or which omission) would
result in bringing the issuance or sale of the Shares within the
provisions of Section 5 of the Securities Act or the filing,
notification or reporting provisions of any state securities laws.
4.6. SEC Reports. The Company has filed all proxy
statements, reports and other documents required to be filed by it
under the Securities Exchange Act. The Company has furnished the
Purchasers copies of its Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 Forms 8-K filed in the calendar year
1995 through the date hereof and Quarterly Reports on Form 10-Q for
the fiscal quarter ended March 31, 1995 (collectively, the "SEC
Reports"). Each SEC Report was in substantial compliance with the
requirements of its respective form and none of the SEC Reports,
nor the financial statements (and the notes thereto) included in
the SEC Reports, as of their respective dates, contained any untrue
statement of a material fact or omitted 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.
SECTION 5. REPRESENTATIONS AND COVENANTS OF THE PURCHASER
5.1. Representations. The Purchaser hereby makes the
representations and warranties to the Company contained in this
Section 5.
(a) The Purchaser has all requisite power, authority and
legal right to execute, deliver, enter into, consummate and perform
this Agreement. The execution, delivery and performance of this
Agreement by the Purchaser have been duly authorized by all
required corporate or partnership actions. The Purchaser has duly
executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to the rights of
creditors generally.
(b) The Purchaser hereby represents to the Company that
it is capable of evaluating the risk of its investment in the
Shares being purchased by it and is able to bear the economic risk
of such investment, that (except as the Purchaser has otherwise
advised the Company and the Purchaser's special counsel in writing)
it in purchasing the Shares to be purchased by it for its own
account, and that the Shares are being purchased by it for
investment and not with a present view to any distribution thereof
in violation of applicable securities laws. It is understood that
the disposition of the Purchaser's property shall at all times be
within the Purchaser's control. If the Purchaser should in the
future decide to dispose of any of its Shares, it is understood
that it may do so only in compliance with the Securities Act,
applicable state securities laws and this Agreement. The Purchaser
represents that it is an "accredited investor" as defined in Rule
501(a) under the Securities Act.
(c) The Purchaser has received and reviewed copies of
the Company's Forms 10-K (year ending 1994), 10-Q (quarter ending
March 31, 1994), 8-Ks filed in calendar year 1995 prior to the date
hereof, and a copy of the Confidential Information Memorandum dated
March 1995 prepared by Jesup & ▇▇▇▇▇▇ Capital Markets, Inc.
(d) The Purchaser hereby represents that neither it nor
any group (as such term is defined in the Securities Exchange Act)
of persons of which it is a part has any plans or proposals which
relate to or would result in an extraordinary corporate transaction
(such as a merger, reorganization or liquidation) involving the
Company or the acquisition by any person of securities of the
Company enabling such person, such group and/or the Purchaser to
control or own 40% or more of the Common Stock of the Company (on
a fully-diluted basis).
5.2. Covenants.
The Purchaser hereby agrees that it shall not acquire,
alone, or together with a group (as defined in Section 13 of the
Securities Exchange Act), securities of the Company enabling the
Purchaser or such group to control or own 40% or more of the Common
Stock of the Company, unless such acquisition is approved by the
Board of Directors of the Company.
SECTION 6. RESTRICTIONS ON TRANSFER
(a) The Purchaser agrees that it will not sell or
otherwise dispose of any Shares or Conversion Shares unless
(i) such Shares or Conversion Shares have been
registered under the Securities Act and, to
the extent required, under any applicable
state securities laws, or
(ii) such Shares or Conversion Shares are sold
in accordance with the applicable requirements
and limitations of Rule 144 or Rule 144A, or
(iii) the Company has been furnished with an
opinion or opinions from counsel to the
Purchaser (which counsel and which opinion(s)
shall be reasonably satisfactory to the
Company and which counsel may be inside
counsel to the Purchaser) to the effect that
registration under the Securities Act is not
required for the transfer as proposed (which
opinion may be conditioned upon the transferee
assuming the obligations of a holder of Shares
or Conversion Shares under this Section) or
(iv) the Company has been furnished with a
letter from the Division of Corporate Finance
of the Commission to the effect that such
Division would not recommend any action to the
Commission if such proposed transfer were
effected without a registration statement
effective under the Securities Act.
