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EXHIBIT 2.2
STOCKHOLDERS AGREEMENT
DATED SEPTEMBER 18, 1995
The parties to this agreement are HK Acquisition Company, Inc., a Delaware
corporation (the "Buyer"), ▇▇▇▇▇▇▇'▇ Home Furnishings Corporation, a Delaware
corporation ("Parent"), Jupiter Industries, Inc., a Tennessee corporation
("Jupiter"), and Sussex Group, Ltd., a Delaware corporation ("Sussex" and,
together with Jupiter, the "Sellers").
Jupiter owns 800,000 shares (the "Jupiter Shares") and Sussex owns
1,400,000 shares (the "Sussex Shares") of the common stock, par value $.01 per
share (the "Common Stock"), of ▇▇▇▇▇▇▇ Koos Inc., a Delaware corporation (the
"Company"). The Jupiter Shares and the Sussex Shares together represent an
aggregate of 55.9% of the outstanding shares of the Common Stock as of this
date. The Jupiter Shares, the Sussex Shares and any additional shares that
either of the Sellers may acquire prior to any tender pursuant to section 1
hereof, prior to any vote pursuant to section 2 hereof, or prior to any purchase
pursuant to section 3 hereof, as applicable, are collectively referred to as the
"Shares."
Simultaneously with the execution and delivery of this agreement, the
Buyer, Parent and the Company are executing an agreement and plan of merger (the
"Merger Agreement") providing for a tender offer by the Buyer for all of the
outstanding Common Stock (the "Offer") for $9.375 per share in cash (such
amount, or any greater amount per share paid pursuant to the Offer, being
hereinafter referred to as the "Per Share Amount") and the subsequent merger of
the Buyer with and into the Company (with the Company as the surviving
corporation), or other acquisition of the Company by Parent (collectively, the
"Acquisition"). To induce the Buyer and Parent to enter into the Merger
Agreement, the Sellers wish to agree to tender their shares in the Offer, vote
their Shares in favor of the Merger Agreement, grant to the Buyer options to
purchase the Shares and agree to the other matters provided in this agreement,
all on the terms set forth below.
It is therefore agreed as follows:
1. TENDER OF SHARES. (a) Within ten business days after the commencement
by the Buyer of the Offer, each of the Sellers shall tender to the paying agent
or depositary designated in the offer to purchase document (and related letter
of transmittal) distributed by the Buyer in connection with the Offer (i) a
completed and signed letter of transmittal with respect to the Shares, complying
with the terms of the Offer, (ii) the certificates representing the Shares and
(iii) all other documents or instruments required to be delivered pursuant to
the terms of the Offer. So long as the consideration in the Offer is in cash and
is at least equal to the Per Share Amount, neither of the Sellers shall withdraw
the tender effected in accordance with this section 1(a) under any circumstances
unless (i) the Offer expires or is terminated in accordance with the Merger
Agreement or (ii) this agreement terminates pursuant to its terms.
(b) Each of the Sellers shall execute and deliver all such further
documents and instruments as the Buyer may reasonably request to vest in the
Parent and the Buyer the power to carry out the provisions of this agreement.
2. AGREEMENT TO VOTE; PROXY.
2.1 Agreement to Vote. Until the Expiration Date (as defined in section
3(e)), each of the Sellers shall, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, vote (or cause to be voted) the Shares (i) in favor
of the Acquisition, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this agreement; (ii) against any action
or agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this agreement; and (iii) against any
action or agreement (other than the Merger Agreement) that is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, discourage
or materially and adversely affect the Acquisition or any of the other
transactions to be consummated pursuant to the Merger Agreement, including, but
not limited to: (A) any extraordinary corporate transaction, such as a
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merger, consolidation or other business combination involving the Company or its
subsidiaries; (B) a sale, lease or transfer of material assets of the Company or
its subsidiaries or a reorganization, recapitalization or liquidation of the
Company or its subsidiaries; (C) any change in the management or board of
directors of the Company, except as otherwise agreed to in writing by the Buyer;
(D) any material change in the present capitalization or dividend policy of the
Company or any amendment of the Company's certificate of incorporation or
by-laws; or (E) any other material change in the Company's corporate structure
or business. Neither Seller shall enter into any agreement or understanding with
any person or entity prior to the Expiration Date to vote or give instructions
after the Expiration Date in any manner inconsistent with the preceding
sentence.
