1
EXHIBIT 10.4
EQUITY CONTRIBUTION AGREEMENT
This EQUITY CONTRIBUTION AGREEMENT (this "Agreement"), dated as of October
7, 1997, is by and among MS Acquisition Limited, a Texas limited partnership,
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx (each, a
"Stockholder", and collectively, the "Stockholders"), Marketing Specialists
Sales Company, a Texas corporation ("MSSC"), and Richmont Marketing Specialists
Inc., a Delaware corporation ("Holding").
Introductory Statements
The Stockholders own all of the issued and outstanding shares of common
stock, par value $.01 per share, of MSSC (the "MSSC Common").
The Stockholders desire to exchange their shares of MSSC Common for a like
number of shares of common stock, par value $.01 per share, of Holding (the
"Holding Common"), and Holding desires to acquire all of the issued and
outstanding shares of MSSC Common from the Stockholders in exchange for the
issuance of a like number of shares of Holding Common, all pursuant to the terms
of this Agreement.
The Stockholders and Holding desire to enter into a new Company and
Stockholders Agreement in order to set forth certain material terms governing
their relationship as stockholders of Holding.
MS Acquisition Limited ("MS Acquisition") desires to continue to receive
the benefits of certain registration rights regarding its shares of MSSC Common
after the exchange for Holding Common and, therefore, MS Acquisition desires to
enter into a new Registration Rights Agreement providing for certain
registration rights in connection with its shares of Holding Common.
Accordingly, for and in consideration of the foregoing and the mutual
agreements, representations, warranties, covenants and conditions set forth in
this Agreement, and other good, valid and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement,
intending to be legally bound, hereby agree as follows:
ARTICLE I
EQUITY CONTRIBUTION AGREEMENT
2
EXCHANGE OF THE SHARES
1.1 Exchange. Upon the terms and subject to the conditions set forth in
this Agreement, Holding hereby agrees to issue to each Stockholder on the date
first set forth above, free and clear of all liens, security interests, pledges,
charges, claims, options, rights, demands and restrictions of every kind,
character and description whatsoever (collectively, "Encumbrances") imposed by
Holding the number of shares of Holding Common set forth opposite such
Stockholder's name on Schedule 1.1 hereto, and each Stockholder agrees to
assign, transfer and deliver to Holding on such date, the number of shares of
MSSC Common set forth opposite such Stockholder's name on Schedule 1.1 hereto.
1.2 Date and Place of Closing. Upon the terms set forth in this Agreement,
the exchange of shares of MSSC Common and Holding Common provided for herein
(the "Closing") shall be consummated at a closing to be held at the offices of
MSSC at 10:00 a.m., local time, on the date hereof (the "Closing Date").
1.3 Deliveries at Closing. Subject to the conditions set forth in this
Agreement, at Closing,
(a) Holding shall deliver to each Stockholder:
(i) a certificate, in the name of such Stockholder,
evidencing and representing the number of shares of
Holding Common set forth opposite such Stockholders'
name on Schedule 1.1 hereto; and
(ii) all other previously undelivered documents, instruments
and writings required to be delivered by Holding at or
prior to the Closing pursuant to this Agreement or
otherwise required in connection herewith.
(b) Each Stockholder shall deliver to Holding:
(i) a certificate evidencing and representing shares of MSSC
Common accompanied by a stock power duly executed, and
otherwise in form acceptable for transfer; and
(ii) all other previously undelivered documents, instruments
and writings required to be delivered by the
Stockholders at or prior to the Closing pursuant to this
Agreement or otherwise required in connection herewith.
1.4 Securities Laws Exemption. Each Stockholder acknowledges that as of
the Closing Date the Holding Common will not have been registered under the
Securities Act of 1933, as
EQUITY CONTRIBUTION AGREEMENT
3
amended (the "Securities Act"), or any state securities or blue sky laws. Each
Stockholder represents that it is acquiring the Holding Common as principal for
its own account, for investment only, and not with a view to the resale or
distribution thereof except in accordance with applicable securities laws.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF HOLDING
Holding hereby represents and warrants to the Stockholders as follows:
2.1 Organization and Qualification. Holding is (i) a corporation validly
existing and in good standing under the laws of the State of Delaware, (ii) duly
qualified to do business as a foreign corporation and in good standing in each
jurisdiction in which the character of the properties and assets now owned or
leased by it or the nature of the business transacted by it requires it to be so
qualified. Holding has the corporate power and authority to carry on its
business as now being conducted.
2.2 Authority. Holding has all requisite power and authority (corporate
and otherwise) to enter into, execute and deliver this Agreement and perform its
obligations hereunder. This Agreement has been duly executed and delivered by
Holding and is a valid and binding obligation of Holding enforceable against
Holding in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, or other similar laws affecting creditors' rights generally or
general principals of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by Holding will not result in a violation or breach of or
constitute a default under any term or provision of its Certificate of
Incorporation or Bylaws.
2.3 Capitalization of Holding. Holding is authorized to issue 1,000,000
shares of Holding Common. Upon delivery to the Stockholders, all of the shares
of Holding Common will be validly issued, fully paid and nonassessable. The
Holding Common will be issued free and clear of any Encumbrance imposed by
Holding. Upon issuance hereunder, the shares of Holding Common to be issued to
the Stockholders will represent all of the issued and outstanding capital stock
of Holding. Except as set forth in the Stockholders Agreement (as defined
herein), there are no outstanding options, warrants or other rights to acquire
from Holding any shares of capital stock of Holding; furthermore, there are no
outstanding securities authorized, granted or issued by Holding that are
convertible into or exchangeable for shares of Holding's capital stock and there
are no phantom stock rights, stock appreciation rights or similar rights
regarding Holding's capital stock.
2.4 No Conflicts. The execution, delivery and performance of this
Agreement by Holding and consummation of the transactions contemplated hereby
will not:
EQUITY CONTRIBUTION AGREEMENT
4
(a) result in the creation or imposition of any Encumbrance
imposed by Holding upon the Holding Common, with or without
the giving of notice and/or the passage of time, or
(b) violate, conflict with, effect acceleration of, or result in
termination, cancellation or modification of, or constitute a
default under (i) any contract, agreement or other instrument
to which Holding is a party or by which it or its assets is
bound or (ii) any note, bond, mortgage, indenture, deed of
trust, license, lease, contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character
to which Holding is a party or by which Holding may be bound
or affected or to which any of its respective assets may be
subject, or
(c) violate any statute or law or any judgment, decree, order,
writ, injunction, regulation or rule of any court or local,
state or federal governmental or regulatory authority.
2.5 Consents and Approvals. Other than as may be required pursuant to the
terms of the Credit Agreement (the "Credit Agreement") dated as of February 12,
1997, as amended, between NationsBank of Texas, N.A. ("NationsBank") and MSSC,
Holding is not required to obtain, transfer or cause to be transferred any
consent, approval, license, permit or authorization, or make any declaration,
filing or registration with, any third party or any public body or authority in
connection with (a) the execution and delivery by Holding of this Agreement or
(b) the consummation of the transactions contemplated hereby.
2.6 No Commission. Holding has not employed any broker, agent or finder in
connection with any transaction contemplated by this Agreement. Holding hereby
indemnifies the Stockholders against any liability for a broker's commission,
finder's fee or any other fee of any description incurred by Holding with
respect to any transaction contemplated by this Agreement.
2.7 Accuracy of Disclosure. Holding has no knowledge of any information
contained in this Agreement that contains an untrue statement of material fact
or omits to state any material fact required to be stated in order to make the
statements made herein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Holding as follows:
EQUITY CONTRIBUTION AGREEMENT
5
3.1 Authority. The Stockholder has all requisite power and authority to
enter into, execute and deliver this Agreement and perform his or its
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder and is a valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, or other similar laws affecting creditors'
rights generally or general principals of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). With respect
to MS Acquisition, MS Acquisition is a limited partnership duly organized and
validly existing under the laws of the State of Texas, and the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by its general partner.
3.2 Consents and Approvals. Other than as may be required pursuant to the
terms of the Credit Agreement, the Stockholder is not required to obtain,
transfer or cause to be transferred any consent, approval, license, permit or
authorization, or make any declaration, filing or registration with, any third
party or any public body or authority in connection with (a) the execution and
delivery by such Stockholder of this Agreement or (b) the consummation of the
transactions contemplated hereby.
3.3 Title and Encumbrances to MSSC Common. The Stockholder owns the number
of shares of MSSC Common set forth opposite such Stockholder's name on Schedule
1.1 hereto, beneficially and of record, free and clear of any Encumbrance except
for (i) Encumbrances imposed pursuant to the Credit Agreement, and (ii)
Encumbrances imposed pursuant to that certain Amended and Restated Company and
Shareholders Agreement among MS Acquisition, MSSC, and the Stockholders (which
agreement will be terminated upon the execution and delivery of the Stockholders
Agreement). Upon the consummation of the transactions contemplated by this
Agreement, Holding will acquire good, valid and marketable title to the shares
of MSSC Common held by the Stockholder, free and clear of any Encumbrances
imposed by MSSC. Except as set forth on Schedule 3.3, there are no outstanding
options, warrants or other rights to acquire any shares of the MSSC Common from
the Stockholders.
3.4 Capitalization of MSSC. MSSC is authorized to issue 10,000,000 shares
of MSSC Common. The total number of shares of MSSC Common issued and outstanding
is 137,635, and the total number of shares of common stock of MSSC issued and
held in treasury is 12,445 (the "MSSC Treasury Stock"). The MSSC Treasury Stock
is held by MSSC free and clear of any Encumbrance except for (i) a first lien
security interest held by Xxxxxxx Xxxxxxx in 9,333 shares of MSSC Treasury Stock
and a second lien security interest in 3,112 shares of MSSC Treasury Stock (the
shares subject to such second lien security interest being hereinafter referred
to as the "Xxxxxx Pledged Shares") pursuant to a Pledge Agreement dated June 15,
1995, (ii) a security interest in the Xxxxxx Pledged Shares by virtue of a
Collateral Assignment Agreement dated September 27, 1994 by Xxxxxxx Xxxxxxx in
favor of Xxxxxx Xxxxxx, (iii) a potential security interest held by Xxxxxxxx X.
Xxxxx in 6,700 shares in Marketing Specialists Corporation, a Texas corporation,
which was merged into MSSC in 1990, the pledge creating such security interest
being referenced only in a Promissory Note dated
EQUITY CONTRIBUTION AGREEMENT
6
__________, 1993, and (iv) a potential security interest held by Xxxxxxx X.
Xxxxxxxx in 100 shares in Marketing Specialists Sales Company, a Florida
corporation, which was merged into MSSC in 1996.
3.5 Accredited Investor Status. Each Stockholder is an "Accredited
Investor", as such term is defined by Rule 501 under the Securities Act. The
Stockholder has such knowledge and experience in financial and business matters
that the Stockholder is capable of evaluating the merits and risks of this
transaction and of an investment in Holding.
3.6 Shares Not Registered, Indefinite Holding. The Stockholder has been
advised by Holding, and understands, that he or it must bear the economic risk
of an investment in the Holding Common for an indefinite period of time because
the Holding Common has not been registered under the Securities Act. Therefore,
the Holding Common must be held by such Stockholder unless the Holding Common is
subsequently registered under the Securities Act or an exemption from such
registration is available for the transfer of the Holding Common. Such
Stockholder is familiar with Rule 144 of the Securities Act and the restrictions
and requirements thereunder as they relate to a public resale.
3.7 Acquisition for Own Account. The Stockholder represents that the
Holding Common is being acquired solely for such Stockholder's own account for
investment and not with a view toward, or for resale in connection with, any
"distribution" (as that term is used in the Securities Act and the Rules and
Regulations thereunder) of all or any portion thereof.
3.8 Legend on Certificates. The Stockholder further understands that the
certificates evidencing the Holding Common shall bear, until such time as the
shares shall have been registered under the Securities Act or shall have been
transferred in accordance with such an opinion of counsel, the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF
1933, OR ANY APPLICABLE STATE SECURITIES LAWS, AND ANY SALE, TRANSFER,
PLEDGE OR OTHER TRANSFER OR DISPOSITION THEREOF MAY BE MADE ONLY (I) IN A
TRANSACTION REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR (II) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE
AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO SUCH EFFECT
REASONABLY SATISFACTORY TO IT. IN ADDITION, ANY SALE, ASSIGNMENT,
TRANSFER, PLEDGE OR OTHER TRANSFER OR DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY AND SUBJECT TO THE TERMS
AND PROVISIONS OF A COMPANY AND STOCKHOLDERS AGREEMENT DATED AS OF OCTOBER
7, 1997, BY AND AMONG THE COMPANY AND CERTAIN STOCKHOLDERS THEREOF AND A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF OCTOBER 7, 1997,
EQUITY CONTRIBUTION AGREEMENT
7
BETWEEN THE COMPANY AND MS ACQUISITION LIMITED. AMONG OTHER THINGS, SUCH
COMPANY AND STOCKHOLDERS AGREEMENT INCLUDES A BINDING RIGHT OF FIRST
REFUSAL, VARIOUS RESTRICTIONS ON VOTING, TRANSFER AND CERTAIN OTHER
PROVISIONS INCLUDING, WITHOUT LIMITATION, SUBSTANTIAL ENCUMBRANCES AND
RESTRICTIONS ON ALIENABILITY OF SHARES. THE COMPANY WILL FURNISH A COPY OF
THE COMPANY AND STOCKHOLDERS AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE ON
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED
OFFICE.
3.9 No Community Property Interest. None of the shares of Capital Stock to
be Transferred by Xxxxxxxx or Watt pursuant to any transaction contemplated
hereby are subject to any community property interest or other proprietary
interest to which any spouse, whether former or present, of either Xxxxxxxx or
Watt, is entitled.
ARTICLE IV
INDEMNIFICATION
4.1 Survival of Representations. Each representation and warranty made
hereunder shall survive any investigation made by or on behalf of any party
hereto and shall survive the Closing and the consummation of each and any
transaction in connection with this Agreement hereunder for the period of 18
months; provided, however, that the representations and warranties set forth in
Sections 3.1 and 3.3 shall survive indefinitely. The expiration of any survival
period shall not bar or otherwise affect the subsequent revival and survival of
the representations and warranties made pursuant to or in connection with this
Agreement in accordance with the immediately preceding sentence. Each covenant
and agreement shall survive any investigation made by or on behalf of any party
hereto and shall survive the Closing hereunder.
4.2 Holding's Indemnification Obligations. Subject to the terms and
conditions of this Article IV, Holding agrees to indemnify, defend and hold
harmless each Stockholder and their respective affiliates (the "Stockholders'
Group") from and against any and all demands, claims, actions or causes of
action, penalties, losses, damages, liabilities, costs or expenses including,
without limitation, interest, and reasonable attorneys' fees and expenses
(collectively "Damages") asserted against, resulting to, imposed upon or
incurred by the Stockholders' Group or any member thereof, whether directly by
such member or indirectly through his or its proportionate ownership of the
Company, by reason of or resulting from a breach or multiple breaches of any
representation, warranty or agreement made by Holding herein or any facts or
circumstances constituting such a breach (collectively, "Stockholders' Claims").
4.3 Stockholders' Indemnification Obligations. Subject to the terms and
conditions of this Article IV, each Stockholder agrees to severally, and not
jointly, indemnify, defend and hold harmless
EQUITY CONTRIBUTION AGREEMENT
8
Holdings and its stockholders, directors, officers and affiliates (other than
such Stockholder) (the "Holdings Group") from and against any Damages, asserted
against, resulting to, imposed upon or incurred by the Holdings Group or any
member thereof, whether directly by such member or indirectly through its
proportionate ownership of Holding, by reason of or resulting from a breach or
multiple breaches of any representation, warranty or agreement of the
Stockholders contained in or made pursuant to this Agreement or any facts or
circumstances constituting such a breach (collectively, "Holdings Claims").
4.4 Conditions of Indemnification. Prior to any indemnification, the
obligations and liabilities of the Stockholders or Holding with respect to
Holdings Claims or Stockholders' Claims (collectively, "Claims") shall be
subject to the following terms and conditions:
(a) The party entitled to be indemnified (the "Indemnitee") will
be required to give the indemnifying party (the "Indemnitor")
written notice of any such Claim on or prior to the expiration
of the applicable period for which the applicable
representation or warranty is intended to survive as stated in
Section 4.1.
(b) Promptly after the assertion by any third party of any Claim
against any Indemnitee that, in the judgment of such
Indemnitee, may result in the incurrence by such Indemnitee of
Damages for which such Indemnitee would be entitled to
indemnification pursuant to this Agreement, such Indemnitee
shall deliver to the Indemnitor a written notice describing in
reasonable detail such Claim and such Indemnitor may
participate in and, at its option, assume the defense of the
Indemnitee against such Claim (including the employment of
counsel, who shall be reasonably satisfactory to such
Indemnitee, and the payment of expenses). Any Indemnitee shall
have the right to employ separate counsel in any such Claim
and to participate in the defense thereof, but the fees and
expenses of such counsel shall not be at the expense of the
Indemnitor unless (i) the Indemnitor shall have failed, within
a reasonable time after having been notified by the Indemnitee
of the existence of such Claim as provided in the preceding
sentence, to assume the defense of such Claim, (ii) the
employment of such counsel has been specifically authorized in
writing by the Indemnitor, or (iii) the named parties to any
such action (including any impleaded parties) include both
such Indemnitee and the Indemnitor and such Indemnitee shall
have been advised in writing by such counsel that there may be
conflicting interests between the Indemnitee and the
Indemnitor in the legal defense thereof. No Indemnitor shall
be liable to indemnify any Indemnitee for any compromise or
settlement of any such Claim effected without the consent of
the Indemnitor.
EQUITY CONTRIBUTION AGREEMENT
9
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Guaranty and Security Obligations. [Intentionally Omitted.]
5.2 Stockholders Agreement of Holding. The Stockholders and Holding hereby
agree to enter into a Company and Stockholders Agreement, substantially in the
form attached as Exhibit C hereto (the "Stockholders Agreement") at the Closing.
MSSC and the Stockholders hereby agree to terminate that certain Amended and
Restated Company and Stockholders Agreement, between the Stockholders and MSSC,
dated as of November 7, 1996 (the "Terminated Agreement"), at the Closing;
provided, however, that all indemnification obligations of the parties under the
Terminated Agreement regarding prior transactions shall survive such termination
for any remaining duration of the relevant indemnity period.
5.3 Registration Rights Agreement of Holding. MS Acquisition and Holding
hereby agree to enter into a Registration Rights Agreement, substantially in the
form attached as Exhibit D hereto (the "Registration Agreement") at the Closing.
MSSC and MS Acquisition hereby agree to terminate that certain Registration
Rights Agreement, between MSSC and MS Acquisition, dated as of April 2, 1996, at
the Closing.
ARTICLE VI
MISCELLANEOUS
6.1 Expenses, Taxes, Etc. Holding shall pay all fees, expenses and taxes
incurred by it, any of its affiliates and the Stockholders in connection with
the transactions contemplated by this Agreement.
6.2 Further Assurances.
(a) From time to time (including after the Closing Date), at the
Stockholders' request and without further consideration,
Holding shall execute and deliver to the Stockholders such
documents and take such other action as the Stockholders may
reasonably request in order to consummate or more effectively
evidence the transactions contemplated hereby.
(b) From time to time (including after the Closing Date), at
Holding's request and without further consideration, the
Stockholders shall execute and deliver such documents and take
such other action as Holding may reasonably request in order
to consummate or more effectively evidence the transactions
contemplated hereby.
EQUITY CONTRIBUTION AGREEMENT
10
6.3 Successors and Assigns. No party shall have the right to assign all or
any part of its interest in this Agreement without the prior written consent of
the other parties, and any attempted transfer without such consent shall be null
and void. This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns.
6.4 No Third-Party Benefit. Nothing in this Agreement shall be deemed to
create any right or obligation in any person or entity not a party hereto and
this Agreement shall not be construed in any respect to be a contract or
agreement in whole or in part for the benefit of or binding upon any person or
entity not a party hereto.
6.5 Entire Agreement; Amendment. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement among the parties hereto with
respect to the transactions contemplated herein and supersede all prior oral and
written agreements, memoranda, understandings and undertakings between the
parties hereto relating to the subject matter hereof. This Agreement may not be
modified, amended, altered or supplemented except by a written instrument
executed and delivered by each of the parties hereto.
6.6 Reformation and Severability. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof:
(a) in lieu of such illegal, invalid or unenforceable provision,
there shall be added automatically as a part of this Agreement
a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable; and
(b) the legality, validity and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired
thereby.
6.7 Notices. All notices, claims, certificates, requests, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, by facsimile transmission or mailed
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
If to the Stockholders:
to the respective addresses set forth on Exhibit E.
EQUITY CONTRIBUTION AGREEMENT
11
with a copy to:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Holding:
Richmont Marketing Specialists Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Richmont Capital Partners I, L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx Simon, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above,
provided that notice of a change of address shall be deemed given only upon
receipt.
6.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
ITS CONFLICTS OF LAW RULES.
6.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
The remainder of this page is intentionally left blank.
EQUITY CONTRIBUTION AGREEMENT
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
RICHMONT MARKETING SPECIALISTS INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: President and Chief
Executive Officer
----------------------------
MARKETING SPECIALISTS SALES COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Chairman of the Board
----------------------------
MS ACQUISITION LIMITED
By: MSSC ACQUISITION CORPORATION,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------
Title: Vice President and
Chief Financial Officer
----------------------------
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
EQUITY CONTRIBUTION AGREEMENT
13
The undersigned, spouse of Xxxx X. Xxxxxx, a Stockholder (as defined in
the foregoing Agreement) executing the foregoing Agreement, hereunto subscribes
her name in evidence of her agreement and consents to the provisions regarding
the disposition of MSSC Common referred to in the foregoing Agreement, and to
all other provisions thereof.
Effective as of the day and year first above written.
/s/ P. Xxxxx Xxxxxx
-------------------
P. XXXXX XXXXXX
EQUITY CONTRIBUTION AGREEMENT
14
The undersigned, spouse of Xxxxx X. Xxxxxx, a Stockholder (as defined in
the foregoing Agreement) executing the foregoing Agreement, hereunto subscribes
her name in evidence of her agreement and consents to the provisions regarding
the disposition of MSSC Common referred to in the foregoing Agreement, and to
all other provisions thereof.
Effective as of the day and year first above written.
/s/ Xxxxxxxx X. Xxxxxx
----------------------
XXXXXXXX X. XXXXXX
EQUITY CONTRIBUTION AGREEMENT
15
SCHEDULE 1.1
Stockholders Number of Shares
------------ ----------------
Xxxxxx X. Xxxxxxxx 25,842
Xxxxxxx X. Xxxx 16,826
Xxxx X. Xxxxxx 6,193
Xxxxx X. Xxxxxx 6,193
MS Acquisition Limited 82,581
16
SCHEDULE 3.3
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx are as
of the date hereof entering into an Amended and Restated Warrant Agreement (the
"Warrant Agreement") with Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), whereby Xxxxxxxx may
purchase shares of Holding from such Stockholders. Such Warrant Agreement
replaces a virtually identical warrant agreement regarding shares of MSSC
Common.
