STOCK PURCHASE AND RESTRUCTURING AGREEMENT
STOCK PURCHASE AND RESTRUCTURING AGREEMENT (this "Agreement"), entered
into as of this 23rd day of October, 1998, by and between IMPLEO, LLC, a
Delaware limited liability company (the "Buyer" or "Impleo"), and BCAM
INTERNATIONAL, INC., a New York Corporation, ("BCAM");
W I T N E S S E T H:
WHEREAS, BCAM is the record and beneficial owner of 1538.846 shares of
common stock, without par value, of Drew Shoe Corporation ("Drew"), an Ohio
corporation (the "Drew Common Stock") which represents 90% of the issued and
outstanding shares of Drew Common Stock;
WHEREAS, pursuant to a Note Purchase Agreement dated September 19, 1997
and amended by a First Amendment to said agreement dated April 14, 1998, BCAM
issued to the Buyer, the Buyer purchased a BCAM 10%/13% convertible subordinated
promissory note in the aggregate principal amount of $5,000,000, plus accrued
interest thereon (the "$5 Million Note") and 1,666,667 warrants to purchase an
aggregate of 1,666,667 Shares of common stock of BCAM, $.01 par value per share
("BCAM Common Stock");
WHEREAS, pursuant to a third party transaction, the Buyer will, at the
time of the Closing hereunder acquire, among other things, (a) certain warrants
to purchase 333,333 Shares of BCAM Common Stock (which warrants, together with
the warrants referred to in the previous recital, are hereinafter referred to as
the "Warrants") and (b) certain additional BCAM 10%/13% Convertible Subordinated
Promissory Notes which notes, in the aggregate equal the principal amount of
$1,000,000, plus accrued interest thereon (the "$1 Million Notes," which,
together with the $5 Million Note, is hereinafter collectively referred to as
the "Subject Notes");
WHEREAS, BCAM wishes to transfer to the Buyer 63% of the Drew Common Stock
owned by BCAM in exchange for the cancellation of $3,780,000 of the aggregate
principal amount of the debt evidenced by the Subject Notes, and certain other
good and valuable consideration as more particularly provided for herein; and
WHEREAS, the Buyer desires to purchase from BCAM and BCAM desires to sell
to the Buyer, all upon the terms and subject to the conditions set forth in this
Agreement, 63% of the Drew Common Stock owned by BCAM.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. ACQUISITION OF THE STOCK.
1.1 Stock Purchase. Subject to the terms and conditions of this
Agreement, on the Closing Date (as such term is hereinafter defined), the Buyer
shall purchase and acquire from
1
BCAM, and BCAM shall sell and transfer to the Buyer, 969.47298 shares of the
Drew Common Stock (such shares being hereinafter collectively referred to as the
"Subject Stock"), for the consideration provided for in Section 2 below. In
furtherance thereof, BCAM shall, on the Closing Date, against delivery of such
consideration in accordance with Section 2 below, deliver to the Buyer the
certificates representing the Subject Stock, duly endorsed for transfer or
accompanied by stock powers executed in blank for transfer.
2. CONSIDERATION/DELIVERIES AT CLOSING.
At the Closing:
2.1 Purchase Price. The Buyer shall effectuate its cancellation of
$3,780,000 of indebtedness evidenced by the Subject Notes by delivering the
Subject Notes to BCAM for cancellation, and BCAM shall evidence its remaining
$3,073,663.90 indebtedness to the Buyer under the Subject Notes ($2,220,000 of
existing principal indebtedness plus $853,663.90 of accrued interest) by
executing and delivering to the Buyer a promissory note in the form attached
hereto as Exhibit A (the "Replacement Note").
2.2 Warrants. Buyer shall effectuate its cancellation of 63% of the
Warrants (1,260,000 Warrants) by delivering to BCAM for cancellation the warrant
certificates representing the Warrants, against delivery by BCAM to Buyer of a
new warrant certificate (in substantially the form of the surrendered warrant
certificates) in the amount of 740,000 Warrants (the "Remaining Warrants").