The Company agrees that within five (5) Business Days after receipt
of any opinion referred to in (iii) above, it will notify the
holder supplying such opinion whether such opinion is satisfactory
to the Company's counsel. Any transfer of Conversion Shares shall
also be subject to the Stockholders' Agreement.
(b) The Company may endorse on all certificates
evidencing Shares or Conversion Shares a legend stating or
referring to the transfer restrictions contained in paragraph (a)
above; provided, that no such legend shall be endorsed on any
certificates which, when issued, are no longer subject to the
restrictions of this Section 6; provided, further, that if a
transfer is made pursuant to clause (i), (ii) (other than pursuant
to Rule 144A) or (iv) of paragraph (a) or if an opinion of counsel
provided pursuant to clause (iii) of paragraph (a) concludes that
the legend is no longer necessary, the Company will deliver upon
transfer, certificates without such legends.
SECTION 7. COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
7.1. Office for Payment, Exchange and Registration;
Location of Office.
So long as any of the Shares is outstanding, the Company
will maintain an office or agency where Shares may be presented for
payment, exchange, conversion or registration of transfer as
provided in this Agreement. Such office or agency initially shall
be the office of the Company set forth on the signature page
hereto.
7.2. Reservation of Shares. There have been reserved,
and the Company shall at all times keep reserved, free from
preemptive rights, out of its authorized Common Stock, $.0001 par
value per share, a number of shares of Common Stock, $.0001 par
value per share, sufficient to provide for the exercise of the
conversion rights provided in Sections 7 of the Certificate of
Designations.
7.3. Listing of Shares. If any shares of the Company's
Common Stock or Convertible Preferred Stock are listed on any
national securities exchange (or on the National Association of
Securities Dealers, Inc., Automated Quotation System or comparable
system), then the Company will take such action as may be
necessary, from time to time, to list Shares or Conversion Shares,
as the case may be, on such exchange (or system as the case may
be).
7.4. Securities Exchange Act Registration. As soon as
the Company is either required to or does file a registration
statement with respect to the Company's Common Stock or Convertible
Preferred Stock under Section 6 of the Securities Act or Section
12(b) or Section 12(g), whichever is applicable, of the Securities
Exchange Act, then, thereafter:
(a) The Company will maintain effective a registration
statement (containing such information and documents as the
Commission shall specify and otherwise complying with the
Securities Exchange Act) under Section 12(b) or Section 12(g),
whichever is applicable, of the Securities Exchange Act, with
respect to the Company's Common Stock or Convertible Preferred
Stock, as the case may be, and will file on time such information,
documents and reports as the Commission may require or prescribe
for companies whose stock has been registered pursuant to such
Section 12(b) or Section 12(g), whichever is applicable.
(b) The Company will, upon the request of any holder of
Shares or Conversion Shares, make whatever other filings with the
Commission, or otherwise make generally available to the public
such financial and other information, as any such holder may deem
reasonably necessary or desirable in order to enable such holder to
be permitted (i) to sell Conversion Shares pursuant to the
provisions of Rule 144 and (ii) if the Company has filed a
Registration Statement with respect to Convertible Preferred Stock
under Section 6 of the Securities Act or Section 12(b) or 12(g) of
the Securities Exchange Act, to sell Shares pursuant to the
provisions of Rule 144.
7.5. Private Placement Status. Neither the Company nor
any agent nor other Person acting on the Company's behalf will do
or cause to be done (or will omit to do or to cause to be done) any
act which act (or which omission) would result in bringing the
issuance or sale of the Shares or the Conversion Shares within the
provisions of Section 5 of the Securities Act or the filing,
notification or reporting requirements of any state securities law
(other than in accordance with a registration and qualification of
Conversion Shares pursuant to Section 8 hereof).
7.6. Delivery of Information. If a holder of Shares or
Conversion Shares proposes to transfer any such Shares or
Conversion Shares pursuant to Rule 144A, the Company agrees to
provide (upon the request of such holder or the prospective
transferee) to such holder and (if requested) to the prospective
transferee any information concerning the Company and its
Subsidiaries which is required to be delivered to any transferee of
such Shares or Conversion Shares pursuant to such Rule 144A.
