Exhibit 2.2
STOCK AND NOTE PURCHASE AGREEMENT
BY AND AMONG
MELHAM, INC.,
▇▇▇▇ PRINTING COMPANY,
▇▇▇▇ PRINTING GROUP, INC.,
SCIENCE CRAFTSMAN INCORPORATED,
PORT CITY PRESS, INC.
AND
GS MEZZANINE PARTNERS, L.P.,
GS MEZZANINE PARTNERS OFFSHORE, L.P.,
STONE STREET FUND 1997, L.P.,
AND
BRIDGE STREET FUND 1997, L.P.
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Dated as of April 1, 1999
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................2
Section 1.01. Affiliate...............................................2
Section 1.03. Closing Date............................................2
Section 1.04. Collateral..............................................2
Section 1.05. Credit Documents........................................2
Section 1.06. Effective Time of Closing...............................2
Section 1.07. Issuers.................................................2
Section 1.08. Goldman Bridge Financing Notes..........................2
Section 1.09. Goldman Entities........................................3
Section 1.10. Law.....................................................3
Section 1.11. Liability...............................................3
Section 1.12. Liens...................................................3
Section 1.13. ▇▇▇▇....................................................3
Section 1.14. ▇▇▇▇ Common Stock.......................................3
Section 1.15. MPG.....................................................3
Section 1.16. Material Adverse Effect.................................3
Section 1.17. Melham, Inc.............................................3
Section 1.18. Melham Purchase Agreement...............................4
Section 1.19. 1997 Purchase Agreement.................................4
Section 1.20. 1997 Notes..............................................4
Section 1.21. Pay-Off Goldman Bridge Financing Notes..................4
Section 1.22. PCP.....................................................4
Section 1.23. Person..................................................4
Section 1.24. Real Estate Releases....................................4
Section 1.25. Real Property...........................................4
Section 1.26. Releases................................................4
Section 1.27. Securities Act..........................................5
Section 1.28. Science.................................................5
Section 1.29. Shares..................................................5
Section 1.30. Subsidiaries............................................5
Section 1.31. Transaction Documents...................................5
ARTICLE II PURCHASE AND SALE.................................................5
Section 2.01. ▇▇▇▇'▇ Commitment to Deliver Pay-Off Amount.............5
Section 2.02. Commitment to Sell......................................5
Section 2.03. Commitment to Purchase..................................6
Section 2.04. Deliveries at Closing...................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE GOLDMAN ENTITIES...........7
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Section 3.01. Organization............................................7
Section 3.02. Enforceability..........................................7
Section 3.03. Consents and Approvals; No Violation or Conflict
by the Goldman Entities.......................................7
Section 3.04. Title to the Shares and 1997 Notes......................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇............................9
Section 4.01. Organization............................................9
Section 4.02. Authority; Enforceability...............................9
ARTICLE V CONDITIONS PRECEDENT TO CLOSING...................................10
Section 5.01. Conditions Precedent to Obligations of ▇▇▇▇............10
Section 5.02. Conditions Precedent to Obligations of the Goldman
Entities........................................................11
ARTICLE VI TERMINATION; AMENDMENT; WAIVER...................................12
Section 6.01. Termination............................................12
Section 6.02. Effect of Termination..................................13
Section 6.03. Amendment..............................................13
Section 6.04. Extension; Waiver......................................13
ARTICLE VII INDEMNITIES AND ADDITIONAL COVENANTS............................13
Section 7.01. Survival...............................................13
Section 7.02. The Goldman Entities'Indemnity.........................13
Section 7.03. ▇▇▇▇'▇ Indemnity.......................................15
Section 7.04. Sole and Exclusive Remedy..............................17
Section 7.05. Further Assurances.....................................17
Section 7.06. Mutual Release.........................................18
Section 7.07. Termination of Transaction Documents...................19
ARTICLE VIII MISCELLANEOUS..................................................19
Section 8.01. Entire Agreement; Assignment...........................19
Section 8.02. Notices................................................20
Section 8.03. Governing Law..........................................21
Section 8.04. Descriptive Headings...................................21
Section 8.05. Parties in Interest....................................21
Section 8.06. Counterparts...........................................21
Section 8.07. Specific Performance...................................21
Section 8.08. Fees and Expenses......................................21
Section 8.09. Severability...........................................21
Section 8.10. No Reliance............................................22
Section 8.11. Consent to Jurisdiction................................22
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EXHIBIT INDEX
Exhibit 1.02 Form of Goldman Bridge Financing Note
SCHEDULE INDEX
Schedule 1.12 Liens
Schedule 1.24 Real Estate Releases
Schedule 1.31 Transaction Documents
Schedule 2.01 Payment Instructions
Schedule 2.03 Allocation of Purchase Price
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STOCK AND NOTE PURCHASE AGREEMENT
STOCK AND NOTE PURCHASE AGREEMENT, made as of the 1st day of April, 1999,
by and among ▇▇▇▇ PRINTING COMPANY, a Pennsylvania corporation ("▇▇▇▇"), ▇▇▇▇
PRINTING GROUP, INC., a Delaware corporation and wholly owned subsidiary of ▇▇▇▇
("MPG"), SCIENCE CRAFTSMAN INCORPORATED, a New York corporation and wholly owned
subsidiary of ▇▇▇▇ ("Science"), PORT CITY PRESS, INC., a Maryland corporation
and wholly owned subsidiary to ▇▇▇▇ ("PCP", and together with ▇▇▇▇, MPG and
Science, the "Issuers"), MELHAM, INC., a Delaware corporation and parent entity
of ▇▇▇▇ ("▇▇▇▇▇▇") and G.S. MEZZANINE PARTNERS, L.P., a Delaware limited
partnership ("Mezzanine"), G.S. MEZZANINE PARTNERS OFFSHORE, L.P., a Cayman
Islands exempted limited partnership ("Offshore"), STONE STREET FUND 1997, L.P.,
a Delaware limited partnership, and BRIDGE STREET FUND 1997, L.P., a Delaware
limited partnership.
RECITALS
WHEREAS, the Goldman Entities own of record and beneficially 75,000 shares
of ▇▇▇▇ Common Stock (the "Shares");
WHEREAS, the Goldman Entities own of record and beneficially $25,000,000
in aggregate principal amount of 12% Senior Subordinated Notes due March 31,
2007 issued by the Issuers to the Goldman Entities;
WHEREAS, the Issuers desire to prepay the 1997 Notes in full, and the
Goldman Entities desire the Issuers to prepay the 1997 Notes in full;
WHEREAS, the Goldman Entities desire to sell the Shares to ▇▇▇▇, and ▇▇▇▇
desires to purchase the Shares from the Goldman Entities;
WHEREAS, the parties hereto in connection with the sale of the Shares and
prepayment of the 1997 Notes desire to terminate certain ancillary agreements
relating to the Shares and the 1997 Notes in connection with such prepayment and
sale and purchase;
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, and intending to be legally bound hereby, it hereby is agreed
that:
ARTICLE I
DEFINITIONS
Section 1.01.00 Affiliate. "Affiliate" shall have the meaning set
forth in Rule 405 of the Securities Act.
Section 1.02.00 Closing. "Closing" shall mean the conference held at 10:00
a.m., local time, on the Closing Date, at the offices of Hunton & ▇▇▇▇▇▇▇▇, ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other place and time as may be
agreed upon by ▇▇▇▇ and the Goldman Entities.
Section 1.03.00 Closing Date. "Closing Date" shall mean April 1,
1999, or such other date as the parties hereto may mutually agree to in
writing.
Section 1.04. Collateral. "Collateral" shall mean any and all property and
assets of the Issuers upon which there exists a Lien in favor of the Goldman
Entities, including without limitation, stock certificates representing shares
of capital stock pledged to the Goldman Entities.
Section 1.05.00 Credit Documents. "Credit Documents" shall mean the
Indenture, the Note Purchase Agreement, the Goldman Bridge Financing Notes, the
Pay-Off Goldman Bridge Financing Notes, the Guarantee dated as of the date
hereof provided by Cadmus pursuant to the Indenture, and the Registration Rights
Agreement dated as of the date hereof by and among ▇▇▇▇ and the Goldman
Entities.
Section 1.06.00 Effective Time of Closing. "Effective Time of
Closing" shall mean 12:01 a.m., Eastern Standard time, on the Closing Date.
Section 1.07.00 Issuers. "Issuers" shall have the meaning set forth
in the Preamble.
Section 1.08. 00Goldman Bridge Financing Notes. "Goldman Bridge Financing
Notes" shall mean $9,500,000 aggregate principal amount of the Senior
Subordinated Increasing Rate Notes Due March __, 2000 issued by ▇▇▇▇ and
guaranteed by Cadmus Communications Corporation, a Virginia corporation
("Cadmus"), in the form of Exhibit 1.08 attached hereto (the "Series C Notes")
issued pursuant to (i) that certain indenture, dated as of the date hereof (the
"Indenture") among ▇▇▇▇, the Guarantors (as defined therein) and Wilmington
Trust Company, a Delaware banking corporation, as Trustee, and (ii) that certain
Note Purchase Agreement dated the date hereof among ▇▇▇▇, as Issuer, the
Guarantors named therein, and the Goldman Entities, as purchasers (the "Note
Purchase Agreement").
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Section 1.09.00 Goldman Entities. "Goldman Entities" shall mean
collectively, GS Mezzanine Partners, L.P., a Delaware limited partnership, GS
Mezzanine Partners Offshore, L.P., a Cayman Islands exempted limited
partnership, Stone Street Fund 1997, L.P., a Delaware limited partnership
("Stone Street"), and Bridge Street Fund 1997, L.P., a Delaware limited
partnership ("▇▇▇▇▇▇ ▇▇▇▇▇▇," and together with Stone Street, the successors in
interest entities to The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P.).
Section 1.10.00 Law. "Law" shall mean any federal, state, local or other
law (including common law) or governmental requirement of any kind, domestic or
foreign, and the rules, regulations and orders promulgated thereunder.
Section 1.11.00 Liability. "Liability" shall mean any direct or indirect
liability, indebtedness, obligation, commitment, expense, claim, deficiency,
deferred income, guaranty or endorsement of or by any Person of any type,
whether known, unknown, accrued, unaccrued, absolute, contingent, matured or
unmatured.
Section 1.12.00 Liens. "Liens" shall mean those liens, encumbrances,
mortgages, charges, claims, restrictions, pledges, security interests, and other
matters affecting any of the Collateral that are specifically listed on Schedule
1.12 attached hereto, all of which Liens shall be released and terminated
pursuant to the terms of this Agreement.
Section 1.13.00 ▇▇▇▇. "▇▇▇▇" shall have the meaning set forth in the
Preamble.
Section 1.14.00 ▇▇▇▇ Common Stock. "▇▇▇▇ Common Stock" shall mean all
of the issued and outstanding shares of common stock, par value $0.01 per
share, of ▇▇▇▇.
Section 1.15.00 MPG. "MPG" shall have the meaning set forth in the
Preamble.
Section 1.16. 00Material Adverse Effect. "Material Adverse Effect"
with respect to any Person shall mean any material adverse event, change or
effect on the business, assets, liabilities, results of operations or
financial condition of such Person and its Subsidiaries taken as a whole.
Section 1.17.00 Melham, Inc. "Melham, Inc." shall have the meaning
set forth in the Preamble.
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Section 1.18.00 Melham Purchase Agreement. "Melham Purchase
Agreement" shall mean the Stock Purchase Agreement, dated April 1, 1999, by
and among Cadmus Communications Corporation, Melham U.S., Inc., Purico (IOM)
Limited, and ▇▇▇▇ ▇. ▇▇▇▇.
Section 1.19.00 1997 Purchase Agreement. "1997 Purchase Agreement"
shall mean the Purchase Agreement, dated as of March 27, 1997, as amended, by
and among the Issuers and the Goldman Entities.
Section 1.20.00 1997 Notes. "1997 Notes" shall mean the 12% Senior
Subordinated Notes having an original principal amount of $25,000,000 due March
31, 2007, as amended, of the Issuers held of record and beneficially by the
Goldman Entities.
Section 1.21.00 Pay-Off Goldman Bridge Financing Notes. "Pay-Off
Goldman Bridge Financing Notes" shall mean $500,000 aggregate principal
amount of the Series C Notes.
Section 1.22.00 PCP. "PCP" shall have the meaning set forth in the
Preamble.
Section 1.23.00 Person. "Person" shall mean any individual,
corporation, partnership, limited liability company or other entity.
Section 1.24.00 Real Estate Releases. "Real Estate Releases" shall mean
releases, in form sufficient for recording the title records of the
jurisdictions in which the Real Property is located of the mortgages, deeds of
trust, and security interests encumbering the Real Property and listed on
Schedule 1.24 attached hereto.
Section 1.25.00 Real Property. "Real Property" shall mean the real
property owned or leased by the Issuers, together with the improvements located
thereon, including all appurtenant rights, claims and interests.
Section 1.26.00 Releases. "Releases" shall mean all releases, including
the termination and release agreement (the "Termination and Release Agreement")
executed on the date hereof by and among the Issuers and Goldman Entities,
Uniform Commercial Code termination statements, Real Estate Releases and other
documents and instruments as may be necessary to release any and all Liens
including the return of any Collateral to the party who pledged such collateral
to perfect a security interest.
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Section 1.27.00 Securities Act. "Securities Act" shall mean the
Securities Act of 1933, as amended.
Section 1.28.00 Science. "Science" shall have the meaning set forth
in the Preamble.
Section 1.29.00 Shares. "Shares" shall have the meaning set forth in
the Recitals.
Section 1.30.00 Subsidiaries. "Subsidiaries" means, as to any Person, all
corporations, limited liability companies, partnerships or other entities with
respect to which such Person owns or otherwise controls, directly or indirectly,
through one or more subsidiaries, corporations, limited liability companies,
partnerships, joint ventures or other business associations, shares representing
50% or more of the votes eligible to be cast in the election of directors,
managers or other applicable governors of each such entity.
Section 1.31.00 Transaction Documents. "Transaction Documents" shall mean
the documents set forth on Schedule 1.31, all of which shall be terminated upon
the Closing of the transactions contemplated by this Agreement in accordance
with Section 7.07.
ARTICLE II
PURCHASE AND SALE
Section 2.01.00 ▇▇▇▇'▇ Commitment to Deliver Pay-Off Amount. Prior to
Closing, the Goldman Entities will deliver, or cause to be delivered, to the
Issuers a pay-off letter (the "Goldman Pay-Off Letter") from each of the Goldman
Entities setting forth the $26,750,000 aggregate amount (the "Goldman Pay-Off
Amount"), including interest, prepayment penalties and other fees, to be paid as
of the Closing Date to satisfy all of the Issuers' obligations to each of the
Goldman Entities and their affiliates under the 1997 Notes. ▇▇▇▇ hereby agrees
to deliver, or to cause to be delivered, (i) the Goldman Pay-Off Amount less
$500,000, in cash by wire transfer to the Goldman Entities at the Closing in
accordance with the payment instructions set forth on Schedule 2.01 and
allocated to each of the Goldman Entities in accordance with the amounts set
forth on Schedule 2.01 and (ii) the Pay-Off Goldman Bridge Financing Notes,
allocated to each of the Goldman Entities in accordance with the amounts set
forth on Schedule 2.03.
Section 2.02.00 Commitment to Sell. Each of the Goldman Entities hereby
agrees that at the Closing, and upon all of the terms and subject to all of the
conditions of this Agreement, it shall sell, transfer, assign, convey and
deliver to ▇▇▇▇, by assignment, stock power or other appropriate instrument,
free and clear of all liens, encumbrances, charges, claims, restrictions,
pledges or security interests (other than those arising under the Securities Act
or any state's securities laws or pursuant to this Agreement), all of the
Shares.
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Section 2.03.00 Commitment to Purchase. ▇▇▇▇ hereby agrees that at the
Closing, and upon all of the terms and subject to all of the conditions of this
Agreement, it shall purchase from the Goldman Entities all of the Shares, and in
full and final payment therefor ▇▇▇▇ shall issue and deliver, the Goldman Bridge
Financing Notes to the Goldman Entities allocated to each of the Goldman
Entities in accordance with the amounts set forth on Schedule 2.03.
Section 2.04.00 Deliveries at Closing.
(a) By the Goldman Entities to ▇▇▇▇. At the Closing, the Goldman
Entities shall deliver, or cause to be delivered, to ▇▇▇▇ the following items,
each properly executed and dated as of the Closing Date: (i) certificates
representing the Shares together with duly executed stock powers therefor to
convey the Shares to ▇▇▇▇; (ii) the 1997 Notes; (iii) a statement, in the form
set forth in Treasury Regulations 1.1445.2(b)(2) and made under penalties of
perjury of each Goldman Entity, other than Offshore, that (among other things)
such Goldman Entity is not a foreign person; (iv) an IRS Form W-9 completed by
each Goldman Entity, other than Offshore; (v) from Offshore an IRS Form W-8 and
a certificate representing that Offshore is not a bank for purposes of Section
881(c) of the Internal Revenue Code of 1986, as amended ("the Code"), is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of ▇▇▇▇ and is not a controlled foreign corporation related to ▇▇▇▇ (within the
meaning of Section 864(d)(4) of the Code); and (vi) the Releases (provided,
however, that any Real Estate Release shall be deemed delivered for purposes of
satisfying this condition if the Goldman Entities shall have delivered to ▇▇▇▇'▇
title company documentation sufficient to cause the title company to insure
title to the applicable parcel of Real Property without exception to the matter
intended to be released by such Real Estate Release), including the return of
any Collateral held by the Goldman Entities to ▇▇▇▇.
(b) By ▇▇▇▇ to the Goldman Entities. At the Closing, ▇▇▇▇ shall
deliver to the Goldman Entities (i) the Goldman Pay-Off Amount less, $500,000,
in cash by wire transfer in accordance with the payment instructions and
allocated to each of the Goldman Entities in accordance with Section 2.01 and
(ii) fully executed (other than by the Goldman Entities party thereto) Credit
Documents, including, without limitation, the Goldman Bridge Financing Notes and
the Pay-Off Goldman Bridge Financing Notes being allocated to each of the
Goldman Entities in accordance with Sections 2.01 and 2.03.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE GOLDMAN ENTITIES
The Goldman Entities hereby jointly and severally represent and warrant to
▇▇▇▇ that the following representations and warranties are, as of the date
hereof, true and correct:
Section 3.01.00 Organization. Each of the Goldman Entities is a
partnership duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted.
Section 3.02.00 Enforceability. The execution, delivery and performance of
this Agreement and of all of the documents and instruments required hereby from
the Goldman Entities are within the partnership power of the Goldman Entities;
and the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby has been duly authorized in accordance with the
applicable partnership agreement, of each of the Goldman Entities, and no other
partnership proceedings on the part of any of the Goldman Entities is necessary
to authorize this Agreement or to consummate the transactions contemplated
herein. This Agreement is, and the other documents and instruments required
hereby to which the Goldman Entities are parties will be, when executed and
delivered by the Goldman Entities party thereto, the valid and binding
obligations of each of the Goldman Entities, enforceable against each of the
Goldman Entities in accordance with their respective terms subject to (i)
applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or other similar laws relating to creditors' rights
or creditors' remedies generally; and (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
Section 3.03.00 Consents and Approvals; No Violation or Conflict by the
Goldman Entities. No notice to, filing or registration with, and no permit,
authorization, consent or approval of, any governmental, regulatory or
self-regulatory agency is necessary or is required to be made or obtained by any
of the Goldman Entities in connection with the execution and delivery of this
Agreement by any of the Goldman Entities or for the consummation by each of the
Goldman Entities of the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each of the Goldman Entities and
the consummation of the transactions contemplated hereby do not and will not (a)
conflict with or result in any breach of any provision of the Certificate of
Limited Partnership, Partnership Agreement or organizational documents of such
Goldman Entity, (b) conflict with or violate any Law, judgment, order, writ,
injunction or decree binding on such Goldman Entity, or any of its respective
properties or assets, or (c) conflict with or 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, modification 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 such Goldman Entity is a party or by which such Goldman
Entity or any of its respective properties or assets may be bound (which would
adversely affect such Goldman Entity's ability to consummate the transaction
contemplated hereby).
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Section 3.04.00 Title to the Shares and 1997 Notes. The Goldman Entities
own of record and beneficially good and valid title to the number of shares, the
number or the aggregate principal amount, as applicable, of the Shares and the
1997 Notes set forth opposite each such Goldman Entity's name on Schedules 2.01
and 2.03 hereto, free and clear of any and all liens, encumbrances, charges,
claims, restrictions, pledges or security interests (other than those arising
under the Securities Act or any state's securities laws or pursuant to this
Agreement). Upon delivery of the Shares to ▇▇▇▇ at the Closing and upon ▇▇▇▇'▇
delivery of the Goldman Bridge Financing Notes in exchange therefor, good and
valid title to the Shares free and clear of all liens, encumbrances, charges,
claims, restrictions, pledges or security interests (other than those arising
under the Securities Act or any state's securities laws or pursuant to this
Agreement), will pass to ▇▇▇▇, except to the extent ▇▇▇▇ is a party to fraud or
has notice of an adverse claim. Upon payment of the Goldman Pay-Off Amount to
the Goldman Entities in the amounts set forth on Schedule 2.01 all of the
Issuers' obligations under and with respect to the 1997 Notes and the 1997
Purchase Agreement shall be satisfied in full and the Issuers shall have no
remaining obligations thereunder.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇
▇▇▇▇ represents and warrants to the Goldman Entities that the following
representations and warranties are, as of the date hereof, true and correct:
Section 4.01.00 Organization. ▇▇▇▇ is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Section 4.02.00 Authority; Enforceability. The execution, delivery and
performance of this Agreement and of all of the documents and instruments
required hereby from ▇▇▇▇ are within the corporate power of ▇▇▇▇. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of ▇▇▇▇,
and no other corporate proceedings on the part of ▇▇▇▇ are necessary to
authorize this Agreement or to consummate the transactions contemplated herein.
This Agreement has been, and all of the other documents and instruments required
hereby to which ▇▇▇▇ is a party will be, duly and validly executed and delivered
by ▇▇▇▇. This Agreement is, and the other documents and instruments required
hereby will be, when executed and delivered by the parties hereto, the valid and
binding obligations of ▇▇▇▇, enforceable against ▇▇▇▇ in accordance with their
respective terms subject to (i) applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws relating to creditors' rights or creditors' remedies generally; and (ii)
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
Section 4.03.00 Consents and Approvals; No Violation or Conflict by ▇▇▇▇.
No notice to, filing or registration with, and no permit, authorization, consent
or approval of, any governmental, regulatory or self-regulatory agency is
necessary or is required to be made or obtained by ▇▇▇▇ in connection with the
execution and delivery of this Agreement by ▇▇▇▇ or for the consummation by ▇▇▇▇
of the transactions contemplated hereby. The execution, delivery and performance
of this Agreement by ▇▇▇▇ and the consummation of the transactions contemplated
hereby do not and will not (a) conflict with or result in any breach of any
provision of the Articles of Incorporation or Bylaws of ▇▇▇▇, (b) conflict with
or violate any Law, judgment, order, writ, injunction or decree binding on ▇▇▇▇
or any of its properties or assets or (c) conflict with or violate any contract
or agreement to which ▇▇▇▇ or any of its affiliates is a party or by which it or
any of its affiliates is bound, the breach of which could have a Material
Adverse Effect on ▇▇▇▇ or would adversely affect ▇▇▇▇'▇ ability to perform its
obligations hereunder.
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ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
Section 5.01.00 Conditions Precedent to Obligations of ▇▇▇▇. The
obligations of ▇▇▇▇ to consummate the purchase of the Shares and to repay the
1997 Notes as contemplated herein are subject to the satisfaction or waiver at
or prior to the Effective Time of Closing of the following conditions precedent:
(a) each of the representations and warranties of the Goldman
Entities contained in Article III shall be true and correct in all material
respects when made and at and as of the Effective Time of Closing (except with
respect to such representations and warranties that address matters only as of a
particular date, which shall be true and correct in all material respects as of
such particular date), with the same force and effect as if those
representations and warranties had been made at and as of such time (with such
exceptions, if any, necessary to give effect to events or transactions expressly
permitted herein);
(b) the Goldman Entities shall have complied with the delivery
requirements of Section 2.04(a);
(c) the Goldman Entities shall, in all material respects, have
performed all other obligations and complied with all other covenants necessary
to be performed or complied with by them or it on or before the Effective Time
of Closing;
(d) ▇▇▇▇ shall have received from the Goldman Entities all
Releases, including the return of all Collateral pledged to the Goldman
Entities;
(e) the Transaction Documents shall have been terminated
pursuant to Section 7.07; and
(f) the transactions contemplated by the Melham Purchase Agreement
shall have been consummated simultaneously with the Closing hereunder.
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Section 5.02.00 Conditions Precedent to Obligations of the ▇▇▇▇▇▇▇
Entities. The obligation of the ▇▇▇▇▇▇▇ Entities to consummate the sale of the
Shares and deliver the 1997 Notes as contemplated herein is subject to the
satisfaction or waiver at or prior to the Effective Time of Closing of the
following conditions precedent:
(a) each of the representations and warranties of ▇▇▇▇ contained
in Article IV shall be true and correct in all material respects when made and
at and as of the Effective Time of Closing (except with respect to such
representations and warranties that address matters only as of a particular
date, which shall be true and correct in all material respects as of such
particular date), with the same force and effect as if those representations and
warranties had been made at and as of such time (with such exceptions, if any,
necessary to give effect to events or transactions expressly permitted herein);
(b) ▇▇▇▇ shall have compiled with the delivery requirements of
Section 2.04(b);
(c) ▇▇▇▇ shall, in all material respects, have performed all
obligations and complied with all covenants necessary to be performed or
complied with by it on or before the Effective Time of the Closing;
(d) each of the representations and warranties of ▇▇▇▇ contained
in each of the Credit Documents that are qualified by materiality shall be true
and correct when made and at and as of the time of closing of the transactions
contemplated by such Credit Document (except with respect to such
representations and warranties that address matters only as of a particular
date, which shall be true and correct as of such particular date), and each of
the representations and warranties of ▇▇▇▇ contained in each of the Credit
Documents that are not so qualified shall be true and correct in all material
respects when made and at and as of the time of closing of the transactions
contemplated by such Credit Document (except with respect to such
representations and warranties that address matters only as of a particular
date, which shall be true and correct in all material respects as of such
particular date), with the same force and effect as if those representations and
warranties had been made at and as of such time (with such exceptions, if any,
necessary to give effect to events or transactions expressly permitted by such
Credit Document);
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(e) the conditions precedent in each of the Credit Documents
shall have been satisfied or waived; and
(f) each of the Credit Documents shall have been executed and
delivered to the ▇▇▇▇▇▇▇ Entities.
ARTICLE VI
TERMINATION; AMENDMENT; WAIVER
Section 6.01.00 Termination. This Agreement may be terminated and the
transactions contemplated herein may be abandoned at any time prior to the
Effective Time of Closing:
(a) by mutual written consent of ▇▇▇▇ and the ▇▇▇▇▇▇▇ Entities;
(b) by ▇▇▇▇ at any time following ▇▇▇▇ becoming aware that the
▇▇▇▇▇▇▇ Entities have breached any representation, warranty or covenant
contained in this Agreement in any material respect, if ▇▇▇▇ has notified the
▇▇▇▇▇▇▇ Entities of the breach and the breach has continued without cure for a
period of thirty (30) days after the notice of breach; provided that ▇▇▇▇ has
not breached any representation, warranty or covenant contained in this
Agreement in any material respect;
(c) by the ▇▇▇▇▇▇▇ Entities at any time following the ▇▇▇▇▇▇▇
Entities' becoming aware that ▇▇▇▇ has breached any representation, warranty or
covenant contained in this Agreement in any material respect, if the ▇▇▇▇▇▇▇
Entities have notified ▇▇▇▇ of the breach and the breach has continued without
cure for a period of thirty (30) days after the notice of breach; provided that
the ▇▇▇▇▇▇▇ Entities have not breached any representation, warranty or covenant
contained in this Agreement in any material respect;
(d) by ▇▇▇▇ or the ▇▇▇▇▇▇▇ Entities, if the Effective Time of
Closing shall not have occurred on or before April 5, 1999; or
(e) by ▇▇▇▇ or the ▇▇▇▇▇▇▇ Entities, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated herein and such
order, decree, ruling or other action shall have become final and nonappealable.
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Section 6.02.00 Effect of Termination. If this Agreement is terminated
pursuant to Section 6.01 hereof, this Agreement shall forthwith become void and
have no effect, without any Liability on the part of any party or its directors,
officers or shareholders except as provided in this Section; provided, however,
that nothing contained in this Section 6.02 shall relieve any party from
Liability for any breach of this Agreement.
Section 6.03.00 Amendment. This Agreement may be amended by action taken
by ▇▇▇▇ and the ▇▇▇▇▇▇▇ Entities; provided that no amendment to this Agreement
shall be made except by an instrument in writing signed on behalf of all of the
parties.
Section 6.04.00 Extension; Waiver. At any time prior to the Effective Time
of Closing, the parties may (i) extend the time for the performance of any of
the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto or (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE VII
INDEMNITIES AND ADDITIONAL COVENANTS
Section 7.01.00 Survival. All representations, warranties, covenants, and
obligations in this Agreement, the Schedules, Exhibits, and any other
certificate or document delivered pursuant to this Agreement will survive the
Closing until the termination of the indemnification provisions contained in
Sections 7.02 and 7.03 hereof with respect to such representation, warranty or
covenant. ▇▇▇▇ acknowledges that the ▇▇▇▇▇▇▇ Entities have not made any
representations or warranties other than as set forth in this Agreement or the
schedules or exhibits attached hereto.
Section 7.02.00 The ▇▇▇▇▇▇▇ Entities' Indemnity.
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(a) Each of the ▇▇▇▇▇▇▇ Entities (collectively, the "▇▇▇▇▇▇▇
Indemnifying Parties") hereby jointly and severally indemnify and hold ▇▇▇▇ and
its affiliates, and their respective officers, directors and shareholders and
their successors and permitted assigns (each, a "▇▇▇▇ Indemnified Party"),
harmless from and against any and all losses, damages, costs, expenses,
liabilities, obligations, claims of any kind, including, without limitation,
reasonable attorneys' fees and other legal costs and expenses and diminution in
value, whether or not involving a third party claim (hereinafter referred to
collectively as "Losses"), that any ▇▇▇▇ Indemnified Party may at any time
suffer or incur, or become subject to, as a result of or in connection with: (i)
any breach or inaccuracy of any of the representations and warranties made by
the ▇▇▇▇▇▇▇ Entities in or pursuant to this Agreement; and (ii) any failure of
the ▇▇▇▇▇▇▇ Entities to carry out, perform, satisfy and discharge any of their
covenants, agreements, undertakings, liabilities or obligations under this
Agreement or under any of the documents and instruments delivered by the ▇▇▇▇▇▇▇
Entities pursuant to this Agreement; provided, however, that the ▇▇▇▇▇▇▇
Indemnifying Parties shall not be required to indemnify and hold the ▇▇▇▇
Indemnified Parties harmless pursuant to Section 7.02(a)(i) or (ii) unless such
right is asserted (whether or not the Losses have actually been incurred) by
written notice to the ▇▇▇▇▇▇▇ Indemnifying Parties within 18 months of the
Effective Time describing with specificity the facts giving rise to the asserted
right (unless such right is asserted pursuant to the representations and
warranties set forth in Section 3.04, in which event there shall be no time
limitation on where such right is asserted); provided, further, that no ▇▇▇▇
Indemnified Party shall be entitled to recover any Losses arising from a breach
of the representations and warranties set forth in Section 3.04 hereof to the
extent such breach arises directly or indirectly from the failure of any of the
representations and warranties made by ▇▇▇▇ in the 1997 Purchase Agreement to be
true and correct.
(b) The amounts for which the ▇▇▇▇▇▇▇ Indemnifying Parties shall
be liable under Section 7.02(a) of this Agreement shall be net of any insurance
proceeds received by the ▇▇▇▇ Indemnified Parties in connection with the facts
and circumstances giving rise to the right of indemnification. In addition, such
amounts shall be (i) net of any federal or state income tax benefit realized or
the then-present value (based on a discount rate of 6%) of any such income tax
benefit to be realized by the ▇▇▇▇ Indemnified Parties by reason of the facts
and circumstances giving rise to the indemnification, and (ii) increased by the
amount of any federal or state income tax required to be paid by the ▇▇▇▇
Indemnified Parties as a result of the accrual or receipt of the indemnification
payment (including any amount payable pursuant to this clause (ii)). For
purposes of the preceding sentence, the amount of any state income tax benefit
or cost shall take into account the federal income tax effect of such benefit or
cost.
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(c) In the event a claim against a ▇▇▇▇ Indemnified Party arises
that is covered by the indemnity provisions of Section 7.02(a) of this
Agreement, notice shall be given promptly by one of the ▇▇▇▇ Indemnified Parties
to the ▇▇▇▇▇▇▇ Indemnifying Parties. Provided that the ▇▇▇▇▇▇▇ Indemnifying
Parties admit in writing to the party seeking indemnification that such claim is
covered by the indemnity provisions of Section 7.02(a) hereof, the ▇▇▇▇▇▇▇
Indemnifying Parties shall have the right to contest and defend by all
appropriate legal proceedings such claim and to control all settlements (unless
the party seeking indemnification agrees to assume the cost of settlement and to
forgo such indemnity) and to select lead counsel to defend any and all such
claims at the sole cost and expense of the ▇▇▇▇▇▇▇ Indemnifying Parties;
provided, however, that the ▇▇▇▇▇▇▇ Indemnifying Parties may not effect any
settlement that could result in any cost, expense or liability to, or have any
Material Adverse Effect upon any ▇▇▇▇ Indemnified Party unless such party
consents in writing to such settlement and the ▇▇▇▇▇▇▇ Indemnifying Parties
agree to indemnify such party therefor. In the event the ▇▇▇▇▇▇▇ Indemnifying
Parties do not admit in writing to a party seeking indemnification that such
claim is covered by the indemnity provisions of Section 7.02(a) hereof, the ▇▇▇▇
Indemnified Party shall take such actions as it deems necessary to defend such
claim; provided, however, that the ▇▇▇▇ Indemnified Parties may not effect any
settlement that could result in any cost, expense, liability to, or have any
Material Adverse Effect upon, any ▇▇▇▇▇▇▇ Indemnifying Party without consent of
such ▇▇▇▇▇▇▇ Indemnifying Party, which consent shall not be unreasonably
withheld and which consent or objection thereto must be provided in a timely
manner as the circumstances dictate and in any event within ten (10) business
days of such request. The party seeking indemnification may select counsel to
participate in any defense, in which event such counsel shall be at the sole
cost and expense of such party. In connection with any such claim, action or
proceeding, the parties shall cooperate with each other and provide each other
with access to relevant books and records in their possession.
Section 7.03.00 ▇▇▇▇'▇ Indemnity.
(a) Each of Cadmus Communications Corporation and ▇▇▇▇
(collectively, the "▇▇▇▇ Indemnifying Parties") hereby indemnifies and holds the
▇▇▇▇▇▇▇ Entities and their partners, officers, directors and shareholders and
their successors and permitted assigns ("▇▇▇▇▇▇▇ Indemnified Parties") harmless
from and against, any and all Losses that the ▇▇▇▇▇▇▇ Indemnified Parties may at
any time suffer or incur, or become subject to, as a result of or in connection
with: (i) any breach or inaccuracy of any of the representations and warranties
made by ▇▇▇▇ in or pursuant to this Agreement and (ii) any failure by ▇▇▇▇ to
carry out, perform, satisfy and discharge any of its covenants, agreements,
undertakings, liabilities or obligations under this Agreement or under any of
the documents and instruments delivered by ▇▇▇▇; provided, however, that the
▇▇▇▇ Indemnifying Parties shall not be required to indemnify and hold the
▇▇▇▇▇▇▇ Indemnified Parties harmless pursuant to Section 7.03(a)(i) unless such
right is asserted (whether or not the Losses have actually been incurred) by
written notice to the ▇▇▇▇ Indemnifying Parties within 18 months of the
Effective Time of Closing describing with specificity the facts giving rise to
the asserted right.
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(b) The amounts for which the ▇▇▇▇ Indemnifying Parties shall be
liable under Section 7.03(a) of this Agreement shall be net of any insurance
proceeds received by the ▇▇▇▇▇▇▇ Indemnified Parties in connection with the
facts and circumstances giving rise to the right of indemnification. In
addition, such amounts shall be (i) net of any federal or state income tax
benefit realized or the then-present value (based on a discount rate of 6%) of
any such income tax benefit to be realized by the ▇▇▇▇▇▇▇ Indemnified Parties by
reason of the facts and circumstances giving rise to the indemnification, and
(ii) increased by the amount of any federal or state income tax required to be
paid by the ▇▇▇▇▇▇▇ Indemnified Parties as a result of the accrual or receipt of
the indemnification payment (including any amount payable pursuant to this
clause (ii)). For purposes of the preceding sentence, the amount of any state
income tax benefit or cost shall take into account the federal income tax effect
of such benefit or cost.
(c) In the event a claim against the ▇▇▇▇▇▇▇ Indemnified Parties
arises that is covered by the indemnity provisions of Section 7.03(a) of this
Agreement, notice shall be given promptly by the ▇▇▇▇▇▇▇ Indemnified Parties to
the ▇▇▇▇ Indemnifying Parties which notice shall designate one of the ▇▇▇▇▇▇▇
Indemnified Parties as representative for all ▇▇▇▇▇▇▇ Indemnified Parties for
purposes of this Section 7.03 (the "▇▇▇▇▇▇▇ Representative"). The ▇▇▇▇▇▇▇
Representative shall be authorized to act on behalf of, and to bind, all the
▇▇▇▇▇▇▇ Indemnified Parties, the ▇▇▇▇ Indemnifying Parties shall be entitled to
rely on the ▇▇▇▇▇▇▇ Representative without any investigation. Provided that the
▇▇▇▇ Indemnifying Parties admit in writing to the ▇▇▇▇▇▇▇ Representative that
such claim is covered by the indemnity provisions of Section 7.03(a) hereof, the
▇▇▇▇ Indemnifying Parties shall have the right to contest and defend by all
appropriate legal proceedings such claim and to control all settlements (unless
the ▇▇▇▇▇▇▇ Representative agrees to assume the cost of settlement and to forgo
such indemnity) and to select lead counsel to defend any and all such claims at
the sole cost and expense of the ▇▇▇▇ Indemnifying Parties; provided, however,
that the ▇▇▇▇ Indemnifying Parties may not effect any settlement that could
result in any cost, expense or liability to, or have any Material Adverse Effect
upon, the ▇▇▇▇▇▇▇ Indemnified Parties unless the ▇▇▇▇▇▇▇ Representative consents
in writing to such settlement and the ▇▇▇▇ Indemnifying Parties agree to
indemnify the ▇▇▇▇▇▇▇ Indemnified Parties therefor. In the event the ▇▇▇▇
Indemnifying Parties do not admit in writing to a party seeking indemnification
that such claim is covered by the indemnity provisions of Section 7.03(a)
hereof, the ▇▇▇▇▇▇▇ Representative shall take such actions as it deems necessary
to defend such claim; provided, however, that the ▇▇▇▇▇▇▇ Representative and
▇▇▇▇▇▇▇ Indemnified Parties may not effect any settlement that could result in
any cost, expense, liability to, or have any Material Adverse Effect upon any
▇▇▇▇ Indemnifying Party without consent of such ▇▇▇▇ Indemnifying Party, which
consent shall not be unreasonably withheld and which consent or objection
thereto must be provided in a timely manner as the circumstances dictate and in
any event within ten (10) business days of request. The ▇▇▇▇▇▇▇ Representative
may select counsel to participate in any defense, in which event the ▇▇▇▇▇▇▇
Indemnified Parties' counsel shall be at the sole cost and expense of the
▇▇▇▇▇▇▇ Indemnified Parties. In connection with any such claim, action or
proceeding, the parties shall cooperate with each other and provide each other
with access to relevant books and records in their possession.
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Section 7.04.00 Sole and Exclusive Remedy. The provisions of
indemnification set forth in this Article VII shall constitute the sole and
exclusive remedy of the ▇▇▇▇ Indemnified Parties and the ▇▇▇▇▇▇▇ Indemnified
Parties for any Losses arising under this Agreement sustained by such party
except with respect to (a) Losses sustained by any ▇▇▇▇ Indemnified Party as a
result of or in connection with (i) fraud under any applicable Law, or (ii) any
intentional misrepresentation in making any representations or (b) Losses
sustained by any ▇▇▇▇▇▇▇ Indemnified Party as a result of or in connection with
(i) fraud under any applicable Law, or (ii) any intentional misrepresentation in
making any representations.
Section 7.05.00 Further Assurances. In case at any time after the Closing
Date any further action is necessary or desirable to carry out the purposes of
this Agreement, each of the parties to this Agreement will take, without
additional consideration, such further action (including the execution and
delivery of such further instruments and documents and the grant of access to
any individuals, premises, books or records) as any other party reasonably may
request.
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Section 7.06.00 Mutual Release.
(a) Except as otherwise provided in this Section 7.06, effective
upon the Closing and receipt of the amounts set forth in Schedules 2.01 and
2.03, each of the ▇▇▇▇▇▇▇ Entities, on behalf of itself and each of its
Affiliates hereby releases and forever holds harmless Melham Holdings, Inc.,
Melham, the Issuers and their Subsidiaries and their Affiliates, directors,
officers and agents (the "Released Parties") from and against all obligations,
actions, causes of action, claims, demands, damages, costs, expenses and
liabilities whatsoever, whether known or unknown, liquidated or contingent, at
law or in equity (collectively, "Claims"), which such ▇▇▇▇▇▇▇ Entity ever had,
now have or which they or their successors, assigns, heirs, executors and
administrators hereafter can, shall or may have against the Released Parties or
their successors or assigns with respect to all rights, obligations and other
matters arising out of or related to the Transaction Documents, including
without limitation (i) any obligations of the Released Parties arising under any
Transaction Document, and (ii) any rights of such ▇▇▇▇▇▇▇ Entity to any capital
stock or other securities of the Released Parties (or any security convertible
or exchangeable for, or any options, warrants or rights to purchase, such
capital stock or securities (and any claims arising therefrom); provided,
however, that nothing in this sentence shall release any Claims which such
▇▇▇▇▇▇▇ Entity ever had, now have or which they or their successors, assigns,
heirs, executors and administrators hereafter can, shall or may have against the
Released Parties or their successors or assigns under this Agreement or any
agreement, certificate or instrument executed and delivered in connection with
this Agreement; and provided, further, that nothing in this Section 7.06 shall
be deemed to release any obligations of the Released Parties under the Credit
Documents.
(b) Effective upon the Closing, each of Melham Holdings, Inc.,
Melham and the Issuers, on behalf of themselves and each of their Subsidiaries
and Affiliates (the "▇▇▇▇ Group") hereby releases and forever holds harmless the
▇▇▇▇▇▇▇ Entities and their Subsidiaries, Affiliates, partners, directors,
officers and agents (the "▇▇▇▇▇▇▇ Released Parties") from and against all
Claims, which the ▇▇▇▇ Group ever had, now have or which they or their
successors, assigns, heirs, executors and administrators hereafter can, shall or
may have against the ▇▇▇▇▇▇▇ Released Parties or their successors or assigns
with respect to all rights, obligations and other matters arising out of or
related to the Transaction Documents, including without limitation (i) any
obligations of the ▇▇▇▇▇▇▇ Released Parties arising under any Transaction
Document, and (ii) any rights of the ▇▇▇▇ Group to any capital stock or other
securities of the ▇▇▇▇▇▇▇ Released Parties (or any security convertible or
exchangeable for, or any options, warrants or rights to purchase, such capital
stock or securities (and any claims arising therefrom); provided, however, that
nothing in this sentence shall release any Claims which the ▇▇▇▇ Group ever had,
now have or which they or their successors, assigns, heirs, executors and
administrators hereafter can, shall or may have against the ▇▇▇▇▇▇▇ Released
Parties or their successors or assigns under this Agreement or any agreement,
certificate or instrument executed and delivered in connection with this
Agreement; and provided further, that nothing in this Section 7.06 shall be
deemed to release any obligations of the ▇▇▇▇▇▇▇ Released Parties under the
Indenture.
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Section 7.07. 00 Termination of Transaction Documents. Effective upon
consummation of the Closing on the Closing Date and receipt of the ▇▇▇▇▇▇▇
Pay-Off Amount, as allocated in accordance with Schedule 2.01, and the ▇▇▇▇▇▇▇
Bridge Financing Notes, as allocated in accordance with Schedule 2.03 by the
▇▇▇▇▇▇▇ Entities and the receipt of the Shares and the 1997 Notes by ▇▇▇▇, each
of the parties hereto agrees that each of the Transaction Documents is
terminated and of no further force and effect. Melham Holdings, Inc., Melham and
the Issuers, on the one hand, and the ▇▇▇▇▇▇▇ Entities, on the other hand, each
agree to take any and all further action that is necessary or desirable to carry
out the purposes of this Section 7.07, including, without additional
consideration, such further action (including the execution and delivery of such
further instruments and documents and the grant of access to any individuals,
premises, books or records) as any other party reasonably may request in order
to evidence the termination of the Transaction Documents and the delivery of the
Releases.
ARTICLE VIII
MISCELLANEOUS
Section 8.01.00 Entire Agreement; Assignment. This Agreement, together
with any Schedules and Exhibits and the Credit Documents (a) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof
with the exception of the ▇▇▇▇▇▇▇ Pay-Off Letter and the Termination and Release
Agreement, and (b) shall not be assigned by operation of law or otherwise.
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Section 8.02.00 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or, if mailed, ten (10) business days after
being mailed by United States first-class, certified or registered mail, postage
prepaid, or, if sent by overnight delivery by a nationally recognized courier
such as DHL, Federal Express or United Parcel Service, two (2) business days
after deposit with such courier, or, if sent by telecopy, upon confirmation of
receipt, to the other party at the following address (or at such other address
as shall be given in writing by any party to the other):
If to the Issuers:
▇▇▇▇ Printing Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Hunton & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: T. ▇▇▇▇▇▇ ▇▇▇▇▇, III
If to one of the
▇▇▇▇▇▇▇ Entities: to such ▇▇▇▇▇▇▇ Entity at the address
specified for such communications in
Schedule 2.03,
With a copy to: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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Section 8.03.00 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflicts of laws principles or rules.
Section 8.04.00 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 8.05.00 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, their respective
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 8.06.00 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 8.07.00 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
Section 8.08.00 Fees and Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses, whether or not the transactions contemplated herein are consummated.
Section 8.09.00 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effectuate 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 extent
possible.
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Section 8.10.00 No Reliance. No third party is entitled to rely on any of
the representations, warranties and agreements contained in this Agreement.
Melham, the Issuers and the ▇▇▇▇▇▇▇ Entities assume no Liability to any third
party because of any reliance on the representations, warranties and agreements
of ▇▇▇▇ and the ▇▇▇▇▇▇▇ Entities contained in this Agreement.
Section 8.11.00 Consent to Jurisdiction. Melham, the Issuers and the
▇▇▇▇▇▇▇ Entities each irrevocably submits to the exclusive jurisdiction of (a)
the state courts of the State of New York and (b) the United States District
Court for the Southern District of New York, for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transactions
contemplated hereby. Each of the parties hereto agree that process may be served
in connection with any matter in New York in accordance with the provisions of
Section 8.02 hereof.
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IN WITNESS WHEREOF, the parties have caused this Stock and Note Purchase
Agreement to be duly executed as of the day and year first above written.
MELHAM, INC.
By:__________________________________________
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
Title: Secretary
ISSUERS:
▇▇▇▇ PRINTING COMPANY
By:____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Executive Officer and
Treasurer
▇▇▇▇ PRINTING GROUP, INC.
By:__________________________________________
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
Title: Vice President, Administration,
General Counsel and Secretary
SCIENCE CRAFTSMAN INCORPORATED
By:__________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
PORT CITY PRESS, INC.
By: __________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Treasurer
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THE GOLDMAN ENTITIES:
G.S. MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
General Partner
By: GS Mezzanine Advisors, Inc.,
General Partner
By:__________________________________________
Name:
Title:
G.S. MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors (Cayman), L.P.,
General Partner
By: GS Mezzanine Advisors, Inc.,
General Partner
By:__________________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, L.P., as successor
in interest to THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, L.P.
By: Stone Street Asset Corp.,
General Partner
By:__________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, L.P., as successor
in interest to THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, L.P.
By: Stone Street Asset Corp.,
General Partner
By: __________________________________________
Name:
Title:
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WITH RESPECT SOLELY TO EFFECTUATING
SECTION 7.03:
CADMUS COMMUNICATIONS CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Finance and Administration
WITH RESPECT SOLELY TO EFFECTUATING
SECTION 7.07:
__________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇
WITH RESPECT SOLELY TO EFFECTUATING
SECTION 7.07:
MELHAM HOLDINGS INC.
By:_______________________________________
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
Title: Secretary
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