2.3 Shareholder Agreement. BCAM and the Buyer shall enter into a
Shareholders' Agreement in the form attached hereto as Exhibit B (the
"Shareholders' Agreement").
2.4 Voting Rights. BCAM and the Buyer shall enter into a Second
Amendment to the Note Purchase Agreement dated as of September 19, 1997 and as
amended by the First Amendment to said agreement dated April 14, 1998
(hereinafter collectively referred to as the "Purchase Agreement"), which Second
Amendment shall provide for the partial deletion of Section 4.1 of the Purchase
Agreement, to the extent necessary, to effectuate the Buyer's surrender of its
rights to nominate and/or appoint one-quarter of BCAM's Board of Directors.
2.5 Employment Agreement. BCAM shall cause Drew Shoe to enter into
and deliver an employment agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual and the
present chairman and chief executive officer of BCAM, in a form acceptable to
Impleo (the "Drew Shoe Employment Agreement", the "Drew Shoe Employment
Agreement"). In connection with said employment agreement, BCAM agrees to amend
its current employment agreement with ▇▇▇▇▇▇▇, which agreement is dated January
1, 1997 (the "BCAM Employment Agreement"), to provide that ▇▇▇▇▇▇▇' employment
by Drew Shoe, as contemplated by the Drew Shoe Employment Agreement, shall be
permissible under, and shall not be deemed as a breach by ▇▇▇▇▇▇▇ of his
obligations contained in, the BCAM Employment Agreement..
2
2.6 Purchase and Sale Agreement. The parties shall enter into a
purchase and sale agreement in the form attached hereto as Exhibit C (the
"Purchase and Sale Agreement").
3. REPRESENTATIONS AND WARRANTIES OF BCAM.
In connection with the sale of the Subject Stock to the Buyer, BCAM
hereby represents and warrants to the Buyer as follows:
3.1 Title to the Stock. BCAM is the valid and lawful record and
beneficial owner of all of the Subject Stock, all of which has been duly
authorized and validly issued and is fully paid and non-assessable, and is free
and clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever other than (a) the outstanding pledge
thereof to the Buyer, and (b) restrictions which may be created by operation of
state or federal securities laws. On the Closing Date, the Buyer shall receive
from BCAM good, valid and marketable title to all of the Subject Stock, free and
clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever, other than the above-referenced pledge
and securities law restrictions.
3.2 Valid and Binding Agreement; No Breach. (a) BCAM has full legal
right, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. BCAM has taken all necessary
corporate action to authorize its execution and delivery of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement and the
consummation of the transactions contemplated hereby and thereby. This Agreement
and, when executed and delivered by BCAM, the Replacement Note, the Remaining
Warrants and the Shareholders' Agreement, constitutes and will constitute the
legal, valid and binding obligations of BCAM, enforceable against BCAM in
accordance with their respective terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally, and except that the remedy of
specific performance or similar equitable relief is available only at the
discretion of the court before which enforcement is sought.
(b) Neither the execution and delivery of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement by
BCAM, nor compliance with the terms and provisions of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement on the
part of BCAM, will: (i) violate any statute or regulation of any governmental
authority, domestic or foreign, applicable to BCAM; (ii) require the issuance of
any authorization, license, consent or approval of any federal or state
governmental agency, or any other person; or (iii) except for the pledge of the
Subject Stock in favor of the Buyer, conflict with or result in a breach of any
of the terms, conditions or provisions of any judgment, order, injunction,
decree, note, indenture, loan agreement or other agreement or instrument to
which BCAM is a party, or by which BCAM is bound, or constitute a default
thereunder.
3.3 Organization, Good Standing and Qualification. BCAM is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York,
3
with full corporate power and authority to own its assets and conduct its
business as owned and conducted on the date hereof.