7.7. Financial Reports. The Company will deliver to the
Purchaser:
(a) as soon as made available, copies of all Forms ▇▇-▇,
▇▇-▇, ▇-▇, financial statements, proxy statements, reports which
the Company has sent to its stockholders or filed with the
Commission or any national securities exchange; and
(b) copies of any notice sent to the Senior Lender
notifying the Senior Lender of the occurrence of a default or event
of default under the terms of the Senior Credit Agreement, together
with any supporting statements attached thereto and delivered to
the Senior Lender.
7.8. Election of Directors. So long as there are at
least 100,000 shares of Series A Preferred Stock outstanding or so
long as the Purchaser and its affiliates (together with the
directors, officers and employees of the Purchaser and its
affiliates) own beneficially a number of shares of capital stock of
the Corporation which (assuming any conversion rights are
exercised) would give the Purchaser, its affiliates and such
persons, collectively, five percent (5%) or more of the combined
voting power of all shares of capital stock then outstanding (for
this purpose, Common Stock issuable upon conversion of then
outstanding Series A Preferred Stock and Series B Preferred Stock
shall be deemed to be outstanding) entitled to vote generally at
any meeting of stockholders at which directors are to be elected
the Corporation will use its best efforts to cause to be elected to
its board of directors (and in addition to any other directors
elected by the holders of the Series A Preferred Stock), from the
date hereof until the next such meeting of stockholders, one
person, and thereafter, a total of two persons nominated by the
Purchaser or its designee, who shall serve at all times during such
respective periods. In the event a vacancy occurs in the office of
a director so nominated by the Purchaser (or its designee), the
Corporation shall use its best efforts to cause to be elected to
its board of directors a successor nominated by the Purchaser or
its designee who shall serve at all times during such period.
SECTION 8. REGISTRATION RIGHTS
8.1. Registration at the Request of Holders.
(a) The Company agrees that on or after July 31, 1996,
upon receipt by the Company of a Registration Demand satisfying the
conditions under Section 8.1(b) hereof, the Company will (A)
promptly (at least thirty (30) days prior to the filing date) give
written notice of the proposed registration to each holder of a
Share or Conversion Share, and (B) with reasonable promptness, and
in any case not later than ninety (90) days after receipt by the
Company of the Registration Demand, use reasonable efforts to file
as soon as practicable a registration statement with the Commission
relating to the Conversion Shares as to which registration is
requested in the Registration Demand. The Company shall use its
reasonable best efforts to make such registration statement become
effective and to qualify the same under the Blue Sky laws of such
states as may be requested; provided, however, that with respect to
compliance with Blue Sky laws, the Company shall not be obligated
to qualify as a foreign corporation or to execute or file any
general consent to service of process under the laws of any such
state where it is not so subject. The Company shall also include
under such registration statement (and in such state
qualifications) any Conversion Shares requested to be so included
by any other holder of Shares or Conversion Shares by written
notice delivered to the Company within thirty (30) days after the
sending of the notice provided for in (A) above.
(b) A "Registration Demand" means a written notice from
one or more holders of Shares or Conversion Shares stating that
such holder or holders desire to sell all of their Conversion
Shares under circumstances requiring registration under the
Securities
Act and requesting that the Company effect registration with
respect to all of the Conversion Shares held, or to be held after
conversion of Shares, by such holder or holders; provided, that
such holder or holders giving such notice hold Shares or Conversion
Shares representing, or entitling the holder thereof to obtain upon
conversion, in the aggregate not less than fifty-one percent (51%)
of the number of Conversion Shares then obtainable upon conversion
of all Shares then outstanding; provided that such holder or
holders hold at least 1,000,000 Conversion Shares in the aggregate
(as such number may be adjusted from time to time hereafter as a
result of a stock split, combination, etc.).
(c) The Company is obligated to effect registration and
qualification pursuant to this Section 8.1 no more than two times.
(d) If the holder or holders who gave the Registration
Demand under this Section 8.1 inform the Company by written notice
that they are withdrawing their Registration Demand and pay all of
the Company's out-of-pocket expenses with respect to such
registration and qualification incurred to the date of the notice
under this Section 8.1(d), then the registration statement need not
be filed and the whole effort will not count as a registration and
qualification (or a conversion of rights) under this Section 8.1.
