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EXHIBIT 9
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of August
20, 1999, is entered into between ▇. ▇▇▇▇▇ Stiff, (the "Seller") and Telescope
Acquisition Inc., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller owns, beneficially and of record, whether or not
subject to restrictions, 562,550 shares of common stock, par value $0.01 per
share, together with the associated preferred stock purchase rights (the
"Rights"), issued pursuant to the Rights Agreement, dated as of August 21, 1998,
as amended, by and between Omniquip International, Inc., a Delaware corporation
(the "Company") and First Chicago Trust Company of New York as Rights Agent,
(the "Shares") of the Company, and options, whether vested or unvested, to
purchase 130,000 Shares of the Company at a price equal to or less than $21 per
Share pursuant to the Company's Amended and Restated 1996 Long-Term Incentive
Plan; and
WHEREAS, the Purchaser desires to purchase from the Seller, and the
Seller desires to sell to the Purchaser, 346,275 Shares owned by the Seller (the
"Seller Shares") upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 Transfer by Seller of Shares. Simultaneously with the execution
of this Agreement and subject to the terms and conditions set forth in this
Agreement, the Seller is selling, assigning, transferring and delivering to the
Purchaser the Seller Shares, free and clear of all options, pledges, mortgages,
security interests, liens, restrictions on voting or transfer or other
encumbrances of any nature ("Encumbrances"), other than the restrictions imposed
by Federal and state securities laws.
1.2 Consideration. Simultaneously with the execution of this
Agreement and subject to the terms and conditions set forth in this Agreement,
in reliance on the representations, warranties, covenants and agreements of the
parties contained herein and in consideration of the sale, assignment, transfer
and delivery of the Seller Shares, the Purchaser is paying the consideration set
forth in Section 1.3(b) hereof (the "Purchase Price").
1.3 The Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement is taking place at the offices of ▇▇▇▇▇▇▇, Best &
Friedrich in Milwaukee, Wisconsin, simultaneously with the execution of this
Agreement by all the parties hereto.
(a) Deliveries by Seller. At the Closing, the Seller is delivering
or causing to be delivered to the Purchaser the following:
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(i) certificates evidencing the Seller Shares, which certificates
are properly endorsed for transfer or accompanied by duly executed stock
powers, in either case executed in blank or in favor of the Purchaser, and
otherwise in a form acceptable for transfer on the books of the Company;
and
(ii) all other previously undelivered documents required by this
Agreement to be delivered by the Seller to the Purchaser at the Closing in
connection with the transactions contemplated hereby.
(b) Deliveries by the Purchaser. At or prior to the Closing, the
Purchaser is delivering or causing to be delivered to or for the benefit of the
Seller the following:
(i) to the Seller, as full an complete consideration for the Seller
Shares an aggregate amount equal to $ $7,271,775 (less (A) the Deposit (as
defined in Section 1.4) which is being delivered to the Escrow Agent
pursuant to Section 1.4 and (B) any amounts paid to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.,
Inc. as previously directed by the Seller), by bank check;
(ii) all other previously undelivered documents required by this
Agreement to be delivered by the Purchaser to the Seller at the Closing in
connection with the transactions contemplated hereby; and
(iii) the Deposit to the Escrow Agent as set forth in Section 1.4.
1.4 Escrow Arrangements.
(a) Concurrently with the execution of this Agreement, (x) (a) the
Purchaser, the Parent, the Seller, and LaSalle Bank National Association, a
national banking corporation (the "Escrow Agent") are entering into an Escrow
Agreement in substantially the form attached hereto as Exhibit 1.4 (the "Escrow
Agreement") pursuant to which the Purchaser and the Seller are establishing an
interest-bearing escrow account (the "Escrow Account") with Escrow Agent and (b)
the Purchaser acting at the direction of the Seller (which is hereby irrevocably
given ) is depositing Two Million Seventy Seven Thousand Six Hundred Fifty
dollars ($2,077,650) from the Purchase Price (the "Deposit") into the Escrow
Account, which Deposit shall be held by the Escrow Agent pursuant to the
provisions of the Escrow Agreement. The Deposit, together with interest thereon
(it being the intent of the parties that as principal is distributed, interest
will be distributed proportionately), is referred to herein as the "Escrow
Amount". The parties agree that any losses to the principal amount on deposit in
the Escrow Account shall be shared equally and that in the event of any such
loss all payments hereunder will be reduced accordingly.