3.4 Equity Ownership. The Drew Common Stock to be transferred to the
Buyer hereunder constitute not less than 56.7% of the total issued and
outstanding capital stock of Drew Shoe, on a fully diluted basis (after giving
effect to the exercise or conversion of any and all outstanding options,
warrants, convertible securities, subscription rights or other rights to acquire
any capital stock of Drew Shoe). For purposes of this representation and
warranty, ▇▇▇▇▇▇▇' Options contained in the Drew Shoe Employment Agreement shall
be disregarded.
3.5 Litigation. There is no suit, action, arbitration, or legal,
administrative or other proceeding, or governmental investigation pending or, to
the best knowledge of BCAM, threatened against BCAM which would in any manner
prohibit, restrain, impair or otherwise adversely affect the ability of BCAM to
convey free and clear title to the Subject Stock in accordance with this
Agreement.
3.6 Financial Statements. Attached hereto as Exhibit 3.6 is Drew
Shoe's Balance Sheet as of August 31, 1998 and the Statement of Operations for
the month and eight months then ended. Other than misstatements relating to the
overstatement of inventories by no more than $200,000 and the failure to record
a contingent liability for that certain law suit captioned ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ Shoe Corporation, (U.S. District Court- Massachusetts, Docket # GA98-10109
RCL), these Financial Statements have all been prepared in accordance with
Generally Accepted Accounting Principals, consistently applied, and presents
fairly the financial position of Drew Shoe at August 31, 1998 and its income for
the eight months then ended. As of August 31, 1998 Drew Shoe has neither
declared nor paid a dividend, or entered into any related party transactions
with an "Affiliate" (other than with BCAM in the ordinary course of business and
in accordance with past customs), as that term is defined in Federal Securities
Laws or entered into any transaction outside of its ordinary course of business.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In connection with the Buyer's purchase of the Subject Stock from
BCAM, the Buyer hereby represents and warrants to BCAM as follows:
4.1 Valid and Binding Agreement. This Agreement and, when executed
and delivered by the Buyer, the Shareholders' Agreement, constitutes and will
constitute the legal, valid and binding obligations of the Buyer, enforceable
against the Buyer in accordance with their respective terms, except to the
extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, and except
that the remedy of specific performance or similar equitable relief is available
only at the discretion of the court before which enforcement is sought. The
Buyer has taken all necessary company action to authorize its execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
4
4.2 Organization, Good Standing and Qualification. The Buyer is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full power and authority to own
its assets and conduct its business as owned and conducted on the date hereof.
4.3 No Breach of Statute or Contract. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; or (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder.
4.4 Investment. The Buyer is purchasing the Subject Stock for its
own account for investment, and not with a view to the resale or distribution
thereof in violation of any applicable securities laws.
4.5 Disclaimer. The Buyer acknowledges that BCAM has not made any
representations or warranties relating to the value of the Drew Common Stock
transferred herein or the Business prospects of Drew.
5. BCAM'S OBLIGATIONS BEFORE THE CLOSING DATE.
BCAM covenants and agrees that, between the date hereof and the
Closing Date:
5.1 Access to Information. BCAM, as the 90% shareholder of Drew
Shoe, shall cause, to the fullest extent permissible by law, Drew Shoe to permit
the Buyer and its counsel, accountants and other representatives, upon
reasonable advance notice to Drew Shoe, during normal business hours and without
undue disruption of the business of the Drew Shoe, to have reasonable access to
all assets, properties, books, accounts, records, contracts, documents and
information relating to Drew Shoe, and BCAM shall cooperate with the Buyer and
its representatives in all respects in connection with all due diligence which
the Buyer and its representatives may undertake in connection with the
transactions contemplated by this Agreement.
5.2 Conduct of Business in Normal Course. BCAM, as the 90%
shareholder of Drew Shoe shall have caused Drew Shoe to carry on their business
activities in substantially the same manner as heretofore conducted, and not to
make or institute any unusual or novel methods of service, sale, purchase,
lease, management, accounting or operation that will vary materially from those
methods used by such company as of the date hereof, without in each instance
obtaining the prior written consent of the Buyer.