(e) The Company may, upon written notice to the holder
or holders giving a Registration Demand, require such holder or
holders to withdraw such Registration Demand upon the good faith
determination by the Company that such postponement is necessary
(i) to avoid disclosure of non-public information or (ii) as a
result of a pending financial transaction, and in each case, the
holders may not make another Registration Demand for a period of up
to ninety (90) days, as specified by the Company in such notice;
provided that the Company may exercise this right not more than
once in any 12-month period. The Company may only given such a
notice where the giving of such a notice has been specifically
approved by the Company's Board of Directors. Upon receipt of any
such written notice from the Company, such Registration Demand
shall be deemed to be rescinded and retracted (subject to being
given again after any holdback period specified in such notice in
accordance with the second preceding sentence) and shall not be
counted as, or deemed or considered to be or to have been, a
Registration Demand for any purpose.
8.2. Piggyback Rights.
(a) If the Company at any time proposes to file a
registration statement under the Securities Act for any sales of at
least 300,000 shares (as such number may be adjusted from time to
time hereafter as a result of a stock split, combination, etc.) of
the Company's Common Stock (or any warrants, units, convertibles,
rights or other securities related or linked to any shares of the
Company's Common Stock) on behalf of the Company or otherwise, the
Company shall give written notice of such registration no later
than thirty (30) days before its filing with the Commission to all
holders of Shares or Conversion Shares; provided, that
registrations relating solely to securities to be issued by the
Company in connection with any employee stock option or employee
stock purchase or savings plan
on Form S-8 (or successor forms) under the Securities Act shall not
be subject to this Section 8.2. If holders of Shares or Conversion
Shares so request within thirty (30) days, the Company shall
include in any such registration the Conversion Shares held or to
be held after conversion of Shares by such holders and requested to
be included in such registration, subject to Section 8.2(b) hereof.
(b) The Company shall not be obligated to so include the
Conversion Shares to the extent any underwriter or underwriters of
such securities being otherwise registered by the Company
determines in good faith that the inclusion of such Conversion
Shares would jeopardize the successful sale of such other
securities proposed to be sold by such underwriter or underwriters,
in which case holders of Shares or Conversion Shares desiring to
participate in such registration shall be entitled to participate
in any such reduced number of Conversion Shares (if any) which may
be included in such registration (along with other holders of
Common Stock exercising piggyback rights with respect to such
registration) in proportion to the amount of shares of the
Company's Common Stock held by such holders (whether held directly
or through the right to obtain Conversion Shares upon conversion of
Shares held by such holders).
(c) The obligations and rights of the Company and the
holders under this Section 8.2 shall not affect in any way their
obligations and rights under Section 8.1 hereof.
(d) The Company may propose including Common Stock to be
publicly offered and sold by it in any registration statement to be
filed pursuant to a Registration Demand under Section 8.1. If, in
the written opinion of underwriters selected for the proposed
offering, the inclusion of the securities proposed to be offered
and sold by both the Company and the holders of Shares or
Conversion Shares would jeopardize the success of the offering, the
selling holders may elect (i) to exclude the amount of securities
(up to all of the securities) proposed to be sold by the Company
which, in the opinion of such underwriters, would jeopardize the
success of the offering by the selling holders, or (ii) to convert
their proposed offering to an offering pursuant to this Section
8.2. If the selling holders elect to convert the offering to one
under this Section 8.2, then such registration shall not be deemed
(or counted as) a registration and qualification (or a conversion
of rights) under Section 8.1 hereof.