2.2 Proxy. Each of the Sellers hereby grants from the date of this
agreement until the Expiration Date to, and appoints, the Buyer and the Chairman
of the Board, the President, the Secretary and the Chief Financial Officer of
the Buyer, in their respective capacities as officers of the Buyer, and any
individual who shall hereafter succeed to any such office of the Buyer, and any
other designee of the Buyer, and each of those persons individually, as the
Seller's irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote the Shares at any regular or special meeting of the
stockholders with respect to the Shares or take actions by written consent
solely for the matters indicated in section 2.1. Each of the Sellers intends
that the proxy it is granting pursuant to this provision be irrevocable and
coupled with an interest and each shall take such further action or execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by it with respect to the Shares.
3. OPTION. (a) Jupiter and Sussex each hereby grants to the Buyer an
irrevocable option (collectively, the "Options") to purchase the Jupiter Shares
and the Sussex Shares, respectively, and any additional Shares that each may
acquire hereafter, at the cash purchase price of $9.375 per share (the "Purchase
Price"), exercisable by the Buyer in the manner provided in section 3(b) at any
time prior to the Expiration Date. The Options must be exercised simultaneously
by the Buyer and all the Shares must be purchased by the Buyer at the same time.
(b) The Options shall be exercisable (subject to the second following
sentence) by giving written notice to the Sellers specifying a date (not earlier
than one business day nor later than ten business days from the date such notice
is delivered to the Sellers) and place in either Chicago or New York City, at
the Buyer's option, for closing of the exercise of the Options (the "Closing").
Upon delivery of such notice, the Options shall be deemed to have been exercised
by the Buyer regardless of the actual date of Closing. The Options shall not be
exercised unless (i) all waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), required for the purchase
of the Shares hereunder shall have expired or been waived, (ii) there shall not
be in effect any preliminary or final injunction or other order issued by any
court or governmental, administrative or regulatory agency or authority
prohibiting the exercise of the Options pursuant to this agreement and (iii) the
Offer shall have expired, been terminated, or been otherwise cancelled. Except
as contemplated by this agreement, until the Expiration Date, no transfer or
other disposition of the Shares shall take place other than pursuant to a tender
of the Shares in the Offer or other transaction in connection with the
Acquisition.
(c) At the Closing, the Buyer shall deliver to the Sellers an amount, in
immediately available funds, equal to the product of (i) the number of Shares to
be purchased pursuant to the terms of this agreement and (ii) the Purchase
Price, and the Sellers shall deliver or cause to be delivered to the Buyer
certificates representing all of the Shares being acquired, in proper form for
transfer on the books of the Company, free and clear of all Encumbrances (as
defined in section 4.2(b)). Each of the Sellers acknowledges that performance of
its obligations under this section 3 is of vital importance to the Buyer, that
damages are an inadequate remedy for breach of its obligations represented
hereby and, accordingly, that the only remedy for failure to fulfill such
obligations is that of specific performance.
(d) Promptly after any purchase of the Shares pursuant to this agreement,
other than in connection with the consummation of the Offer, the Buyer and
Parent shall take such steps as may be necessary to effect a long form merger
(pursuant to section 251 of the Delaware General Corporation Law) in conjunction
with and cooperation with the Company or, if such long form merger is not
effected, to provide to each holder of
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Common Stock, other than Jupiter and Sussex, the opportunity to sell his, her or
its shares to the Buyer or Parent at a price per share, in cash net to the
seller, not less than the Purchase Price.