5
5.3 Corporate Matters. BCAM, as the 90% shareholder of Drew Shoe, to
the fullest extent permissible by law, shall use its best efforts not to allow
Drew Shoe to:
(a) amend its Certificate of Incorporation or By-Laws;
(b) issue any shares of such company's capital stock;
(c) issue or create any warrants, obligations, subscriptions,
options, convertible securities or other commitments under which any additional
shares of such company's capital stock might be directly or indirectly issued;
(d) amend, cancel or modify any material contract or enter
into any material new agreement, commitment or transaction except, in each
instance, in the ordinary course of business;
(e) pay, grant or authorize any salary increases or bonuses
except in the ordinary course of business and consistent with past practice, or
enter into any employment, consulting or management agreements;
(f) modify in any material respect any material agreement to
which such company is a party or by which it may be bound, except in the
ordinary course of business;
(g) make any change in such company's management personnel;
(h) except pursuant to commitments in effect on the date
hereof, make any capital expenditure(s) or commitment(s), whether by means of
purchase, lease or otherwise, or any operating lease commitment(s), in excess of
$5,000 in the aggregate;
(i) sell, assign or dispose of any capital asset(s) with a net
book value in excess of $5,000 as to any one item or $10,000 in the aggregate;
(j) materially change its method of collection of accounts or
notes receivable, accelerate or slow its payment of accounts payable, or prepay
any of its obligations or liabilities, other than prepayments to take advantage
of trade discounts not otherwise inconsistent with or in excess of historical
prepayment practices;
(k) declare, pay, set aside or make any dividend(s) or other
distribution(s) of cash or other property, or redeem any outstanding shares of
either company's capital stock;
(l) incur any liability or indebtedness except, in each
instance, in the ordinary course of business;
(m) subject any of the assets or properties of either company
to any liens or encumbrances not in existence on the date hereof;
6
(n) forgive any liability or indebtedness owed to either
company by BCAM or any of its affiliates; or
(o) agree to do, or take any action in furtherance of, any of
the foregoing.
To the extent that any one or more of the events described in Section 5.3 (a)
through (o) shall occur and BCAM, its officers or directors are or become aware
of such occurrence, BCAM shall immediately notify the Buyer of such occurrence.
5.4 Absence of Litigation. No action, suit or proceeding by or
before any court or any governmental body or authority, against BCAM or
pertaining to the transactions contemplated by this Agreement or their
consummation, shall be pending or threatened on the Closing Date, which action,
suit or proceeding would, if determined adversely, prohibit, restrain or impair
the consummation of the transactions contemplated by this Agreement, or have a
material adverse effect on Drew Shoe, its business or any material portion of
its assets.
5.5 Consents and Releases. All necessary disclosures to and
agreements and consents of (a) any parties to any material contracts and/or any
licensing authorities which are material to Drew Shoe's business and (b) any
governmental authorities or agencies to the extent required in connection with
the transactions contemplated by this Agreement, shall have been obtained and
true and complete copies thereof delivered to the Buyer. Without limitation of
the foregoing, the Buyer shall have received the written consent of Bank One,
National Association, a creditor and secured party of Drew Shoe, with respect to
the transactions contemplated by this Agreement, and the transfer of the Subject
Stock to the Buyer hereunder.
5.6 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Buyer and its counsel.
6. CONDITIONS PRECEDENT TO THE BUYER'S PERFORMANCE.
The obligations of the Buyer to consummate the transactions
contemplated by this Agreement are further subject to the satisfaction, at or
before the Closing Date, of all of the following conditions, any one or more of
which may be waived in writing by the Buyer:
6.1 Accuracy of Representations and Warranties. All representations
and warranties made by BCAM in this Agreement and/or in any written statement
delivered to the Buyer under this Agreement shall be true and correct in all
respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
7
6.2 Performance. BCAM shall have performed, satisfied and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed, satisfied or complied with by BCAM on or before the Closing Date.
6.3 Certification. The Buyer shall have received a certificate,
dated the Closing Date, signed by the President of BCAM, certifying, in such
detail as the Buyer and its counsel may reasonably request, that the conditions
specified in Sections 6.1 and 6.2 above have been fulfilled.