8.3. Expenses.
Subject to the limitations contained in this Section 8.3
and except as otherwise specifically provided in this Section 8,
the entire costs and expenses of registration and qualification
pursuant to Section 8.1 hereof and of registration and
qualification pursuant to Section 8.2 hereof shall be borne by the
Company. Such costs and expenses shall include, without
limitation, underwriting fees or commissions in connection with the
registration and qualification pursuant to Section 8.1 hereof
(other than with respect to the Conversion Shares to be sold by the
holders of Shares or Conversion Shares, as to which underwriting
discounts and commissions shall be paid by the selling holders),
the fees and expenses of counsel for the Company and of its
accountants, all other costs, fees and expenses of the Company
incident to the preparation, printing, registration and filing
under the Securities Act of the registration statement and all
amendments and supplements thereto, up to $20,000 of reasonable
fees and expenses of one counsel to the holders of Shares or
Conversion Shares relating to such registration and qualification,
the cost of furnishing copies of each preliminary prospectus, each
final prospectus and each amendment or supplement thereto to
underwriters, dealers and other purchasers of the Conversion Shares
and the costs and expenses (including reasonable fees and
disbursements of counsel) incurred in connection with the
qualification of the Conversion Shares under the Blue Sky laws of
various jurisdictions; provided, however, that if any jurisdiction
in which the Company shall qualify or register in connection with
the proposed sale of the Conversion Shares shall require that
expenses incurred in connection with the qualification or
registration of such Conversion Shares in that jurisdiction be
borne in whole or in part by the holders selling those Conversion
Shares, then such expenses shall be payable by such holders pro
rata to the extent required by such jurisdiction and in the event
that any such holder is required by any such applicable
jurisdiction to bear such expense, the Company shall promptly
reimburse each such holder for the amount paid therefor.
8.4. Procedures.
(a) In the case of each registration or qualification
pursuant to Section 8.1 or 8.2, the Company will keep all holders
of Shares or Conversion Shares advised in writing as to the
initiation of proceedings for such registration and qualification
and as to the completion thereof, and will advise any such holder,
upon request, of the progress of such proceedings.
(b) At the Company's expense, the Company will keep each
registration and qualification under this Section 8 effective (and
in compliance with the Securities Act) by such action as may be
necessary or appropriate for a period of one hundred twenty (120)
days after the effective date of such registration statement,
including, without limitation, the filing of post-effective
amendments and supplements to any registration statement or
prospectus necessary to keep the registration statement current and
the further qualification under any applicable Blue Sky or other
state securities laws to permit such sale or distribution, all as
requested by such holder or holders.
(c) The Company will immediately notify each holder on
whose behalf Conversion Shares have been registered pursuant to
this Section 8, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such
registration-statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
(d) The Company will furnish to each holder on whose
behalf Conversion Shares have been registered pursuant to this
Section 8 a signed counterpart, addressed to such holder, of an
opinion of counsel for the Company, dated the effective date of
such registration statement.
(e) Without limiting any other provision hereof, in
connection with any registration of Conversion Shares under this
Section 8, the Company will use its reasonable best efforts to
comply with the Securities Act, the Securities Exchange Act and all
applicable rules and regulations of the Commission, and will make
generally available to its securities holders, as soon as
reasonably practicable, an earnings statement covering a period of
at least twelve (12) months, beginning with the first month of the
first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
(f) In connection with any registration of Conversion
Shares under this Section 8, the Company will provide a transfer
agent and registrar for the Conversion Shares not later than the
effective date of such registration statement.
(g) The Company shall not be required to include any of
the holders' Conversion Shares in an underwritten offering of the
Company's securities unless such holders accept the terms of the
underwriting as agreed upon between the Company and the
underwriters selected by it, which terms shall include customary
provisions with respect to indemnification and contribution and
customary representations and warranties by the Company (which
shall be made to and for the benefit of the underwriters and the
holders of Conversion Shares to be sold in such offering).
(h) In connection with the preparation and filing of
each registration statement registering Conversion Shares under
this Section 8, the Company will give the holders of Shares or
Conversion Shares on whose behalf such Conversion Shares are to be
so registered and their underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or supplement thereto, and will give each of them such
access to its books and records and such opportunities to discuss
the business of the Company with its officers, its counsel and the
independent public accountants who have certified its financial
statements, as shall be reasonably necessary, in the reasonable
opinion of such holders or such underwriters or their counsel, in
order to conduct a reasonable and diligent investigation within the
meaning of the Securities Act.