1.5 Application of Escrow Amount.
Except as set forth in Section 1.9, the Escrow Amount shall be
applied as follows:
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(i) if the Cumulative Performance Benchmark is less than the Minimum
Cumulative Escrow Performance Benchmark, then the Escrow Amount shall be
paid to the Parent; or
(ii) if the Cumulative Performance Benchmark equals or exceeds the
Minimum Cumulative Escrow Performance Benchmark, then the Escrow Amount as
set forth on Exhibit 1.5 against the level of Cumulative Performance
Benchmark which is the closest to the Cumulative Performance Benchmark
achieved shall be paid to Seller promptly following the Instruction Date,
and any remaining Escrow Amount shall be paid to the Parent; or
(iii) if, Purchaser fails to commence the Offer or for any reason,
or Purchaser's Offer is terminated without Shares being purchased pursuant
to the Offer for any reason other than a sale of the Company at a price
higher than Purchaser's Offer, the Escrow Amount shall be paid to the
Parent on demand (with all interest earned thereon).
1.6 Instructions to Escrow Agent. Purchaser and Seller each hereby
agrees to instruct the Escrow Agent to apply the amounts in the Escrow Account
in accordance with Section 1.5 and each acknowledges and agrees that the Escrow
Account shall only be used as provided herein and shall not be used for any
other purposes whatsoever.
1.7 Specific Performance. Each of the parties agrees that monetary
damages would be inadequate for any breach of Sections 1.5 and 1.9 and that the
other party shall be entitled to specific performance in the event of any such
breach. The fees and expenses of the Escrow Agent shall be borne by the
Purchaser.
1.8 Payment Not Compensation. It is expressly agreed that any
payment to the Seller from the Escrow Account shall not be treated as or deemed
to constitute "compensation" for any purpose, other than as required by law or
generally accepted accounting principles.
1.9 Termination of Employment.
(a) Notwithstanding any of the foregoing to the contrary, in the
event the Seller terminates his employment without good reason or is terminated
for cause (as defined in an Employment Agreement between the Seller and the
Company) at any time prior to December 31, 2002, the Seller shall receive, from
the Escrow Account, an amount equal to the lesser of (a) a pro rata portion of
the Escrow Amount that the Seller would have been entitled to receive pursuant
to Section 1.5 hereof based upon the percentage of the full calendar months in
the period from the Effective Date to December 31, 2002 (the "Employment Term")
that shall have elapsed through the date of Seller's termination of employment,
and (b) the fraction of the Escrow Amount, the numerator of which is the number
of full calendar months between the Merger Date and the end of the month
immediately prior to the date on which the Seller's employment with the Company
is terminated, and the denominator of which is the number of
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full calendar months in the period from the Merger Date to December 31, 2002, in
either case payable when the payment pursuant to Section 1.5 would have
otherwise been payable had the Seller's employment not terminated, in each case
plus interest on such sum as earned by the Escrow Account from the date the
Seller's employment terminated to the date of payment. The remainder shall be
paid to Parent.
(b) If the Seller's employment by the Company terminates for any
reason other than a reason described in Section 1.9(a) above, the Escrow Amount
shall be paid to the Seller.
1.10 Tax Liability Loans.
(i) If requested by the Seller not earlier than the date upon which
any taxes are due, based upon the good faith advice of the Seller's tax
advisor, the Purchaser shall provide a loan (the "Loan") to the Seller to
enable the Seller to pay any 1999 tax liability that is incurred by the
Seller by virtue of the Escrow Amount.
(ii) The Loans will (i) have a scheduled maturity date of 4 years
from the date of issuance, (ii) accrue interest at the lowest permissible
rate without imputation of income, compounded annually (currently
approximately 4.8%), (iii) become payable in full (together with accrued
interest) upon the earliest to occur of (A) the scheduled maturity date,
(B) 30 days following the Seller's termination of employment for any
reason, and (C) upon the occurrence of a default or insolvency or
bankruptcy of the Seller and (iv) become payable with respect to the
amount of any after-tax proceeds received by the Seller from the Escrow
Amount.
1.11 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
"Cumulative Performance Benchmark" shall mean the cumulative
consolidated Performance Benchmark of the Company and its subsidiaries for
the period beginning on the Effective Date and ending on December 31,
2002, as reported to the Parent as part of the Company's normal financial
reporting and based on the Company's consolidated financial statements for
the period from the Effective Date through December 31, 1999, and the
years ended December 31, 2000, 2001 and 2002. Such calculation and report
shall be final and binding on all parties.
"Determination Date" shall mean the date that the Chief Financial
Officer of the Parent finally determines the Cumulative Performance
Benchmark, which date shall be no more than five business days after the
Company's consolidated financial statements for the year ended December
31, 2002 have been approved by the Parent as part of its normal financial
reporting.
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"Effective Date" shall mean October 1, 1999.
"Employment Agreement" shall mean an Employment Agreement between
the Company and the Seller which may be entered into after the Tender
Offer Closing Date.
"Instruction Date" shall mean the date that the Seller and the Chief
Financial Officer of the Parent notify the Escrow Agent the amount of the
Cumulative Performance Benchmark and whether or not the Cumulative
Performance Benchmark exceeded the Minimum Cumulative Escrow Performance
Benchmark.
"Merger Date" shall mean the date of the Effective Time of the
Merger (as defined in the Merger Agreement).
"Minimum Cumulative Escrow Performance Benchmark" shall mean a
Cumulative Performance Benchmark of at least $164,600,000.
"Offer" shall have the meaning assigned to such term in the Merger
Agreement.
"Performance Benchmark" shall mean, net sales less finance charges
less cost of sales less sales, general and administrative expenses (SG&A)
of the Company and its subsidiaries on a consolidated basis. For the
avoidance of doubt, Performance Benchmark shall include acquisition
goodwill amortization of the Company (including its consolidated
subsidiaries) for acquisition goodwill created prior to the Tender Offer
Closing Date of $4.152 million; and shall exclude (i) interest expense,
(ii) the Parent's corporate expenses; (iii) the goodwill amortization of
the Parent relating to the Merger and related purchase price adjustments;
(iv) additional depreciation expense resulting from the write up of assets
following the Merger; (iv) expenses relating to the period after the
Merger for environmental, health and safety expenses, plant
reorganization, product liability insurance savings; (v) savings resulting
from the elimination of the obligation of the Company to report its
financial results publicly; and (vi) the effect of acquisitions by the
Company or its subsidiaries after the Merger Date or of the transfer by
the Parent of any business or product line to the Company or its
subsidiaries.
"Tender Offer Closing Date" shall mean the date of Purchaser's
purchase of Shares pursuant to the Offer.
Should the Employment Agreement contain definitions of the foregoing
terms which are different from those set forth above, this Agreement will be
deemed to have been amended to contain such different definitions.
1.12 Further Assurances. After the Closing, each party hereto shall
from time to time, at the request of the other party and without further cost or
expense to such other party, execute and deliver such other instruments of
conveyance and transfer and take such other actions as such other party may
reasonably request in order to more effectively consummate the
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transactions contemplated hereby and to vest in the Purchaser good and valid
title to the Seller Shares.
2. REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller hereby represents and warrants to the Purchaser as
follows:
2.1 Ownership of Stock. Seller is the record and beneficial owner of
the Seller Shares. The Seller Shares are owned free and clear of all
Encumbrances, other than the restrictions imposed by Federal and state
securities laws. At the Closing, Purchaser is acquiring a title to the Seller
Shares free and clear of all Encumbrances, other than the restrictions imposed
by Federal and state securities laws and Encumbrances arising as a result of any
action taken by the Purchaser or any of its affiliates ("Affiliates") as defined
in Rule 12b-2 of the regulations promulgated pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
2.2 Authorization, Etc. Seller has full power and authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly and validly executed by Seller
and, assuming this Agreement constitutes the legal, valid and binding agreement
of the other parties hereto, constitutes a legal, valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms, except that (i)
the enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
2.3 No Approvals or Conflicts. The execution, delivery and
performance by the Seller of this Agreement and the consummation by the Seller
of the transactions contemplated hereby will not (i) violate, conflict with or
result in a breach of any provision of, or constitute a default by the Seller
(or an event which, with notice or lapse of time or both, would constitute a
default) or give rise to any right of termination, cancellation or acceleration
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties of the Company or on the Seller's
interest in the Seller Shares under, any note, bond, mortgage, indenture, deed
of trust, license, franchise, permit, lease, contract, agreement or other
instrument to which any of the Seller, or any of Seller's properties may be
bound, (iii) violate or result in a breach of any order, injunction, judgment,
ruling, law or regulation of any court or governmental authority applicable to
the Seller or any of Seller's properties or (iv) require any order, consent,
approval or authorization of, or notice to, or declaration, filing, application,
qualification or registration with, any governmental or regulatory authority.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller as
follows:
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3.1 Organization. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
3.2 Authorization Etc. The Purchaser has full corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby to be carried out by it. The execution and
delivery by the Purchaser of this Agreement and the consummation by the
Purchaser of the transactions contemplated hereby have been duly approved and
authorized by all necessary corporate action on the part of the Purchaser, and
no other proceedings on the part of the Purchaser are necessary to approve and
authorize the execution and delivery by the Purchaser of this Agreement and the
consummation by the Purchaser of the transactions contemplated hereby. This
Agreement has been duly and validly executed by the Purchaser and, assuming this
Agreement constitutes the legal, valid and binding agreement of the other
parties hereto, constitutes a legal, valid and binding agreement of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except that (i) the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3.3 No Approvals or Conflicts. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby to be consummated by it will not (i) violate,
conflict with or result in a breach by the Purchaser of any provision of the
Certificate of Incorporation or By-laws of the Purchaser, (ii) violate, conflict
with or result in a breach of any provision of, or constitute a default by the
Purchaser (or an event which, with notice or lapse of time or both, would
constitute a default) or give rise to any right of termination, cancellation or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the Purchaser's properties under, any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit, lease,
contract, agreement or other instrument to which the Purchaser or any of its
properties may be bound, (iii) violate or result in a breach of any order,
injunction, judgment, ruling, law or regulation of any court or governmental
authority applicable to the Purchaser or any of its properties, or (iv) require
any order, consent, approval or authorization of, or notice to, or declaration,
filing, application, qualification or registration with, any governmental or
regulatory authority.
4. MISCELLANEOUS
4.1 Transfer and Conveyance Taxes. The Seller shall be liable for
and shall pay all applicable, transfer, recording, stamp and other similar
taxes, resulting from the consummation of the transactions contemplated by this
Agreement.
4.2 Fees and Expenses. Except as otherwise provided in this
Agreement, the Seller shall bear its own expenses and the Purchaser shall bear
its own expenses in connection with the preparation and negotiation of this
Agreement and the consummation of the transactions
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contemplated by this Agreement. The Seller and the Purchaser shall bear the fees
and expenses of any broker or finder retained by such party or parties and their
respective affiliates in connection with the transactions contemplated herein.
4.3 Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Wisconsin.
4.4 Amendment. This Agreement may not be amended, modified or
supplemented except upon the execution and delivery of a written agreement
executed by the Purchaser and the Seller.
4.5 Survival of Representations and Warranties. The representations
and warranties of the parties contained in this Agreement or in any instrument
delivered pursuant hereto will survive the Closing and remain in full force and
effect.
4.6 No Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto without
the prior written consent of the Purchaser, in the case of assignment by the
Seller, and the Seller, in the case of any assignment by the Purchaser; provided
that the Purchaser may assign its rights and interests under this Agreement to
any of its Affiliates.
4.7 Waiver. Any of the terms or conditions of this Agreement which
may be lawfully waived may be waived in writing at any time by each party which
is entitled to the benefits thereof. Any waiver of any of the provisions of this
Agreement by any party hereto shall be binding only if set forth in an
instrument in writing signed on behalf of such party. No failure to enforce any
provision of this Agreement shall be deemed to or shall constitute a waiver of
such provision and no waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
4.8 Notices. Any notice, demand, or communication required or
permitted to be given by any provision of this Agreement shall be deemed to have
been sufficiently given or served for all purposes if (a) personally delivered,
(b) mailed by registered or certified first-class mail, prepaid with return
receipt requested, (c) sent by a nationally recognized overnight courier
service, to the recipient at the address below indicated or (d) delivered by
facsimile which is confirmed in writing by sending a copy of such facsimile to
the recipient thereof pursuant to clause (a) or (c) above:
If to the Purchaser:
c/o Textron Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President & General Counsel,
Textron Industrial Products
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If to the Seller:
c/o Hill & ▇▇▇▇▇▇
One International Place
Boston, Mass. 92110
Attention: ▇. ▇▇▇▇▇▇▇, Esquire
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner.
Except as otherwise provided herein, any notice under this Agreement
will be deemed to have been given (x) on the date such notice is personally
delivered or delivered by facsimile, (y) four days after the date of mailing if
sent by certified or registered mail or (z) the next succeeding business day
after the date such notice is delivered to the overnight courier service if sent
by overnight courier; provided that in each case notices received after 4:00
p.m. (local time of the recipient) shall be deemed to have been duly given on
the next business day.
4.9 Complete Agreement. This Agreement and the other documents and
writings referred to herein or delivered pursuant hereto contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and thereof.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
4.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
4.11 Publicity. The Seller and the Purchaser will consult with each
other and will mutually agree upon any publication or press release of any
nature with respect to this Agreement or the transactions contemplated hereby
and shall not issue any such publication or press release prior to such
consultation and agreement except as may be required by applicable law or by
obligations pursuant to any listing agreement with any securities exchange or
any securities exchange regulation, in which case the party proposing to issue
such publication or press release shall make all reasonable efforts to consult
in good faith with the other party or parties before issuing any such
publication or press release and shall provide a copy thereof to the other party
or parties prior to such issuance.
4.12 Headings. The headings contained in this Agreement are for
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
4.13 Severability. Any provision of this Agreement which is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions
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hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal or unenforceable in any other jurisdiction.
4.14 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation, other than the parties hereto
and their permitted successors or assigns, any rights or remedies under or by
reason of this Agreement.
4.15 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE PARTIES
HERETO HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE AREA ENCOMPASSED BY MILWAUKEE COUNTY, WISCONSIN AND IRREVOCABLY AGREE
THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
SHALL BE LITIGATED IN SUCH COURTS. THE PARTIES HERETO EACH ACCEPT FOR ITSELF AND
HIMSELF, AS THE CASE MAY BE, AND IN CONNECTION WITH ITS OR HIS, AS THE CASE MAY
BE, RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM
NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. THE SELLER DESIGNATES CT
CORPORATION SYSTEM AND SUCH OTHER PERSON AS MAY HEREINAFTER BE SELECTED BY THE
SELLER WHO IRREVOCABLY AGREES IN WRITING TO SO SERVE AS AGENT FOR THE SELLER TO
RECEIVE ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY THE PARTIES HERETO TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED
BY REGISTERED MAIL TO THE PARTIES HERETO, AS PROVIDED HEREIN, EXCEPT THAT UNLESS
OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS.
4.16 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW,
THE PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. THE
PARTIES HERETO ALSO WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY OF THE OTHER PARTIES. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PARTIES HERETO
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
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INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER
IN THEIR RELATED FUTURE DEALINGS. THE PARTIES HERETO FURTHER WARRANT AND
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS OR HIS, AS THE CASE MAY
BE, LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS OR HIS, AS
THE CASE MAY BE, JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
[THE REMAINDER OF THIS PAGE IS INTENDED TO BE BLANK]
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IN WITNESS WHEREOF, the Seller has executed this Agreement, and the
Purchaser has caused this Agreement to be executed by its duly authorized
officer, in each case as of the day and year first above written.
/s/ ▇. ▇▇▇▇▇ Stiff
___________________________________
▇. ▇▇▇▇▇ Stiff
Telescope Acquisition Inc.
By: /s/ Bhikhaji Maneckji
____________________________
Name: Bhikhaji Maneckji
Title: Vice President