6.4 Absence of Litigation. No action, suit or proceeding by or
before any court or any governmental body or authority, against BCAM or
pertaining to the transactions contemplated by this Agreement or their
consummation, shall be pending or threatened on the Closing Date, which action,
suit or proceeding would, if determined adversely, prohibit, restrain or impair
the consummation of the transactions contemplated by this Agreement, or have a
material adverse effect on either Drew Shoe, their business or any material
portion of their assets.
6.5 Consents and Releases. All necessary disclosures to and
agreements and consents of (a) any parties to any material contracts and/or any
licensing authorities which are material to Drew Shoe's business and (b) any
governmental authorities or agencies to the extent required in connection with
the transactions contemplated by this Agreement, shall have been obtained and
true and complete copies thereof delivered to the Buyer. Without limitation of
the foregoing, the Buyer shall have received the written consent of Bank One,
National Association, a creditor and secured party of Drew Shoe, with respect to
the transactions contemplated by this Agreement, and the transfer of Drew Common
Stock to the Buyer hereunder.
6.6 Condition of Property. Between the date of this Agreement and
the Closing Date, (a) assets of Drew Shoe having an aggregate fair market value
of $5,000 or more shall not have been lost, destroyed or irreparably damaged by
fire, flood, explosion, theft or any other cause, whether or not covered by
insurance, and (b) no other event, occurrence, condition or cause shall have
occurred, arisen or been discovered which has had or would reasonably be
expected to have a material adverse effect on the business, operations, assets
or condition (financial or otherwise) of Drew Shoe.
6.7 Third Party Transaction. Impleo shall simultaneously with the
closing of this Agreement, successfully consummate a third party transaction
with ▇. ▇▇▇▇ & Associates, Strafe & Co. f/b/o ▇▇▇▇▇ ▇. ▇▇▇▇, Strafe & Co. f/b/o
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Strafe & Co. f/b/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and others to acquire
their (a) interests in seven certain BCAM 10%/13% convertible subordinated
promissory notes, which notes in the aggregate total a principal amount of
$1,000,000 plus accrued interest; (b) interests in seven warrant instruments to
purchase an aggregate of 333,333 shares of BCAM Common Stock; (c) 28.4971 shares
of Drew Common Stock; and (d) 16.667 shares of $.01 par value common stock of
BCAM Technologies, Inc., a New York Corporation. In the event less than all of
the transactions contemplated by this third party transaction are not
consummated prior to the closing of this Agreement, for each $100,000 of
principal amount of notes and warrants not sold pursuant to this third party
transaction, BCAM shall have the right to withhold 1/60th of the shares of Drew
Common Stock transferred
8
hereunder; provided, however, that BCAM shall consummate the remaining terms of
this Agreement and, upon Buyer's tender of such "unsold notes," shall release to
Buyer the withheld shares of Drew Common Stock.
6.8 No Events. There shall not have occurred any one or more of the
events described in Section 5.3 above.
6.9 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Buyer and its counsel.
7. CONDITIONS PRECEDENT TO BCAM'S PERFORMANCE.
The obligations of BCAM to consummate the transactions contemplated
by this Agreement are further subject to the satisfaction, at or before the
Closing Date, of all of the following conditions, any one or more of which may
be waived in writing by BCAM:
7.1 Accuracy of Representations and Warranties. All representations
and warranties made by the Buyer in this Agreement and/or in any written
statement delivered by the Buyer under this Agreement shall be true and correct
in all respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
7.2 Performance. The Buyer shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer on or before
the Closing Date.
7.3 Certification. BCAM shall have received a certificate, dated as
of the Closing Date, signed by the Buyer, certifying, in such detail as BCAM and
its counsel may reasonably request, that the conditions specified in Sections
7.1 and 7.2 above have been fulfilled.
7.4 Proceedings and Instruments Satisfactory. All proceedings to be
taken in connection with the transactions contemplated by this Agreement, and
all documents incidental thereto, shall be reasonably satisfactory in form and
substance to BCAM and its counsel.
8. CLOSING.
8.1 Place and Date of Closing. Unless this Agreement shall be
terminated pursuant to Section 9 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of counsel for the Buyer, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or such other location as is agreed to between the Buyer and BCAM, at
10:00 A.M. local time on October 23, 1998 (the date of the Closing being
referred to in this Agreement as the "Closing Date"). Notwithstanding the
foregoing, if the Buyer shall not be prepared to effect the Closing on such
Closing Date, the
9
Buyer shall have the right to extend the Closing Date for up to an additional
one (1) month through November 23, 1998.
8.2 Actions at Closing. At the Closing or prior thereto, the Buyer
and BCAM shall make all deliveries stated in this Agreement, which deliveries
are required to be made at the Closing and/or on or prior to the Closing Date.
9. TERMINATION OF AGREEMENT.
9.1 General. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing: (a) by
the mutual written consent of BCAM and the Buyer; (b) by the Buyer, or by BCAM,
if: (i) a material breach shall exist with respect to the written
representations and warranties made by the other party, (ii) the other party
shall take any action prohibited by this Agreement, if such action shall or may
have a material adverse effect on Drew Shoe and/or the transactions contemplated
hereby, (iii) the other party shall not have furnished, upon reasonable notice
therefor, such certificates and documents required in connection with the
transactions contemplated hereby and matters incidental thereto as it shall have
agreed to furnish, and it is reasonably unlikely that the other party will be
able to furnish such item(s) prior to the outside Closing Date specified below,
or (iv) any consent of any third party to the transactions contemplated hereby
(whether or not the necessity of which is disclosed herein) is reasonably
necessary to prevent a default under any outstanding material obligation of
either party, or Drew Shoe, and such consent is not obtainable without material
cost or penalty (unless the party or parties not seeking to terminate this
Agreement agree to pay such cost or penalty); or (c) by either party, at any
time on or after October 23, 1998 (or November 23, 1998 in the event of an
extension pursuant to Section 8.1 above), if the transactions contemplated
hereby shall not have been consummated prior thereto, and such party shall not
then be in breach or default of any obligations imposed upon it by this
Agreement.
10. INDEMNIFICATION.
10.1 General.
(a) BCAM shall defend, indemnify and hold harmless the Buyer
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that the Buyer may incur,
sustain or suffer as a result of (i) any misrepresentation or breach of warranty
by BCAM under this Agreement, and/or (ii) any failure by BCAM to perform any of
the covenants or agreements of BCAM contained in this Agreement.
(b) The Buyer shall defend, indemnify and hold harmless BCAM
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that BCAM may incur, sustain
or suffer as a result of (i) any misrepresentation or breach of
10
warranty by the Buyer under this Agreement and/or (ii) any failure the Buyer to
perform, any of the covenants or agreements of the Buyer contained in this
Agreement.
11. POST-CLOSING EVENTS.
11.1 Further Assurances. From time to time from and after the
Closing Date, the parties will execute and deliver to each other any and all
further agreements, instruments, certificates and other documents as may
reasonably be requested by the other party in order more fully to consummate the
transactions contemplated hereby.
11.2 Additional Transaction. Provided such approval is necessary,
promptly after the Closing Date, and in any event no later than sixty (60) days
thereafter, BCAM will submit to its shareholders for their approval the
transactions contemplated by the Purchase and Sale Agreement. BCAM will use its
best efforts to obtain such shareholder approval (provided such approval is
necessary) as soon as reasonably possible, but if such approval is not obtained
or waived, and the transactions contemplated by the Purchase and Sale Agreement
are not consummated on or before January 15, 1999, said failure shall not affect
or impair the other transactions contemplated by this Agreement and neither
BCAM, nor Buyer shall have any further rights or obligations under this Section
11.2 or under the Purchase and Sale Agreement.