8.5. Indemnification.
The Company will indemnify and hold harmless each holder
of Shares or Conversion Shares and any underwriter (as defined in
the Securities Act) for such holder and each person, if any, who
controls the holder or underwriter within the meaning of the
Securities Act against any losses, claims, damages or liabilities,
joint or several, and expenses (including reasonable attorneys'
fees and expenses and reasonable costs of investigation) to which
the holder or underwriter or such controlling person may be
subject, under the Securities Act or otherwise, insofar as any
thereof arise out of or are based upon (a) any untrue statement or
alleged untrue statement of a material fact contained in (i) any
registration statement under which such Conversion Shares were
registered under the Securities Act pursuant to Section 8.1 or 8.2
hereof, any prospectus or preliminary prospectus contained therein,
or any amendment or supplement thereto, or (ii) any other document
incident to the registration of the Conversion Shares under the
Securities Act or the qualification of the Conversion Shares under
any state securities laws applicable to the Company, or (b) the
omission or alleged omission to state in any item referred to in
the preceding clause (a) a material fact required to be stated
therein or necessary to make the statements therein not misleading
or (c) any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act or any other federal or
state securities law, rule or regulation applicable to the Company
and relating to action or inaction by the Company in connection
with any such registration or qualification, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or
are based upon any untrue statement or alleged untrue statement or
omission or alleged omission based upon information furnished to
the Company in writing by such holder or by any underwriter for
such holder expressly for use therein (with respect to which
information such holder or underwriter shall so indemnify and hold
harmless the Company, any underwriter for the Company and each
person, if any, who controls the Company or such underwriter within
the meaning of the Securities Act).
8.6. Holdback.
Except for transfers made in transactions exempt from the
registration requirements under the Securities Act pursuant to
Section 4(2) thereof or pursuant to Rule 144A, the Company and each
holder of Shares or Conversion Shares agrees not to offer, sell,
contract to sell or otherwise dispose of any of their respective
shares of the Company's Common Stock within seven (7) days before
or one hundred eighty (180) days after the date of any final
prospectus relating to any underwritten public offering of the
Company's Common Stock on behalf of the Company or otherwise, in
each case except pursuant to such prospectus or with the written
consent of underwriters for such offering.
SECTION 9. CONDITIONS TO PURCHASER'S OBLIGATIONS
The Purchaser's obligation to purchase Shares hereunder
is subject to satisfaction of the following conditions at the
Closing (any of which may be waived by the Purchaser):
9.1. Certificate of Designations. The certificate of
incorporation of the Company shall have been duly amended by the
filing of the Certificate of Designations in the form attached
hereto as Exhibit A.
9.2. Accuracy of Representations and Warranties. The
representations and warranties of the Company in the Share Purchase
Agreements or in any certificate or document delivered pursuant
hereto or thereto shall be correct and complete on and as of the
Closing Date with the same effect as though made on and as of the
Closing Date (after giving effect to transactions contemplated by
this Agreement).
9.3. Proceedings. All corporate and other proceedings
in connection with the transactions contemplated by the Share
Purchase Agreements, and all documents incident thereto, shall be
in form and substance satisfactory to the Purchaser and its
counsel, and the Purchaser shall have received all such originals
or certified or other copies of such documents as the Purchaser or
its counsel may reasonably request.
9.4. Senior Credit Agreement. The Company and Norwest
Bank, National Association, shall have executed and delivered the
Senior Credit Agreement, which shall be in full force and effect
and the Company shall have made a borrowing thereunder sufficient,
together with proceeds from the sale of Series A Preferred Stock,
the Series B Preferred Stock, certain Subordinated Notes due
October 1, 1996 and certain Subordinated Notes due July 30, 1996,
to close under the terms of the Acquisition Agreement.
SECTION 10. BROKERS
Except for certain fees payable to Jesup & ▇▇▇▇▇▇ Capital
Markets, Inc. (all of which fees will be paid by the Company), the
Company represents and warrants to the Purchaser that there is no
liability for (and the Company will pay and indemnify the Purchaser
against) any fees or expenses (or claims therefor) of any
investment banker, finder or broker in connection with any Share
Purchase Agreement or any of the transactions contemplated hereby
or thereby. The Company will indemnify the Purchaser against all
such fees or expenses payable to the enumerated persons in the
preceding sentence and against any other such fees, expenses or
claims of any person, unless such person was engaged by the
Purchaser in connection with this Agreement or any of the
transactions contemplated hereby.