(e) "Expiration Date" shall mean the date on which the Merger Agreement
terminates or expires.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of the Buyer. The Buyer hereby
represents and warrants to each of the Sellers that:
(a) The Buyer is a corporation duly organized and validly existing under
the laws of its jurisdiction of incorporation. The Buyer has duly executed and
delivered this agreement and this agreement is a valid and binding agreement of
the Buyer, enforceable against the Buyer in accordance with its terms.
(b) Except for applicable filings under the HSR Act and under the
Securities Exchange Act of 1934 or any applicable state blue sky authorities in
connection with the Offer (i) no filing with, and no permit, authorization,
consent or approval of, any public body or authority of the United States or any
foreign government or any subdivision thereof is necessary for, or is otherwise
intended by the Buyer to be made in connection with, the consummation by the
Buyer or any of its affiliates of the transactions contemplated by this
agreement and (ii) neither the execution and delivery of this agreement by the
Buyer nor the consummation by the Buyer of the transactions contemplated hereby
nor compliance by the Buyer or any of its affiliates with any of the provisions
hereof will (A) conflict with or result in any breach of any provision of the
certificate of incorporation or by-laws (or similar documents) of the Buyer or
any of its affiliates, (B) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which the Buyer or any
of its affiliates is a party or by which any of them or any of their properties
or assets may be bound or (C) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Buyer, any of its affiliates or
any of their properties or assets, except in the case of (B) and (C) for
violations, breaches or defaults that would not in the aggregate materially and
adversely affect the Buyer and its affiliates taken as a whole or the ability of
the Buyer to perform its obligations under this agreement.
(c) The Buyer or its designee will acquire the Shares (and any Additional
Shares) for its own account and not with a view to any resale or distribution
thereof, and will not sell any Shares (or any Additional Shares) unless such
shares are registered under the Securities Act of 1933 and any applicable blue
sky laws, or unless an exemption from such registration is available.
(d) The Buyer has the requisite corporate power and authority to execute
and deliver this agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
board of directors of the Buyer and no other corporate proceedings on the part
of the Buyer are necessary to authorize this agreement or to consummate the
transactions so contemplated.
4.2 Representations and Warranties of the Sellers. Each of the Sellers
hereby represents and warrants to the Buyer and Parent that:
(a) Such Seller is a corporation duly organized and validly existing under
the laws of its jurisdiction of incorporation. Such Seller has duly executed and
delivered this agreement and this agreement is a valid and binding agreement of
such Seller, enforceable against such Seller in accordance with its terms.
(b) As of the date hereof, except as described in the last sentence of this
section 4.2(b), such Seller has good and marketable title to its respective
Shares, in each case free and clear of all liabilities, claims, liens, options,
proxies, charges and encumbrances of any kind whatsoever (collectively,
"Encumbrances"). Upon exercise of the Options and payment for the Shares or upon
purchase of the Shares in connection with the Offer, the Buyer will acquire (the
matters referred to in the following sentence notwithstanding) good, valid and
marketable title to such Seller's Shares free and clear of all Encumbrances.
Sussex has granted a security interest in, and pledged, the Sussex Shares
pursuant to a pledge agreement with LaSalle National Bank (the "Bank"). Such
pledge agreement notwithstanding, Sussex and the Bank will tender the Sussex
Shares in
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accordance with the provisions of section 1 and will otherwise perform and
comply with each and every one of Sussex's covenants under this agreement,
including such covenants under sections 2 and 3, as if no such pledge agreement
existed.
(c) The execution and delivery of this agreement by such Seller and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action and no other corporate proceedings on the part
of such Seller are necessary to consummate the transactions contemplated hereby,
and such Seller has all requisite corporate power and authority to enter into
this agreement and to consummate the transactions contemplated hereby. Except as
contemplated by this agreement, or as described in the last sentence of section
4.2(b), such Seller has or will have sole voting power and sole power of
disposition, or the sole power to direct voting and disposition, with respect to
all of its respective Shares to be purchased by the Buyer from such Seller, as
the case may be, with no restrictions on its voting rights or rights of
disposition pertaining thereto. Upon the exercise of the Options and payment for
the Shares, the Buyer will acquire the sole voting power and sole power of
disposition of all of the Shares purchased from such Seller pursuant to the
exercise of the Options. This agreement has been duly and validly executed and
delivered by such Seller and constitutes a valid and binding agreement of such
Seller, enforceable against such Seller in accordance with its terms.
(d) Neither the execution and delivery of this agreement nor the
consummation of the transactions contemplated hereby will (i) require such
Seller to file or register with, or obtain any material permit, authorization,
consent or approval of, any governmental agency or other entity, except as may
be required under the HSR Act or the Securities Exchange Act of 1934 or any
applicable state blue sky authorities, (ii) violate any provision of the
Certificate of Incorporation or By-laws (or equivalent documents) of such Seller
or the Company, (iii) either itself or with notice or lapse of time or both,
violate, or be in conflict with, or constitute a default under, or result in the
termination of, or accelerate the performance required by, or cause the
acceleration of the maturity of any material debt or obligation pursuant to, or
result in the creation or imposition of any lien, directly or indirectly, upon
any Shares under any material agreement or commitment to which such Seller is a
party or by which such Seller is bound or to which the property of such Seller
is subject, or (iv) violate any judgment, decree or order of any court or
governmental agency or other entity or any arbitration award binding upon such
Seller.
(e) Section 3.10(a) of the Schedule to the Merger Agreement lists every
employment or other agreement with any senior officer of the Company. The
Sellers have previously provided to the Buyer true and correct copies of any
agreements between them or any of their affiliates and the Company.
5. ADDITIONAL COVENANTS OF THE PARTIES.
5.1 Further Assurances. The parties shall use their reasonable best
efforts to take all action necessary in connection with the making of any
governmental filings (including any filings under the HSR Act) necessary or, in
the judgment of the Buyer, advisable, in connection with this agreement.
5.2 No Solicitation. Until the Expiration Date, each of the Sellers in
their capacities as stockholders shall not, and shall cause every investment
banker, financial advisor, attorney, accountant and other representative
retained by it not to, solicit, encourage (including by way of furnishing
information), or take any other action to facilitate, any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, any proposal or agree to or endorse any proposal in connection with an
acquisition of all or substantially all of the outstanding capital stock or all
or substantially all of the assets of the Company. If a Seller receives or
becomes aware of any such proposal, then such Seller shall promptly inform the
Buyer of the terms and conditions of such proposal and the identity of the
person making it. The Sellers shall immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties to which
it, or any of its stockholders, directors, officers, attorneys or other agents
or representatives on its behalf, is a party in its capacity as a stockholder of
the Company, conducted heretofore with respect to any of the foregoing.
5.3 Restrictions on Transfer, Proxies and Non-Interference. Until the
Expiration Date, neither of the Sellers shall, except as contemplated by this
agreement, (i) sell, transfer, pledge, encumber, assign or
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otherwise dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, encumbrance, assignment or other disposition of,
any of the Shares, or any interest therein, (ii) grant any proxies or powers of
attorney, deposit any shares into a voting trust or enter into a voting
agreement with respect to any Shares or (iii) take any action that would make
any representation or warranty of such Seller contained herein untrue or
incorrect to any material extent or have the effect of preventing or disabling
such Seller from performing its obligations under this agreement.
5.4 Cooperation; Certain Matters. Upon purchase of the Shares pursuant to
this agreement or the Merger Agreement, each of the Sellers shall, at its sole
cost and expense, use all reasonable efforts to cooperate with and assist Parent
and the Company in connection with any audit, dispute or proceeding relating to
any deduction by the Company of any payment to either of the Sellers. This
cooperation will include furnishing all relevant records and documentation and
making available the appropriate officers and other persons to advise Parent and
the Company with respect to such matters and to appear in person as reasonably
necessary in connection with any such audits and other proceedings. Upon
purchase of the Shares pursuant to this agreement or the Merger Agreement,
Jupiter and Sussex shall be jointly and severally liable for all Environmental
Costs (as defined below) in connection with the matter described in section 3.18
of the Schedule to the Merger Agreement (the "Environmental Matter"), up to a
maximum aggregate liability of $500,000. In clarification of the foregoing, each
of Parent, on the one hand, and Jupiter and Sussex, on the other hand, shall pay
one-half of all Environmental Costs relating to the Environmental Matter but in
no event shall the Environmental Costs required to be paid by Jupiter and Sussex
exceed an aggregate of $500,000. Any Environmental Costs in excess of $1,000,000
(of which $500,000 will have been borne by Jupiter and Sussex and $500,000 will
have been borne by Parent) will not be the responsibility of Jupiter and Sussex.
If Parent is required or will be required to incur Environmental Costs, Parent
shall give reasonably prompt notice to Jupiter and Sussex. Thereafter, upon
presentation of invoices, Jupiter and Sussex shall pay to Parent, on demand,
one-half of all Environmental Costs. If Parent incurs and fully pays
Environmental Costs without prior contribution by Jupiter and Sussex, Parent
shall be entitled, upon presentation of proof of payment, to reimbursement, on
demand, by Jupiter and Sussex, of one-half of such expenses. No notice of claim
may be made by Parent for any Environmental Costs after three years from the
closing date of the Acquisition. Except as set forth below, Parent shall not
voluntarily initiate any remediation efforts with respect to the Environmental
Matter. Parent will only commence remediation efforts and incur Environmental
Costs if and to the extent required by a third party (i.e., by governmental
action, lawsuit or other third party event which reasonably requires Parent to
undertake further investigation and/or commence remediation action with respect
to the Environmental Matter) or if action is otherwise clearly required under
applicable law. "Environmental Costs" shall mean all costs and expenses incurred
in connection with the investigation, testing, remediation, encapsulation,
removal, treatment or disposal of material required under applicable law in
connection with the Environmental Matter and all costs, expenses, penalties or
fines incurred in connection with, in the defense of, or as a result of any
claim asserted by any third party, including but not limited to any governmental
agency, in connection with the Environmental Matter. Environmental Costs shall
include, but not be limited to, reasonable attorneys and consultants fees.
Section 7.9 notwithstanding, all disputes or actions relating to the
Environmental Matter or the obligation of Jupiter and Sussex to make payments
hereunder with respect to Environmental Costs shall be governed by and construed
in accordance with the internal laws of the state of New Jersey and Jupiter and
Sussex hereby consent to the jurisdiction of the courts of the state of New
Jersey as the situs for resolution of any claim arising in that connection.
5.5 Additional Shares. Until the Expiration Date, each of the Sellers
shall promptly notify the Buyer of the number of any additional Shares, if any,
acquired by the Seller or any of its affiliates.
5.6 Termination of Affiliate Agreements. Prior to the earliest of any
purchase of the Shares hereunder, the consummation of the Offer or the
consummation of the Merger, the Sellers shall, and shall cause the Company to,
terminate every management and other agreement referred to in the second
sentence of section 4.2(e) all without any liability of any kind to such
persons. In addition, the Sellers shall cause each such person to refund to the
Company, prior to any closing under the Merger Agreement, a pro rata amount of
all fees under any such management and other agreements that may have been
prepaid by the Company (with
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such pro rata amount determined based on the number of days elapsed over the
period for which such payment relates).
5.7 Stop Transfer Order. In furtherance of this agreement, concurrently
herewith, each of the Sellers hereby directs and authorizes the Company's
counsel to notify the Company's transfer agent that there is a stop transfer
order until the Expiration Date with respect to all of the Shares (and that this
agreement places limits on the voting and transfer of the Shares).
5.8 Expenses of the Sellers. The Buyer acknowledges that the Company will
pay the fees and expenses of the legal counsel employed by it in the negotiation
of any definitive agreement with respect to the acquisition of the Company by
the Buyer or its designee. However, each of the Sellers shall pay its own legal
fees and expenses, and all other fees and expenses incurred by such Seller, in
connection with this agreement, the transactions contemplated hereby and the
Acquisition or any other acquisition of the Company by the Buyer or any
affiliate or designee thereof.
5.9 Public Statements. Until the Expiration Date, the parties shall
consult with each other before issuing any press releases or otherwise making
any public statements with respect to the transactions contemplated herein and
shall not issue any such press release or make any such public statement without
the approval of the other parties, except as may be required by law or
applicable stock exchange rules.
6. SURVIVAL OF WARRANTIES. The representations and warranties of the
Sellers and of the Buyer contained herein shall survive the purchase of the
Shares pursuant to the Offer, the consummation of the Merger or the Closing
hereunder and shall not be deemed waived or otherwise affected by such purchase,
Merger or Closing or by any investigation made by the other parties hereto. Each
representation and warranty contained herein and therein shall survive such
purchase, Merger or Closing until the expiration of the applicable statute of
limitations, including extensions thereof, and termination of this agreement
shall not affect any of the rights of the parties with respect to breaches of
any agreements herein prior to termination.
7. MISCELLANEOUS.
7.1 Adjustments. In the event that the Company institutes any change in
the Shares by reason of stock dividends, stock splits, mergers,
recapitalizations, combinations, conversions, exchanges of shares or the like,
the number and kind of Shares subject to this agreement and the price to be paid
for such Shares shall be appropriately adjusted to reflect changes made in the
Shares.
7.2 Entire Agreement. This agreement contains the entire understanding of
the parties and supersedes any prior agreements and understandings between the
parties with respect to its subject matter. This agreement may be amended only
by a written instrument duly executed by the parties hereto.
7.3 Headings. The headings contained in this agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this agreement. Time is of the essence with respect to all provisions of this
agreement.
7.4 Assignment. This agreement may not be assigned by Seller, Parent or
Buyer; provided, however, that Parent or Buyer may assign this agreement to any
wholly owned subsidiary or person or entity owning 100% of the outstanding
common stock of Parent or Buyer but no such assignment shall affect the
obligations of Parent or Buyer under this agreement. Subject to the foregoing,
this agreement will be binding upon and inure to the benefit of the successors
and assigns of each of the parties hereto.
7.5 Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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7.6 Notices. All notices and other communications under this agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery; (b) facsimile transmission; (c) registered or certified mail,
postage prepaid, return receipt requested; or (d) reputable overnight delivery
service. Notices shall be sent to the appropriate party at its address or
facsimile number given below (or at such other address or facsimile number for
such party as shall be specified by notice given hereunder):
(a) If to the Buyer or Parent:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Jupiter or Sussex, to it at:
c/o JG Industries, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed given upon the earliest to
occur of (a) actual receipt thereof by the addressee, (b) actual delivery
thereof to the appropriate address, (c) in the case of a facsimile transmission,
upon transmission thereof by the sender and issuance by the transmitting machine
of a confirmation slip confirming that the number of pages constituting the
notice have been transmitted without error and (d) in the case of overnight
delivery service, the day after such notice is given to such service for
delivery. In the case of notices sent by facsimile transmission, the sender
shall contemporaneously mail a copy of the notice to the addressee at the
address provided for above. However, such mailing shall in no way alter the time
at which the facsimile notice is deemed given.
7.7 Amendments. This agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
7.8 Severability. Whenever possible, each provision or portion of any
provision of this agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this agreement shall be
reformed, construed and
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enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
7.9 Governing Law. This agreement shall be governed by and construed and
enforced in accordance with the laws of the state of Delaware, applicable to
agreements made and to be performed entirely in Delaware.
HK ACQUISITION COMPANY, INC.
By: /S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
▇▇▇▇▇▇▇'▇ HOME FURNISHINGS
CORPORATION
By: /S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
JUPITER INDUSTRIES, INC.
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
SUSSEX GROUP, INC.
By: /S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman
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