11.3 Continuing Security Interest. Pursuant to security and stock
pledge agreements dated April 14, 1998, BCAM's indebtedness to Impleo, as
evidenced by the Subject Notes (and, after the Closing, the Replacement Note)
are secured by security interests granted by BCAM to Impleo in BCAM's shares of
Drew Common Stock, its accounts, chattel paper, contracts, documents, equipment,
intangibles, and other assets. It is the intention of the parties to this
Agreement that said security interests continue in favor of Impleo as collateral
for the indebtedness under the Replacement Note and, accordingly, nothing
contained in this Agreement shall be construed as a waiver of, or Impleo's
consent or agreement to release, said security interests.
11.4 Assignment of Stock Purchase Agreement. To the fullest extent
permissible, BCAM hereby assigns to Buyer any and all rights it had or currently
has under that certain Stock Purchase Agreement dated March 20, 1997 and entered
into by and between BCAM, as Purchaser and ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as
Sellers. BCAM agrees to execute any further documents and shall seek and, to the
extent feasible, obtain, in good faith such consents as may be necessary to
effectuate the intent of this Section 11.4.
12. COSTS.
12.1 Finder's or Broker's Fees. Each of the Buyer and BCAM
represents and warrants that neither they nor any of their respective affiliates
have dealt with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and no broker or other person is entitled to any
commission or finder's fee in connection with any of these transactions.
11
12.2 Expenses. At the time of Closing or any termination of this
Agreement (as the case may be), or upon demand by the Buyer, BCAM shall pay all
costs and expenses incurred or to be incurred by BCAM and/or the Buyer in
negotiating and preparing this Agreement, all related agreements and
documentation, and in closing and carrying out the transactions contemplated by
this Agreement, regardless of whether such transactions ultimately close or are
consummated, which costs and expenses shall include, but not be limited to, all
reasonable legal fees and disbursements the parties may incur in connection
herewith.
13. FORM OF AGREEMENT.
13.1 Effect of Headings. The Section headings used in this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of the provisions hereof.
13.2 Entire Agreement; Waivers. This Agreement, along with the
Exhibits hereto, and the other agreements and instruments referred to herein,
constitute the entire agreement between the parties pertaining to the subject
matter hereof, and supersede all prior agreements or understandings as to such
subject matter. No party hereto has made any representation or warranty or given
any covenant to the other except as set forth in this Agreement and the Exhibits
hereto. No waiver of any of the provisions of this Agreement shall be deemed, or
shall constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
13.3 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
14. PARTIES.
14.1 Parties in Interest. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and permitted assigns, nor is anything in this Agreement
intended to relieve or discharge the obligations or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
14.2 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally or by
telecopier on the party to whom notice is to be given, on the day after the
delivery thereof to a recognized overnight courier service for next-day delivery
with all charges prepaid or billed to the account of the sender, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly addressed as
follows:
12
(a) If to BCAM:
BCAM International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
Ruskin, Moscou, ▇▇▇▇▇ et al.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) If to the Buyer:
IMPLEO, LLC
c/o Wexford Management, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party shall have specified by notice in
writing given to the other party.
15. MISCELLANEOUS.
15.1 Amendments and Modifications. No amendment or modification of
this Agreement or any Exhibit hereto shall be valid unless made in writing and
signed by or on behalf of the party to be charged therewith.
15.2 Non-Assignability; Binding Effect. Neither this Agreement, nor
any of the rights or obligations of the parties hereunder, shall be assignable
by any party hereto without the
13
prior written consent of all other parties hereto. Otherwise, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
15.3 Governing Law; Jurisdiction. This Agreement shall be construed
and interpreted and the rights granted herein governed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
wholly within such State.
15.4 Choice of Forum; Waiver of Trial by Jury. Any suit, action or
proceeding brought by either party against the other party for claims arising
out of this Agreement shall be brought and enforced exclusively in the United
States District Court for the Southern District of New York, or in the event
that court lacks jurisdiction to hear the claim, in the New York State Supreme
Court in New York County. In any such suit, action or proceeding, each party
waives, to the fullest extent it may effectively do so, its right to a trial by
jury.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of
the date first set forth above.
IMPLEO, LLC
By:
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇,
---------------------
BCAM INTERNATIONAL, INC.
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman &
Chief Executive Officer
14