SECTION 11. BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) The representations, warranties, covenants and
agreements of the Company and the Purchaser contained in this
Agreement or in any document or certificate delivered pursuant
hereto or thereto or in connection herewith shall survive, and
shall continue in effect following, the execution and delivery of
the Share Purchase Agreements, the closings hereunder and
thereunder, any investigation at any time made by the Purchaser or
on its behalf or by any other Person, the issuance, sale and
delivery of the Shares, any disposition thereof and any payment,
conversion or cancellation of the Shares. All statements contained
in any certificate or other document delivered by or on behalf of
the
Company pursuant hereto shall constitute representations and
warranties by the Company hereunder.
(b) The Company agrees to indemnify and hold the
Purchaser harmless from and against and will pay to the Purchaser
the full amount of any loss, damage, liability or expense
(including amounts paid in settlement and attorneys' fees and
expenses) to the Purchaser resulting either directly or indirectly
from any breach of the representations, warranties, covenants or
agreements of the Company contained in any Share Purchase
Agreement.
SECTION 12. SPECIFIC PERFORMANCE
The parties agree that irreparable damage will result in
the event that this Agreement is not specifically enforced, and the
parties agree that any damages available at law for a breach of
this Agreement would not be an adequate remedy. Therefore, the
provisions hereof and the obligations of the parties hereunder
shall be enforceable in a court of equity, or other tribunal with
jurisdiction, by a decree of specific performance, and appropriate
injunctive relief may be applied for and granted in connection
therewith. Such remedies and all other remedies provided for in
this Agreement shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which a party may have
under this Agreement or otherwise.
SECTION 13. HOME OFFICE PAYMENTS
As long as the Purchaser or any institutional holder
which is a direct or indirect transferee (as a result of one or
more transfers) from the Purchaser shall be the holder of any
Share, the Company will make all redemption payments, liquidation
payments and other distributions by wire transfer to the
Purchaser's or such other holder's (or its nominees) account at any
bank or trust company in the United States of America,
notwithstanding any contrary provision herein or in the Company's
certificate of incorporation with respect to the place of payment.
The Purchaser has provided an address on Schedule 1 hereto for
payments by wire transfer and for delivery of pay-in-kind
securities, and such address may be changed for the Purchaser or
any subsequent holder by notice to the Company. All such payments
shall be made in U.S. dollars and in federal or other immediately
available funds.
SECTION 14. AMENDMENTS AND WAIVERS
(a) The terms and provisions of this Agreement may be
amended, waived, modified or terminated only with the written
consent of the Majority Shareholders; provided, however, that no
such amendment, waiver, modification or termination shall (i)
change the
registration rights under Section 8 hereof, without the consent of
the holder of the Conversion Share or Share so affected or (ii)
reduce the aforesaid percentage of Shares and Conversion Shares,
the holders of which are required to consent to any such amendment,
waiver, modification or termination, without the written consent of
the holders of all the Shares and Conversion Shares then
outstanding.
(b) The Company agrees that all holders of Shares and
Conversion Shares shall be notified by the Company in advance of
any proposed amendment, waiver, modification or termination, but
failure to give such notice shall not in any way affect the
validity of any such amendment, waiver, modification or
termination. In addition, promptly after obtaining the written
consent of the holders as herein provided, the Company shall
transmit a copy of any amendment, waiver, modification or
termination which has been adopted to all holders of Shares and
Conversion Shares then outstanding, but failure to transmit copies
shall not in any way affect the validity of any such amendment,
waiver, modification or termination.
SECTION 15. EXCHANGE OF SHARES; CANCELLATION OF SURRENDERED
SHARES; REPLACEMENT
(a) Any Share certificate which is converted into
Conversion Shares in whole or in part shall be cancelled by the
Company, and no new Share certificates shall be issued in lieu of
any Shares which have been converted into Conversion Shares. The
Company shall issue a new Share certificate with respect to any
Shares which were not converted into Converted Shares and were
represented by a certificate which was converted in part.
(b) Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of any Share
certificate and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably
satisfactory to the Company (if requested by the Company and
unsecured in the case of the Purchaser or an institutional holder),
or in the case of any such mutilation, upon surrender of such Share
certificate (which surrendered Share certificate shall be cancelled
by the Company), the Company will issue a new Share certificate, of
like tenor in lieu of such lost, stolen, destroyed or mutilated
Share certificate as if the lost, stolen, destroyed or mutilated
Share certificate were then surrendered for exchange.
