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STOCK PURCHASE AGREEMENT
by and among
THREE CITIES OFFSHORE II C.V.,
THREE CITIES FUND II, L.P.
and
▇▇▇▇▇▇▇▇▇ & CO., L.P.,
▇▇▇▇▇▇▇▇▇ FOCUS FUND L.P.,
▇▇▇▇▇▇▇▇▇ INTERNATIONAL LIMITED,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Dated as of May 12, 1999
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TABLE OF CONTENTS
Page
1. Sale and Purchase of Shares............................................3
1.1 Sale and Purchase of Shares.....................................3
1.2 Purchase Price..................................................3
2. The Closing............................................................4
3. Representations and Warranties of Sellers..............................4
3.1 Title to the Shares.............................................4
3.2 Authority to Execute and Perform Agreement......................4
3.3 Governmental Approvals..........................................5
4. Representations and Warranties of the Buyers...........................5
4.1 Due Organization and Authority..................................5
4.2 Authority to Execute and Perform Agreements.....................6
4.3 Government Approvals............................................6
4.4 Private Placement...............................................7
4.5 Share Ownership.................................................7
5. Covenants and Agreements...............................................8
5.1 Proxy Statement.................................................8
5.2 Sellers' Representative.........................................8
5.3 Voting Agreement................................................8
5.4 Price Protection...............................................10
5.5 Notice of Negotiations.........................................11
6. Survival of Representations and Warranties of the Buyers
and the Sellers After Closing.........................................12
7. Miscellaneous.........................................................12
7.1 Certain Definitions............................................12
7.2 Publicity......................................................13
7.3 Notices........................................................14
7.4 Entire Agreement...............................................15
7.5 Waivers and Amendments.........................................15
7.6 GOVERNING LAW..................................................16
7.7 Binding Effect; No Assignment..................................16
7.8 Variations in Pronouns.........................................16
7.9 Counterparts...................................................16
7.10 Headings.......................................................16
7.11 Severability of Provisions.....................................16
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Exhibits
Exhibit A Share Ownership
Exhibit B Form of Merger Agreement
Exhibit C Form of Company Agreement
Exhibit D Book Entry Account
Exhibit E Wire Instructions
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of May 12, 1999 (the
"Agreement"), is made by and among THREE CITIES OFFSHORE II C.V., a Netherlands
Antilles limited partnership ("TCO"), and THREE CITIES FUND II, L.P. ("TCF II"
and, together with TCO, the "Buyers") and ▇▇▇▇▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇▇▇ Focus
Fund L.P., ▇▇▇▇▇▇▇▇▇ International Limited and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (each, a
"Seller," and collectively, the "Sellers"). Capitalized terms used herein but
not otherwise defined shall have the meanings given them in Section 7.1 of the
Agreement.
WHEREAS, the Sellers are the beneficial owners of an aggregate of
2,799,736 shares (the "Aggregate Shares") of common stock, par value $0.01 per
share ("Company Common Stock"), of The ▇▇▇▇▇▇ ▇▇▇ Company, Inc., a Delaware
corporation (the "Company"), and the holders of options for an aggregate of
10,000 shares of Company Common Stock of which options to purchase 3,333 shares
of Company Common Stock are currently exercisable;
WHEREAS, each Seller agrees to sell the shares set forth on
Exhibit A hereto and the Buyers agree to purchase such shares, aggregating to
2,158,000 Shares (the "Shares"), upon the terms and subject to the conditions of
this Agreement;
WHEREAS, concurrently with the execution of this Agreement, the
Buyers, TCR Acquisition Sub Co., a Delaware corporation owned by the Buyers
("Merger Sub"), and the Company are entering into an Agreement and Plan of
Merger (the "Merger Agreement") substantially in the form of Exhibit B, pursuant
to which,
2
subject to the terms and conditions contained therein, Merger Sub will merge
with and into the Company (the "Merger");
WHEREAS, concurrently with the execution of this Agreement, the
Company and the Buyers are entering into a registration rights agreement,
pursuant to which the Company is agreeing to provide to the Buyers certain
registration rights upon the terms and subject to the conditions set forth
therein;
WHEREAS, concurrently with or prior to the execution hereof, each
of the Company and the Buyers have received copies of the resignation letters of
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ resigning from their positions as
directors effective upon the Closing (as defined herein);
WHEREAS, concurrently with or prior to the execution hereof, the
Buyers have received a copy of the resolution by the Company's continuing
directors to appoint H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ to fill the vacancies
on the Board created by the resignations referred to in the preceding paragraph,
effective at the Closing;
WHEREAS, concurrently with or prior to the execution hereof, the
Buyers have received a copy of the resolution of the Company's Board authorizing
all appropriate and necessary actions such that the restrictions on business
combinations in Section 203 of the Delaware General Corporation Law will not
have any effect on the purchase of Shares contemplated herein, the Merger or the
other transactions contemplated by the Merger Agreement; and
3
WHEREAS, concurrently with or prior to the execution of this
Agreement, the Sellers and the Company are entering into an agreement
substantially in the form of Exhibit C.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Buyers and the Sellers
agree as follows:
1. Sale and Purchase of Shares.
1.1 Sale and Purchase of Shares. (i) The Sellers are
hereby selling, and the Buyers are hereby purchasing, all of the Shares, (ii)
the Sellers are either (A) delivering or causing to be delivered to the Buyers
certificates representing the Shares, accompanied by stock powers duly executed
in blank, in proper form for transfer, and with all appropriate stock transfer
tax stamps affixed or (B) causing to be made a book entry transfer with "free
delivery" of the Shares sold by such member to an account designated by the
Buyers maintained at the Depository Trust Company, as set forth on Exhibit D
(the "Book Entry Account") and (iii) upon delivery of the Shares as provided in
clause (ii) above, the Buyers shall deliver the Purchase Price (as hereinafter
defined) by wire transfer of immediately available funds to the accounts of the
Sellers set forth on Exhibit E.
1.2 Purchase Price. The purchase price for the Shares (the
"Purchase Price") is an amount equal to $6.95 per share.
4
2. The Closing. The closing (the "Closing") of the sale and
purchase of the Shares is taking place simultaneously with the execution and
delivery of this Agreement at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇.
3. Representations and Warranties of Sellers. Each Seller,
severally, but not jointly, represents and warrants to the Buyers as follows:
3.1 Title to the Shares. The Sellers are the beneficial
holders of all of the Shares, free and clear of any Liens and, upon delivery of
and payment for the Shares as herein provided, the Sellers will convey to the
Buyers ownership of the Shares by book-entry transfer or certificates
representing Shares, accompanied by stock powers duly executed in blank, in each
case, free and clear of any Liens.
3.2 Authority to Execute and Perform Agreement. Each
Seller has, as applicable, all personal, limited partnership or company right,
power and authority required to enter into, execute and deliver this Agreement
and to perform fully their obligations hereunder. This Agreement has been duly
executed and delivered by the Sellers and (assuming the due authorization,
execution and delivery hereof by the Buyers) is a legal, valid and binding
obligation of the Sellers enforceable in accordance with its terms and
conditions, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or other similar
laws affecting creditors' rights and to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity). Assuming
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the accuracy of and in reliance upon the representations and warranties of the
Buyers set forth in Section 4.4, the execution and delivery of this Agreement,
the sale of the Shares contemplated hereby, and the performance by the Sellers
of this Agreement in accordance with its terms and conditions will not: (i)
conflict with or result in any breach or violation of any of the terms and
conditions of, or constitute (or with notice or lapse of time or both
constitute) a default under, any statute, regulation, order, judgment or decree
applicable to the Sellers or to their Shares, or any instrument, contract or
other agreement to which the Sellers are party or by or to which the Sellers are
or their Shares are bound or subject; or (ii) result in the creation of any Lien
on the Shares, other than as contemplated by this Agreement.
3.3 Governmental Approvals. Except for filings required to
be made in compliance with applicable provisions of the Exchange Act and the
rules and regulations thereunder, and in reliance upon the representations and
warranties of the Buyers made pursuant to Section 4.4, no authorization or
approval or other action by, and no notice to or filing with, any Governmental
or Regulatory Body or court of law or any other Person is required to be made or
obtained by the Sellers for (i) the consummation of the transactions
contemplated by this Agreement or (ii) the due execution, delivery and
performance by the Sellers of this Agreement.
4. Representations and Warranties of the Buyers. Each Buyer,
severally but not jointly, represents and warrants to the Sellers as follows:
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4.1 Due Organization and Authority. Such Buyer is a
limited partnership duly organized, validly existing and in good standing in the
jurisdiction of its organization.
4.2 Authority to Execute and Perform Agreements. Each
Buyer has all necessary limited partnership right, power and authority and
approval required to enter into, execute and deliver this Agreement and to
perform fully its obligations hereunder. This Agreement has been duly executed
and delivered by the Buyers and (assuming the due authorization, execution and
delivery hereof by the Sellers) is a legal, valid and binding obligation of the
Buyers enforceable in accordance with its terms and conditions, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws affecting creditors' rights and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). The execution and delivery of this Agreement,
the sale of the Shares contemplated hereby, and the performance by the Buyers of
this Agreement in accordance with its terms and conditions will not conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with notice or lapse of time or both constitute) a default
under, any statute, regulation, order, judgment or decree applicable to the
Buyers, or any instrument, contract or other agreement to which the Buyers are a
party or by or to which the Buyers are bound or subject.
4.3 Government Approvals. Except for filings required to
be made in compliance with applicable provisions of the Exchange Act and the
rules
7
and regulations thereunder, no authorization or approval or other action by, and
no notice to or filing with, any Governmental or Regulatory Body or court of law
or any other Person, is required to be made or obtained by the Buyers for (i)
the consummation of the transactions contemplated by this Agreement (other than
the Merger as to which no representation is made) or (ii) the due execution,
delivery and performance by the Buyers of this Agreement.
4.4 Private Placement. The Buyers acknowledge that, other
than as expressly set forth herein, no Seller or any Affiliate of a Seller has
made any representation or warranty, either express or implied, as to the
accuracy or completeness of any of the information provided or made available to
the Buyers or their agents or representatives. The Buyers, to the extent
believed necessary, have discussed the agreements which the Buyers make by
signing this Agreement, and the applicable limitations upon the Buyers' transfer
or resale of the Shares, with its legal advisors. The Buyers understand that no
United States federal or state agency has made any finding or determination
regarding the fairness of the sale of the Shares for investment or any
recommendation or endorsement of the sale of the Shares. The Buyers are not
purchasing the Shares with a view to a distribution or resale of any of such
securities in violation of any applicable securities laws. The Company or its
agents has provided or made available to the Buyers documentary information
concerning the Company, including the Company's filings under the Exchange Act
and recent press releases of the Company. The Buyers have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in
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the Shares. The Buyers are financially able to bear the economic risk of this
investment, including the ability to afford holding the Shares for an indefinite
period or to afford a complete loss of such investment.
4.5 Share Ownership. The Buyers do not own any shares of
Company Common Stock.
5. Covenants and Agreements. The parties covenant and agree as
follows:
5.1 Proxy Statement. The Buyers agree, after the public
announcement of the execution and delivery of the Merger Agreement, to use all
reasonable efforts to cooperate with the Company to file the Proxy Statement (as
defined in the Merger Agreement), subject to the terms and conditions of the
Merger Agreement, as soon as reasonably practicable after the date hereof.
5.2 Sellers' Representative. For as long as the Sellers
Beneficially Own in the aggregate more than five percent of the outstanding
shares of Company Common Stock, the Buyers agree to vote their shares of Company
Common Stock in favor of one nominee to the Board designated by the Sellers;
provided that such nominee is reasonably satisfactory to the Buyers. The Buyers
acknowledge and agree that ▇▇▇▇ ▇▇▇▇▇▇▇ is reasonably satisfactory to them.
5.3 Voting Agreement. From the date hereof until the date
following the earliest to occur of (a) the disapproval of the Merger Agreement
by the Company's stockholders, (b) the termination of the Merger Agreement in
accordance
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with its terms or (c) the consummation of the Merger, the Sellers hereby agree
as follows:
(a) to appear, or cause the holder of record (the
"Record Holder") of any of the Aggregate Shares then Beneficially Owned by the
Sellers (the "Remaining Shares") on any applicable record date to appear, for
the purpose of obtaining a quorum at any annual or special meeting of
stockholders of the Company and at any adjournment thereof, at which matters
relating to the Merger, the Merger Agreement or any transaction contemplated
thereby are considered;
(b) at any meeting of the stockholders of the
Company, however called, and in any action by consent of the stockholders of the
Company, to vote, or cause to be voted by the Record Holder, the Remaining
Shares:
(A) in favor of the adoption of the Merger
Agreement; and (B) against any proposal for any extraordinary corporate
transaction, such as a recapitalization, dissolution, liquidation or sale of
assets of the Company, or any merger, consolidation or other business
combination (other than the Merger) between the Company and any Person or any
other action or agreement that is intended or which reasonably could be expected
to (x) result in a breach of any representation or warranty, covenant or any
other obligation or agreement of the Company under the Merger Agreement, (y)
result in any of the conditions to the Company's obligations under the Merger
Agreement not being fulfilled or (z) impede, interfere with, delay, postpone or
materially adversely affect the Merger and the transactions contemplated by the
Merger Agreement;
10
(c) not to sell, assign or otherwise transfer the
Remaining Shares, directly or indirectly, to any Person unless such Person has
previously agreed in writing, in a form reasonably satisfactory to the Buyers,
to be bound with respect to such Shares by the provisions of this Section 5.3;
and
(d) not to enter into any agreement inconsistent
with this Section 5.3.
5.4 Price Protection. If at any time after the date hereof
and before the consummation of the Merger (x) a third party enters into
negotiations or discussions with the Company or either or both of the Buyers
for, or makes an offer with respect to the acquisition of, the Company,
substantially all of the assets of the Company or at least a majority of the
outstanding voting shares of the Company (an "Alternative Transaction"), in each
case, at a higher price per share than the Purchase Price and (y) within 12
months after the date hereof, such third party consummates an Alternative
Transaction at a higher price per share than the Purchase Price, the Buyers
shall pay by wire transfer of immediately available funds to the Sellers,
promptly after the consummation of the Alternative Transaction, an aggregate
amount equal to the product of (x) the Protected Shares (as defined below); and
(y) the Price Differential (as defined below). All references herein to the
price of shares or number of shares shall be subject to appropriate adjustment
for any stock split, subdivision of shares, reverse stock split, combination of
shares, stock dividend or similar transaction.
"Protected Shares" means 650,000 or, if the Alternative
Transaction is an offer to acquire less than all of the outstanding voting
shares of the Company, the
11
product of (i) the percentage of outstanding shares (expressed as a decimal)
offered to be acquired and (ii) 650,000.
"Price Differential" means the excess, if any, of (i) the price
per share payable in the Alternative Transaction (provided that if the
consideration payable in the Alternative Transaction is other than cash, the
value of such consideration shall be determined in good faith by the Company's
Board of Directors); over (ii) the sum of (x) the Purchase Price and (y) the
Cost of Capital (as defined below).
The "Cost of Capital" means the product of (i) the Purchase
Price, (ii) 12% and (iii) a fraction, the numerator of which is equal to the
number of days from (and including) the date hereof to (but excluding) the date
of the consummation of the Alternative Transaction, and the denominator of which
is 360.
5.5 Notice of Negotiations. Each Buyer agrees that in the
event that during the period from the date hereof until the date following the
earliest to occur of (a) the disapproval of the Merger Agreement by the
Company's stockholders, (b) the termination of the Merger Agreement in
accordance with its terms or (c) the consummation of the Merger, it, any of its
subsidiaries, or its or their respective officers, directors, or representatives
engage in any negotiations or substantive discussions with any Person with
respect to any Alternative Transaction, it will, as promptly as reasonably
practicable, notify ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as representative of the Sellers of the
existence of such negotiations or discussions; provided, however, that the
failure to give such notice promptly shall not constitute a breach of this
Section 5.5 except to the extent that the Sellers are materially prejudiced
thereby. Each Seller acknowledges that it is aware, and that it will advise its
representatives who become aware of the information referred to in the prior
sentence, that the United States securities laws prohibit any Person who has
material, non-public information concerning an issuer such as the Company from
purchasing or selling securities of such issuer or from communicating such
information to any other Person under circumstances in which it is reasonably
foreseeable that such Person may purchase or sell such securities. Each Seller
agrees to keep such information confidential and not to use, or allow the use by
any of its representatives and agents of, any portion of such information for
any purpose other than monitoring a possible Alternative Transaction for the
applicability of the price protection covenant contained herein.
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6. Survival of Representations and Warranties of the Buyers and
the Sellers After Closing. Notwithstanding any right of the Buyers, on the one
hand, or the Sellers, on the other, to investigate and notwithstanding any
knowledge of facts determined or determinable by the Buyers or the Sellers
pursuant to such investigation or right of investigation, the Buyers and the
Sellers have the right to rely fully upon the representations of the other party
contained in this Agreement. The rights and remedies at law or equity of the
Buyers and the Sellers shall not be diminished or otherwise affected by the
knowledge of such party at any time of any facts relating to the matters
represented or warranted by the other party in this Agreement.
7. Miscellaneous.
7.1 Certain Definitions. (a) As used in this Agreement,
the following terms have the following meanings:
(i) "Affiliate" means, with respect to any Person,
any other Person controlling, controlled by or under common control with, or the
spouse or lineal descendants or beneficiaries of, such Person.
(ii) "Beneficial Ownership." For purposes of this
Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act).
13
(iii) "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(iv) "Governmental or Regulatory Body" means any
government or political subdivision thereof, whether federal, state, local or
foreign, or any agency or instrumentality of any such government or political
subdivision.
(v) "Lien" means any lien, pledge, mortgage,
security interest, claim, lease, charge, option, right of first refusal,
easement, servitude, transfer restriction under any shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever, other
than restrictions arising under federal or state securities laws.
(vi) "Order" means any order, judgment, injunction,
award, decision, determination, decree or writ.
(vii) "Person" means any individual, corporation,
limited liability company, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, Governmental Body or
other entity.
7.2 Publicity. The Buyers and the Sellers shall not issue
any press release or public announcement concerning this Agreement, the Merger
or the transactions contemplated hereby or thereby without the prior written
consent of the other party, which consent shall not be unreasonably withheld or
delayed, except where such release or announcement is required by applicable
law, including without limitation, any filing obligations under any state or
federal securities laws, in which
14
case the party will use its reasonable best efforts to provide a copy to the
other party prior to any release or public announcement.
7.3 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally or sent by facsimile transmission or, if mailed, five days after the
date of deposit in the United States mails, as follows:
(i) if to the Buyers, to:
Three Cities Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Willem ▇. ▇. ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
15
(ii) if to the Sellers, to:
▇▇▇▇▇▇▇▇▇ Partners Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
7.4 Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the purchase of the Shares and
supersedes all prior agreements, written or oral, with respect thereto.
7.5 Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Buyers and the Sellers or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, nor
16
any single or partial exercise of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right, power or
privilege.
7.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
7.7 Binding Effect; No Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Agreement is not assignable, except
that the Buyers may assign their rights hereunder to any of their Affiliates.
7.8 Variations in Pronouns. All pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the context may require.
7.9 Counterparts. 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.
7.10 Headings. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
7.11 Severability of Provisions. If any provision or any
portion of any provision of this Agreement, or the application of any such
provision or any portion thereof to any Person or circumstance, shall be held
invalid or unenforce-
17
able, the remaining portion of such provision and the remaining provisions of
this Agreement, and the application of such provision or portion of such
provision as is held invalid or unenforceable to Persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby so long as the economic or legal substance of the transaction
contemplated hereby is not affected in any manner adverse to any party. Upon a
determination that any term or other provision is invalid or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
18
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
THREE CITIES OFFSHORE II C.V.
By: THREE CITIES ASSOCIATES N.V.,
its general partner
By: _______________________________
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
THREE CITIES FUND II, L.P.
By: TCR ASSOCIATES, L.P.,
its general partner
By: _______________________________
Willem ▇. ▇. ▇▇ ▇▇▇▇▇
General Partner
19
▇▇▇▇▇▇▇▇▇ & CO., L.P.
By: ▇▇▇▇▇▇▇▇▇ PARTNERS L.P.,
its general partner
By: ▇▇▇▇▇▇▇▇▇ PARTNERS INC.,
its general partner
By: _______________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ FOCUS FUND L.P.
By: ▇▇▇▇▇▇▇▇▇ PARTNERS L.P.,
its general partner
By: ▇▇▇▇▇▇▇▇▇ PARTNERS INC.,
its general partner
By: _______________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ INTERNATIONAL LIMITED
By: ▇▇▇▇▇▇▇▇▇ PARTNERS INC.,
its advisor
By: _______________________________________
Name:
Title:
___________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
20
EXHIBIT A
Seller Number of Shares
------ ----------------
▇▇▇▇▇▇▇▇▇ & Co., LP 1,464,924
▇▇▇▇▇▇▇▇▇ International Limited 270,476
▇▇▇▇▇▇▇▇▇ Focus Fund L.P. 340,600
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 82,000
21
EXHIBIT B
[Form of Merger Agreement to be attached]
22
EXHIBIT C
[Form of Company Agreement to be attached]
23
EXHIBIT D
--------------------------------------------------------------------------------
A. 2000 certificated Shares delivered at the Closing
--------------------------------------------------------------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (DTC # 0161)
(a) 1,354,120 shares for the benefit of
Three Cities Offshore II C.V.
Account No. ▇▇▇▇▇▇▇▇; and
(b) 801,880 shares for the benefit of
Three Cities Fund II, L.P.
Account No. ▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
24
EXHIBIT E
A. For the 2000 Certificated Shares:
To ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chase Manhattan Bank
ABA# 021-000021
A/c ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
A/c# 024-256609
B. For the 2,156,000 Shares held in the Depository Trust Company:
▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of the Buyers, pays to Spear Leeds & ▇▇▇▇▇▇
(DTC Account # 501), on account of the Sellers.
ii