SECTION 16. NOTICES
All notices, requests, demands, consents and other
communications hereunder shall be in writing and shall be delivered
by hand or shall be sent by telex or telecopy (confirmed by
registered, certified or overnight mail or courier, postage and
delivery charges prepaid), if to the Company at the address
indicated on the signature page hereof, or if to the Purchaser at
the address indicated on Schedule 1 hereto, or at such other
address as a
party may from time to time designate as its address in writing to
the other party to this Agreement. Whenever any notice is required
to be given hereunder, such notice shall be deemed given and such
requirement satisfied only when such notice is delivered or, if
sent by telex or telecopier, when received.
SECTION 17. MISCELLANEOUS
(a) The Share Purchase Agreements and, upon the closing
hereunder, the Certificate of Designations, together with any
further agreements entered into by the Purchaser and the Company at
the closing hereunder, contain the entire agreement between the
Purchaser and the Company, and supersede any prior oral or written
agreements, commitments, terms or understandings, regarding the
subject matter hereof.
(b) Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law, the parties hereby waive any provision of law which
may render any provision hereof prohibited or unenforceable in any
respect.
(c) Any provision of this Agreement relating to the
consent, determination, decision or waiver of a holder or holders
of Shares or Conversion Shares means such holder's consent,
determination, decision or waiver in such holder's sole discretion.
(d) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and its respective successors and
assigns, whether so expressed or not; provided, that the Company
may not assign any of its rights, duties or obligations under this
Agreement, except with the Purchaser's written consent.
(e) In addition to any assignment by operation of law,
the Purchaser may assign, in whole or in part, any or all of its
rights (and/or obligations) under this Agreement to any of its
affiliates or any officer, director or employee of either itself or
any of its affiliates of any or all of its Shares or Conversion
Shares, and (unless such assignment expressly provides otherwise)
any such assignment shall not diminish the rights the Purchaser
would otherwise have under this Agreement or with respect to any
remaining Shares or Conversion Shares held by the Purchaser.
(f) No course of dealing and no delay on the part of any
party hereto in exercising any right, power, or remedy conferred by
this Agreement shall operate as a waiver thereof or otherwise
prejudice such party's rights, powers and remedies. No single or
partial exercise of any rights, powers or remedies conferred by
this Agreement shall preclude any other or further exercise thereof
or the exercise of any other right, power or remedy.
(g) The headings and captions in this Agreement are for
convenience of reference only and shall not define, limit or
otherwise affect any of the terms or provisions hereof.
(h) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York (other than
any conflict of laws rule which might result in the application of
the laws of any other jurisdiction).
(i) This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument, and all signatures
need not appear on any one counterpart.
(j) CONSENT TO JURISDICTION. EACH PARTY CONSENTS TO THE
PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
THE STATE OF TEXAS IN CONNECTION WITH ANY CONTROVERSY RELATED TO
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, WAIVES ANY
ARGUMENT THAT VENUE IN ANY SUCH FORUM IS NOT CONVENIENT, AND AGREES
THAT ANY LITIGATION INITIATED BY ANY OF THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT SHALL BE VENUED IN
EITHER THE DISTRICT COURT OF DALLAS COUNTY, TEXAS, OR THE UNITED
STATES DISTRICT COURT, NORTHERN DISTRICT OF TEXAS.
(k) WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASER
HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
Address: SA HOLDINGS, INC.
Attn: General Counsel By_________________________________
Name:
Title:
Accepted and Agreed to as of the date
first above written by the undersigned
Purchaser:
JESUP & ▇▇▇▇▇▇ CAPITAL MARKETS, INC.
By_________________________________
Name:
Title:
Schedule 1 to the Share Purchase Agreement
Number of Shares
of Convertible Purchase
Name of Purchaser Preferred Stock Price
----------------- ---------------- --------
Name: Jesup & ▇▇▇▇▇▇ Capital
Markets, Inc. 166,667 $1,500,000
(a) address for communications:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
(b) address for payments by wire
transfer:
