EXHIBIT 10.2
INVESTMENT AGREEMENT
dated as of December 22, 1998
among
LIH HOLDINGS III, LLC
BANCBOSTON CAPITAL INC.
LIBERTY MUTUAL INSURANCE COMPANY
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
MASSMUTUAL CORPORATE INVESTORS
MASSMUTUAL PARTICIPATION INVESTORS
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
and
XXXX INTERNATIONAL HOLDINGS, INC.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 2
1.1 Definitions 2
1.2 Certain Conventions 7
ARTICLE II SALE OF SHARES; CLOSING 7
2.1 Purchase and Sale 7
2.2 Closing 7
2.3 Obligations of Purchasers Several and Not Joint 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 8
3.1 Organization of the Company 8
3.2 Power and Authority 8
3.3 Capital 9
3.4 Subsidiaries 10
3.5 No Conflicts 10
3.6 Governmental Approvals and Filings 11
3.7 SEC Documents; Financial Statements 11
3.8 Absence of Changes 12
3.9 Legal Proceedings 12
3.10 Other Negotiations; Brokers 12
3.11 Exemption from Registration; Restrictions on Offer and Sale
of Same or Similar Securities 12
3.12 Other Agreements 13
3.13 Holding Company Act and Investment Company Act Status 13
3.14 Stock Purchase Agreement 13
3.15 Disclosure 13
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 14
4.1 Organization; Power and Authority 14
4.2 No Conflicts 14
4.3 Purchase for Investment 14
4.4 Brokers 15
ARTICLE V COVENANTS OF THE COMPANY 15
5.1 Regulatory and Other Approvals 15
5.2 Reservation of Shares 16
5.3 Use of Proceeds 16
5.4 Stockholders' Meeting 16
5.5 Nasdaq National Market 16
5.6 Notice and Cure 16
5.7 Fulfillment of Conditions 17
ARTICLE VI CONDITIONS TO OBLIGATIONS OF THE PURCHASERS 17
6.1 Representations and Warranties 17
6.2 Performance 17
6.3 Officers'Certificates 17
6.4 Orders and Laws 17
6.5 Regulatory Consents and Approvals 17
6.6 Third Party Consents 18
6.7 Opinion of Counsel 18
6.8 Certificate of Designation 18
6.9 Transaction Documents 18
6.10 Delivery of Certificates 18
6.11 Financing 18
6.12 Consummation of the Acquisition 19
6.13 Nasdaq National Market 19
6.14 Proceedings 19
ARTICLE VII CONDITIONS TO OBLIGATIONS OF THE COMPANY 19
7.1 Representations and Warranties 19
7.2 Performance 19
7.3 Certificate 19
7.4 Orders and Laws 20
7.5 Transaction Documents 20
7.6 Financing 20
ARTICLE VIII SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS 20
ARTICLE IX INDEMNIFICATION 21
9.1 Indemnification 21
9.2 Method of Asserting Claims 21
ARTICLE X TERMINATION 23
10.1 Termination 23
10.2 Effect of Termination 24
ARTICLE XI MISCELLANEOUS 24
11.1 Notices 24
11.2 Entire Agreement 25
11.3 Fees and Expenses 25
11.4 Public Announcements 25
11.5 Further Assurances 26
11.6 Waiver 26
11.7 Amendment 26
11.8 Third Party Beneficiaries 26
11.9 No Assignment; Binding Effect 26
11.10 Headings; Construction 27
11.11 Invalid Provisions 27
11.12 Governing Law 27
11.13 Counterparts 27
11.14 Limited Recourse 27
11.15 Consent to Jurisdiction and Service of Process 27
EXHIBITS
Exhibit A -- Form of Second Amended and Restated Governance Agreement
Exhibit B -- Form of Rights Agreement
Exhibit C -- Form of Series B Certificate of Designation
Exhibit D-1 -- Form of Company Officer's Certificate
Exhibit D-2 -- Form of Company Secretary's Certificate
Exhibit E -- Form of Opinion of Xxxxxxx, Street and Deinard
Exhibit F -- Form of Closing Certificate for each Purchaser
SCHEDULES
Schedule I -- Purchased Securities; Purchase Price; Address for Notices
Schedule 3.3 -- Capital of Company
Schedule 3.5 -- No Conflicts
Schedule 3.8 -- Absence of Changes
Schedule 4.1 -- Purchaser's Entity and Jurisdiction
INVESTMENT AGREEMENT dated as of December 22, 1998, among LIH HOLDINGS
III, LLC, a Delaware limited liability company ("LIH Holdings III"),
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation
("MassMutual"), MASSMUTUAL CORPORATE INVESTORS, a Massachusetts business trust
("MMCI"), MASSMUTUAL PARTICIPATION INVESTORS, a Massachusetts business trust
("MMPI") and MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED, a Cayman Islands
corporation ("MMCVP"; MassMutual, MMCI, MMPI and MMCVP being hereinafter
collectively referred to as the "MassMutual Entities"), Liberty Mutual Insurance
Company, a Massachusetts corporation ("Liberty Mutual"), and BancBoston Capital
Inc., a Massachusetts corporation ("BancBoston"; LIH Holdings III, the
MassMutual Entities, Liberty Mutual and BancBoston being hereinafter
collectively referred to as the "Purchasers"), and XXXX INTERNATIONAL HOLDINGS,
INC., a Delaware corporation (the "Company").
WHEREAS, (a) LIH Holdings, LLC, a Delaware limited liability company
("LIH Holdings I"), is presently an Affiliate of LIH Holdings III and the owner
of 1,686,893 shares of the Common Stock, par value $0.10 per share (the "Common
Stock"), of the Company and (ii) LIH Holdings II, LLC, a Delaware limited
liability company ("LIH Holdings II"), is presently an Affiliate of LIH Holdings
III and the owner of 874,400 shares of Common Stock and 1,493,398 shares of the
Class B-1 Common Stock (the "Class B-1 Common Stock"), of the Company;
WHEREAS, pursuant to the Stock Purchase Agreement dated as of December
__, 1998 (as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the provisions thereof, the "Stock Purchase
Agreement"), the Company agreed, subject to the conditions therein contained, to
acquire (the "Acquisition"), all the outstanding capital stock of Auto Ventshade
Company (the "Target") for a cash purchase price equal to $66 million;
WHEREAS, in order to provide a portion of the funds required for the
Acquisition, on the terms and subject to the conditions set forth herein, the
Company desires to sell to the Purchasers, and each of the Purchasers desires to
purchase from the Company, in the aggregate, 1,047,412 shares of Common Stock
and 252,401.8 shares of Series B Preferred Stock, par value $.01 per share (the
"Series B Preferred Stock"), of the Company, all for an aggregate purchase price
equal to $25,000,000 (the "Aggregate Purchase Price");
WHEREAS, in order to provide the balance of the funds required for the
Acquisition, the Company has entered into (i) the Xxxxxx Credit Agreement dated
as of December __, 1998 between the Company and Xxxxxx Financial, Inc. (as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof, the "Xxxxxx Credit Agreement") and (ii)
each of the Securities Purchase Agreements dated as of December __, 1998 between
the Company, certain of its subsidiaries, each of the MassMutual Entities and
National City Venture Corporation, a Delaware corporation (as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the provisions thereof, collectively, the "Securities Purchase Agreements"); and
WHEREAS, the amount of the aforementioned securities to be purchased by
each Purchaser pursuant hereto and the portion of the Aggregate Purchase Price
to be paid by such Purchaser therefor are as set forth opposite such Purchaser's
name in Schedule I.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
I. ARTICLE
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
defined terms shall have the respective meanings indicated below:
"Acquisition" has the meaning ascribed to it in the recitals hereto.
"Actions or Proceeding" means any action, suit, proceeding, arbitration
or Governmental or Regulatory Authority investigation or audit.
"Aggregate Purchase Price" has the meaning ascribed to it in the
recitals hereto.
"Affiliate" means, as applied to any Person, (i) any other Person
directly or indirectly controlling, controlled by or under common control with
that Person, (ii) any other Person that owns or controls 5% or more of any class
of equity securities (including any equity securities issuable upon the exercise
of any Option) of that Person or any of its Affiliates, or (iii) any member,
director, partner, officer, agent, employee or relative of that Person. For the
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by", and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through ownership of voting securities or by Contract or
otherwise. For the purpose of this Agreement, (i) none of the Purchasers, LIH
Holdings I, LIH Holdings II or any of their respective Affiliates (other than
the Company and its Subsidiaries) shall be deemed to be "Affiliates" of the
Company or any Subsidiary and (ii) neither the Company nor any Subsidiary shall
be deemed to be an "Affiliate" of any Purchaser, LIH Holdings I, LIH Holdings II
or any of their respective Affiliates (other than the Company and its
Subsidiaries).
"Agreement" means this Investment Agreement and the Schedules and
Exhibits hereto and the certificates delivered in connection herewith, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof.
"Amended and Restated Governance Agreement" means the Second Amended
and Restated Governance Agreement, dated as of the date hereof, among the LIH
Entities and the Company, substantially in the form of Exhibit A, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof.
"Assets and Properties" of any Person means all assets and properties
of every kind, nature, character and description (whether real, personal or
mixed, whether tangible or intangible, whether absolute, accrued, contingent,
fixed or otherwise and wherever situated), including the goodwill related
thereto, operated, owned or leased by such Person, including cash, cash
equivalents, accounts and notes receivable, chattel paper, documents,
instruments, general intangibles, real estate, equipment, inventory, goods and
intellectual property.
"BancBoston" has the meaning ascribed to it in the introductory
paragraph hereto.
"Business Day" means a day other than Saturday, Sunday or any day on
which banks located in the State of New York or the State of Minnesota are
authorized or obligated to close.
-1-
"Business or Condition of the Company" means the business, condition
(financial or otherwise), results of operations, and Assets and Properties of
the Company and the Subsidiaries, taken as a whole.
"Charter" means the Certificate of Incorporation of the Company, as
amended, after giving effect to the filing of the Series B Certificate of
Designation with the Secretary of State of the State of Delaware.
"Claim Notice" has the meaning ascribed to it in Section 9.2(a).
"Class B Common Stock" has the meaning ascribed to it in Section 3.3.
"Class B-1 Common Stock" has the meaning ascribed to it in the recitals
hereto.
"Closing" means the closing of the transactions contemplated by Section
2.2.
"Closing Date" means the date on which the Closing actually occurs.
"Common Stock" has the meaning ascribed to it in the recitals hereto.
"Company" has the meaning ascribed to it in the introductory paragraph
hereto.
"Contract" means any agreement, lease, debenture, note, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract or
commitment (whether written or oral).
"Dispute Period" means the period ending 30 calendar days following
receipt by an Indemnifying Party of an Indemnity Notice.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Financial Statement Date" means June 30, 1998.
"Financing Agreements" means the Xxxxxx Credit Agreement and the
Securities Purchase Agreements.
"GAAP" means United States generally accepted accounting principles,
consistently applied throughout the specified period and all prior comparable
periods.
"Governmental or Regulatory Authority" means any court, tribunal,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision, any arbitrator or panel of arbitrators, any stock
exchange or quotation service, and the National Association of Securities
Dealers.
"Xxxxxx Credit Agreement" has the meaning ascribed to it in the
recitals hereto.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person means all obligations of such Person (i)
for borrowed money, (ii) evidenced by notes, bonds, debentures or similar
instruments, (iii) for the deferred purchase price of goods or services (other
than trade payables or accruals incurred in the ordinary course of business),
(iv) under capital leases, (v) as an account party in respect of letters of
credit and similar instruments and (vi) in the nature of guarantees of the
obligations described in clauses (i) through (v) above of any other Person.
"Indemnified Party" has the meaning ascribed to it in Section 9.1.
"Indemnifying Party" has the meaning ascribed to it in Section 9.1.
"Indemnity Notice" has the meaning ascribed to it in Section 9.2(c).
"Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"Liberty Mutual" has the meaning ascribed to it in the introductory
paragraph hereto.
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or Contract committing
to grant any of the foregoing.
"LIH Entities" means LIH Holdings I, LIH Holdings II and LIH Holdings
III, collectively.
"LIH Holdings I" has the meaning ascribed to it in the recitals hereto.
"LIH Holdings II" has the meaning ascribed to it in the recitals
hereto.
"LIH Holdings III" has the meaning ascribed to it in the introductory
paragraph hereto.
"Loss" means any and all damages, fines, fees, penalties, deficiencies,
losses and expenses, including interest, reasonable expenses of investigation,
court costs, reasonable fees and expenses of attorneys, accountants and other
experts and other expenses associated with litigation or other proceedings or
with any claim, default or assessment (such fees and expenses to include all
fees and expenses, including the reasonable fees and expenses of attorneys,
incurred in connection with (i) the investigation or defense of any Third Party
Claims or (ii) asserting or disputing any rights under this Agreement or any
Transaction Document against the Company and any party hereto or otherwise). As
applied to any Purchaser, "Loss" shall also be deemed to include any
indemnifiable claim of any Purchaser hereunder and any diminution in the value
of the Purchased Securities being purchased by such Purchaser hereunder (or any
successor securities).
"MassMutual" has the meaning ascribed to it in the introductory
paragraph hereto.
"MassMutual Entities" has the meaning ascribed to it in the
introductory paragraph hereto.
"MMCI" has the meaning ascribed to it in the introductory paragraph
hereto.
"MMCVP" has the meaning ascribed to it in the introductory paragraph
hereto.
-2-
"MMPI" has the meaning ascribed to it in the introductory paragraph
hereto.
"Option" with respect to any Person means any security, right,
subscription, warrant, option, "phantom" stock right or other Contract that
gives the right to (i) purchase or otherwise receive or be issued any shares of
capital stock or other equity interests of such Person or any security of any
kind convertible into or exchangeable or exercisable for any shares of capital
stock or other equity interests of such Person or (ii) receive any benefits or
rights similar to any rights enjoyed by or accruing to the holder of shares of
capital stock or other equity interests of such Person, including any rights to
participate in the equity, income or election of directors, management committee
members or officers of such Person.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each case whether preliminary or
final).
"Person" or "person" means any individual, corporation, joint stock
corporation, limited liability company or partnership, general partnership,
limited partnership, proprietorship, joint venture, other business organization,
trust, union, association, Governmental or Regulatory Authority or other entity
of any kind.
"Preferred Stock" has the meaning ascribed to it in Section 3.3.
"Purchase Price" means, with respect to each Purchaser, the dollar
amount (representing a portion of the Aggregate Purchase Price) set forth
opposite such Purchaser's name in Schedule I.
"Purchased Securities" means, with respect to each Purchaser, the
shares of Common Stock and Series B Preferred Stock to be purchased by such
Purchaser pursuant to Section 2.1.
"Purchasers" has the meaning ascribed to it in the introductory
paragraph hereto.
"Resolution Period" means the period ending 30 calendar days following
receipt by an Indemnified Party of a Dispute Notice.
"Rights Agreement" means the Rights Agreement to be entered into as of
the Closing Date by LIH Holdings I, LIH Holdings II, the Purchasers, the Company
and the other parties thereto substantially in the form of Exhibit B, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof.
"SEC" means the Securities and Exchange Commission.
"SEC Document" has the meaning ascribed to it in Section 3.7.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Securities Purchase Agreements" has the meaning ascribed to it in the
recitals hereto.
"Series B Preferred Stock" has the meaning ascribed to it in the
recitals hereto.
"Series B Certificate of Designation" means the Certificate of
Designation with respect to the Series B Preferred Stock, substantially in the
form of Exhibit C, to be filed with the Secretary of State of the State of
Delaware prior to the Closing.
"Stock Purchase Agreement" has the meaning ascribed to it in the
recitals hereto.
"Subsidiary" means any Person in which the Company, directly or
indirectly through one or more Subsidiaries or otherwise, beneficially owns more
than 50% of either the equity interests in, or the voting control of, such
Person.
"Target" has the meaning ascribed to it in the recitals hereto.
"Third Party Claim" has the meaning ascribed to it in Section 9.2(a).
"Transaction Documents" means the Amended and Restated Governance
Agreement, the Rights Agreement and any support or other agreement to be entered
into by two or more of the parties hereto in connection with the transactions
contemplated by this Agreement.
1.2 Certain Conventions. Unless the context of this Agreement
otherwise requires, (i) words of any gender include the other gender, (ii) words
(other than Purchaser) using the singular or plural number also include the
plural or singular number, respectively, (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement, (iv)
the terms "Article" and "Section" refer to the specified Article or Section of
this Agreement, (v) the words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation", and (vi) the phrases
"ordinary course of business" and "ordinary course of business consistent with
past practice" refer to the business and practice of the Company or a
Subsidiary. All accounting terms used herein and not expressly defined herein
shall have the respective meanings given to them under GAAP.
II. ARTICLE
SALE OF SHARES; CLOSING
2.1 Purchase and Sale. At the Closing, on the terms and
subject to the conditions of this Agreement, the Company shall issue and sell to
each Purchaser, and each Purchaser shall purchase from the Company, the shares
of Common Stock and Series B Preferred Stock set forth opposite such Purchaser's
name in Schedule I, free and clear of all Liens, for an aggregate purchase price
(payable in cash in the manner provided in Section 2.2) equal to the Purchase
Price with respect to such Purchaser.
2.2 Closing. The Closing will take place at such location as
LIH Holdings III and the Company mutually agree on the first Business Day as of
which each of the conditions precedent set forth in Article VI and Article VII
shall have been satisfied or waived as provided therein, or on such other date
as the Company and LIH Holdings III shall mutually agree. At the Closing, each
Purchaser shall pay the Purchase Price with respect to such Purchaser by wire
transfer of immediately available funds to the account specified by the Company
by written notice delivered to the Purchasers at least two Business Days before
the Closing Date. Simultaneously, the Company shall deliver to each Purchaser
certificates, registered in the name of such Purchaser, representing such
Purchaser's
-3-
Purchased Securities. At the Closing, there shall also be delivered to the
Company and the Purchasers the opinions, certificates and other Contracts,
documents and instruments to be delivered under Articles VI and VII.
2.3 Obligations of Purchasers Several and Not Joint.
Notwithstanding anything herein to the contrary (other than the proviso
contained in this Section 2.3), the obligations of each Purchaser under this
Agreement are separate from the obligations of each other Purchaser under this
Agreement, and no Purchaser shall be liable or otherwise responsible in any
manner for any obligation of any other Purchaser under this Agreement; provided,
however, that each obligation of a MassMutual Entity hereunder shall be the
joint and several obligation of all of the MassMutual Entities.
III. ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Purchaser that the
statements contained in this Article III are true and correct as of the date of
this Agreement and will be true and correct as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article III). In the case of all representations and
warranties that expressly relate or are deemed to be made as of the Closing Date
pursuant to this Article III, the Acquisition is deemed to have occurred and the
Target is deemed to be a Subsidiary of the Company.
3.1 Organization of the Company. The Company is a corporation
duly organized, validly existing and in good standing under the Laws of the
State of Delaware, and is duly qualified, licensed or admitted to do business
and in good standing in those jurisdictions in which the ownership, use or
leasing of its Assets and Properties or the conduct or nature of its business
makes such qualification, licensing or admission necessary, except for such
failures to be so qualified, licensed, admitted or in good standing which will
not, individually or in the aggregate, have a material adverse effect on the
Business or Condition of the Company.
3.2 Power and Authority. The Company has the requisite power
and authority to execute and deliver this Agreement, the Transaction Documents
to which it is a party, the Stock Purchase Agreement and the Financing
Agreements, to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery by the Company of this Agreement, the Transaction Documents to which it
is a party, the Stock Purchase Agreement and the Financing Agreements, the
performance by the Company of its obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby, have been duly
and validly authorized by all necessary action on the part of the Board of
Directors of the Company, which action of the Board of Directors is the only
action necessary to authorize the execution, delivery and performance by the
Company of this Agreement, the Transaction Documents to which it is a party, the
Stock Purchase Agreement and the Financing Agreements. This Agreement has been
duly and validly executed and delivered by the Company and constitutes, and upon
the execution and delivery by the Company of each Transaction Document to which
it is a party, each such Transaction Document will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to the enforcement of creditors' rights generally
and by general principles of equity.
3.3 Capital. As of the date hereof and as of the Closing Date
immediately before giving effect to the Closing, the authorized capital stock of
the Company consists of 25,000,000 shares of Common Stock, 3,000,000 shares of
Class B Common Stock, par value $0.01 per share (the "Class B Common Stock"),
and 2,000,000 shares of preferred stock, par value $0.01 per share (the
"Preferred Stock"), of which (a) 5,263,370 shares of Common Stock are
outstanding, all of which are validly issued, fully paid and non-assessable, and
have been issued in compliance with all applicable federal and state securities
laws, (b) 1,493,398 shares of Class B Common Stock (designated as Class B-1
Common Stock) are outstanding, all of which are validly issued, fully paid and
non-assessable, and have been issued in compliance with all applicable federal
and state securities laws, and (c) no shares of Preferred Stock are outstanding.
On December 30, 1997, the Company validly issued 1,493,398 shares of Preferred
Stock (designated as Series A Preferred Stock) to LIH Holdings II in compliance
with all applicable federal and state securities laws, which shares were duly
converted into an equal number of shares of Class B-1 Common Stock on April 21,
1998. Immediately after giving effect to the Closing and the other transactions
contemplated by this Agreement, the Transaction Documents, the Stock Purchase
Agreement or the Financing Agreements to occur as of the Closing Date, (i) the
authorized capital stock of the Company will consist of 25,000,000 shares of
Common Stock, 3,000,000 shares of Class B Common Stock, of which 1,493,398
shares shall have been designated as Class B-1 Common Stock, 2,000,000 shares of
Preferred Stock, of which 1,493,398 shares have previously been designated as
Series A Preferred Stock and 292,225 shares shall have been designated as Series
B Preferred Stock, and (ii) the outstanding capital stock of the Company will
consist of 6,310,782 shares of Common Stock, 1,493,398 shares of Class B-1
Common Stock and 252,401.8 shares of Series B Preferred Stock. Except for the
Class B-1 Common Stock and the Series B Preferred Stock, or as set forth in
Schedule 3.3, there are no, and immediately after giving effect to the Closing
and the other transactions contemplated by this Agreement, the Transaction
Documents, the Stock Purchase Agreement or the Financing Agreements to occur on
the Closing Date, there will not be any, (x) outstanding Options with respect to
the Company, (y) agreements, arrangements or understandings to issue Options
with respect to the Company or (z) preemptive rights or agreements, arrangements
or understandings to issue preemptive rights with respect to the issuance or
sale of the Company's capital stock. Upon issuance at the Closing, the
certificates representing the Purchased Securities of each Purchaser will grant
to such Purchaser good and valid title to its Purchased Securities free and
clear of all Liens, and each Purchaser's Purchased Securities will have been
duly authorized, validly issued and fully paid and will be nonassessable.
The Company has taken all necessary corporate action to reserve the full number
of shares of Common Stock issuable upon the conversion of all the shares of
Series B Preferred Stock being purchased by the Purchasers hereunder. The shares
of Common Stock referred to above when issued upon conversion, will be duly
authorized, validly issued, fully paid and nonassessable.
Neither the execution, delivery or performance by the Company of this Agreement,
the Transaction Documents to which it is a party, the Stock Purchase Agreement
or the Financing Agreements, nor the issuance of the Purchased Securities of
each Purchaser as contemplated hereby, nor the issuance of shares of Common
Stock upon the conversion of any shares of Class B-1 Common Stock currently
outstanding, nor the issuance of shares of Common Stock upon the conversion of
any shares of Series B Preferred Stock being purchased by any Purchaser
hereunder, nor the consummation of the transactions contemplated by this
Agreement, the Transaction Documents, the Stock Purchase Agreement and the
Financing Agreements, will give rise to or result in (with or without notice,
lapse of time or both) any antidilution adjustment, acceleration of vesting or
other change under or to any Option, except as set forth in Schedule 3.3.
3.4 Subsidiaries. Each Subsidiary is a corporation duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation and has full corporate power and authority to
conduct its business as and to the extent now conducted and to own, use and
lease its Assets and Properties. Each Subsidiary is duly qualified, licensed or
admitted to do business and in good standing in those jurisdictions in which the
ownership, use or leasing of such Subsidiary's Assets and Properties, or the
conduct or nature of its business, makes such qualification, licensing or
admission necessary, except for such failures to be so qualified, licensed,
-4-
admitted or in good standing which will not, individually or in the aggregate,
have a material adverse effect on the Business or Condition of the Company. All
of the outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, and are owned,
beneficially and of record, by the Company or Subsidiaries wholly owned by the
Company, free and clear of all Liens. There are no outstanding Options with
respect to any Subsidiary and no agreements, arrangements or understandings to
issue Options with respect to any Subsidiary. Except for the capital stock of
the Subsidiaries, neither the Company nor any Subsidiary holds any equity,
partnership, limited liability company, joint venture or other interest in any
Person.
3.5 No Conflicts. The execution and delivery by the Company of
this Agreement, the Transaction Documents to which it is a party, the Stock
Purchase Agreement and the Financing Agreements, the performance by the Company
of its respective obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby (including, the filing of the
Series B Certificate of Designation, the issuance of the Purchased Securities of
each Purchaser, the issuance of Common Stock upon the conversion of the shares
of Class B-1 Common Stock currently outstanding, the issuance of Common Stock
upon the conversion of the shares of Series B Preferred Stock being purchased by
the Purchasers hereunder), does not and will not: (a) conflict with or result in
a violation or breach of any of the terms, conditions or provisions of the
Company's certificate of incorporation or by-laws; (b) conflict with or result
in a violation or breach of any term or provision of any Law or Order applicable
to the Company or any Subsidiary or any of their respective Assets and
Properties; or (c) except as set forth in Schedule 3.5 hereto, (i) conflict with
or result in a violation or breach of, (ii) constitute (with or without notice
or lapse of time or both) a default under, (iii) require the Company or any
Subsidiary to obtain any consent, approval or action of, make any filing with or
give any notice to any Person as a result or under the terms of, (iv) result in
any termination, cancellation, acceleration or modification of, or give to any
Person any right of termination, cancellation, acceleration or modification in
or with respect to, (v) give to any Person any additional rights or entitlement
to increased, additional, accelerated or guaranteed payments under, (vi) other
than liabilities under this Agreement, the Transaction Documents, the Stock
Purchase Agreement and the Financing Agreements, result in the creation of any
new, additional or increased liability of the Company or any Subsidiary under,
or (vii) result in the creation or imposition of any Lien upon the Company or
any Subsidiary or any of their respective Assets and Properties under, any
Contract to which the Company or any Subsidiary is a party or by which any of
their respective Assets and Properties is bound.
3.6 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Company (other than (a) as may be required under the Exchange
Act or, solely by reason of the Company's acquisition of Target, the HSR Act and
(b) the filing of the Series B Certificate of Designation with the Secretary of
State of the State of Delaware) is required in connection with the execution,
delivery and performance of this Agreement, the Transaction Documents, the Stock
Purchase Agreement or the Financing Documents or the consummation of the
transactions contemplated hereby or thereby.
3.7 SEC Documents; Financial Statements. Each report,
schedule, form, statement and other document required to be filed by the Company
with the SEC (each an "SEC Document", and collectively, the "SEC Documents") has
been so filed. As of its filing date, each SEC Document complied in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act. None of the SEC Documents, except to the extent that information contained
therein has been revised or superseded by an SEC Document subsequently filed
with the SEC, contains any untrue statement of a material fact or omits to state
a material fact (x) necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading or (y) required
to be stated therein or necessary to make the statements therein not misleading.
The financial statements of the Company and its Subsidiaries included in the SEC
Documents comply in all material respects with applicable requirements under the
Securities Act and the Exchange Act and any other published rules and
regulations of the SEC with respect to accounting requirements, have been
prepared in accordance with GAAP (except as may be indicated in the notes
thereto) and fairly present the consolidated financial position of the Company
and its consolidated Subsidiaries as of the respective dates thereof and the
consolidated results of their operations and cash flows for the respective
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments which will not have or reflect a material adverse
effect on the Business or Condition of the Company).
3.8 Absence of Changes. Since the Financial Statement Date,
except as set forth in Schedule 3.8 hereto or as disclosed in the SEC Documents
filed prior to the date hereof, there has not been any event or development
which, individually or together with other such events, did have or could
reasonably be expected to have a material adverse effect on the Business or
Condition of the Company. None of the other representations or warranties in
this Agreement shall be deemed to limit the foregoing.
3.9 Legal Proceedings. There are no Actions or Proceedings
pending or, to the knowledge of the Company, threatened overtly against,
relating to or affecting the Company or any Subsidiary or any of their
respective Assets and Properties, which (i) could reasonably be expected to
result in the issuance of an Order restraining, enjoining or otherwise
prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement, the Transaction Documents, the Stock Purchase
Agreement or the Financing Agreements, or (ii) if determined adversely to the
Company or such Subsidiary, could reasonably be expected to, individually or in
the aggregate with other such Actions or Proceedings, have a material adverse
effect on the Business or Condition of the Company.
3.10 Other Negotiations; Brokers. None of the Company, any
Subsidiary or any of their respective Affiliates (nor any investment banker,
financial advisor, attorney, accountant or other Person retained by or acting
for or on behalf of the Company, any Subsidiary or any such Affiliate) (i) has
entered into any Contract that conflicts with any of the transactions
contemplated by this Agreement, the Transaction Documents, the Stock Purchase
Agreement or the Financing Agreements or (ii) has entered into any Contract or
had any discussions with any third party regarding any transaction involving the
Company or any Subsidiary which could result in any Purchaser, any of its
stockholders, members, general or limited partners, or any officer, director,
employee, agent or Affiliate of any Purchaser or any such stockholder, member or
partner being subject to any claim for liability to said third party in
connection with this Agreement, the Transaction Documents, the Stock Purchase
Agreement or the Financing Agreements or the consummation of any of the
transactions contemplated hereby or thereby. Other than Xxxxx Xxxxxxx Inc., the
fees and expenses of which will be paid by the Company, no agent, broker,
finder, investment banker, financial advisor or other similar Person will be
entitled to any fee, commission or other compensation in connection with any of
the transactions contemplated by this Agreement, the Transaction Documents, the
Stock Purchase Agreement or the Financing Agreements on the basis of any act or
statement made or alleged to have been made by the Company, any Subsidiary, any
of their respective Affiliates, or any investment banker, financial advisor,
attorney, accountant or other Person retained by or acting for or on behalf of
the Company, any Subsidiary or any such Affiliate.
3.11 Exemption from Registration; Restrictions on Offer and
Sale of Same or Similar Securities. Assuming the representations and warranties
of each Purchaser set forth in Section 4.3 are true and correct in all material
respects, the offer and sale of the Purchased Securities made to each Purchaser
pursuant to this Agreement is exempt from the registration requirements of the
Securities Act. Neither the Company nor any Person authorized to act on its
behalf has, in connection with the offering of the Purchased Securities of any
Purchaser, engaged in (i) any form of general solicitation or general
advertising (as those terms are used within the meaning of Rule 502(c) under the
Securities Act), (ii) any action involving a public offering within the meaning
of Section 4(2) of the Securities Act, or (iii) any action that would require
the registration under the Securities Act of the offering and sale of any
Purchased Securities pursuant to this Agreement or that would violate applicable
state securities or "blue
-5-
sky" laws. Neither the Company nor any Person authorized to act on its behalf
has made, directly or indirectly, any offer or sale of any Purchased Securities
or of securities of the same or a similar class as any Purchased Securities that
could cause any offer or sale of any Purchased Securities contemplated hereby to
fail to be entitled to exemption from the registration requirements of the
Securities Act. As used herein, the terms "offer" and "sale" have the meanings
specified in Section 2(3) of the Securities Act.
3.12 Other Agreements. Each of the representations and
warranties of the Company contained in the Stock Purchase Agreement are or will
be true and correct in all material respects (if not qualified by materiality)
and in all respects (if qualified by materiality) on and as of each of the date
hereof, and the Closing Date, as though made on and as of such dates. Each of
the representations and warranties of the Company contained in any Financing
Agreement will be true and correct in all material respects (if not qualified by
materiality) or in all respects (if qualified by materiality) on and as of the
Closing Date as though made on and as of such date.
3.13 Holding Company Act and Investment Company Act Status.
Neither the Company nor any Subsidiary is a "holding company" or a "public
utility company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended. Neither the Company nor any Subsidiary is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
3.14 Stock Purchase Agreement. The Company has delivered to
each Purchaser a true and complete copy of the Stock Purchase Agreement. The
Stock Purchase Agreement has not been terminated or amended, supplemented or
otherwise modified in any respect, and no party thereto has granted any waiver
of any of the terms or conditions thereof.
3.15 Disclosure. No representation or warranty on the part of
the Company contained in this Agreement, and no statement contained in any
schedule or in any certificate, list or other writing furnished to the
Purchasers pursuant to any provision of this Agreement, including pursuant to
Article VI, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements herein or therein, in
the light of the circumstances under which they were made, not misleading.
IV. ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, hereby represents and
warrants to the Company, with respect to such Purchaser only, that the
statements contained in this Article IV are true and correct as of the date of
this Agreement and will be true and correct as of the Closing Date (as though
made then and as though the Closing Date was substituted for the date of this
Agreement throughout this Article IV).
4.1 Organization; Power and Authority. Such Purchaser is the
type of business entity set forth opposite its name in Schedule 4.1 hereto, and
has been duly organized and is validly existing and in good standing under the
Laws of the jurisdiction set forth opposite its name in Schedule 4.1 hereto.
Such Purchaser has the requisite power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by such Purchaser
of this Agreement, the performance by such Purchaser of its obligations
hereunder and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all requisite action on the part of such
Purchaser. This Agreement has been duly and validly executed and delivered by
such Purchaser and constitutes the legal, valid and binding obligation of such
Purchaser enforceable against such Purchaser in accordance with its terms,
except as the enforceability hereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws relating
to the enforcement of creditors' rights generally and by general principles of
equity.
4.2 No Conflicts. The execution, delivery and performance by
such Purchaser of this Agreement, and the consummation by such Purchaser of the
transactions contemplated hereby, will not conflict with, or constitute a
default under, any agreement, indenture or instrument to which such Purchaser is
a party, or result in a violation of (a) such Purchaser's constitutive documents
or (b) any Order of any Governmental or Regulatory Authority having jurisdiction
over such Purchaser or any of its properties. Except for such filings as may be
required by the Exchange Act, no consent, approval or action of, or filing or
registration with, any Governmental or Regulatory Authority is required on the
part of such Purchaser for its execution, delivery and performance of this
Agreement.
4.3 Purchase for Investment. The Purchased Securities being
purchased by such Purchaser hereunder will be purchased by such Purchaser for
its own account for the purpose of investment and not with a view to the resale
or distribution of all or any part of such Purchased Securities in violation of
the Securities Act, it being understood that the right to dispose of such
Purchased Securities shall (subject to the Amended and Restated Governance
Agreement, in the case of LIH Holdings III) be entirely within the discretion of
such Purchaser. Such Purchaser is an "accredited investor" (as such term is
defined in Rule 501(a) of Regulation D under the Securities Act). Such Purchaser
has such knowledge and experience in financial and business matters as to be
able to evaluate the merits and risks of its investment in Purchased Securities
pursuant to this Agreement and is able to bear the economic risk of such
investment (including a complete loss of such investment). Such Purchaser
understands that the Purchased Securities being purchased by it hereunder have
not been registered under the Securities Act or any state securities laws in
reliance on exemptions from the registration requirements of the Securities Act
and such state securities laws, which depend upon, among other things, the
accuracy of the representations of such Purchaser set forth in this Section 4.3.
4.4 Brokers. Other than Xxxxx Xxxxxxx Inc., the fees and
expenses of which will be paid by the Company, no agent, broker, finder,
investment banker, financial advisor or other similar Person will be entitled to
any fee, commission or other compensation in connection with any of the
transactions contemplated by this Agreement on the basis of any act or statement
made by any Purchaser.
V. ARTICLE
COVENANTS OF THE COMPANY
The Company covenants and agrees with each Purchaser that, at all times
from and after the date hereof and until the Closing and, with respect to any
covenant or agreement by its terms to be performed in whole or in part after the
Closing, for the period specified herein or, if no period is specified herein,
indefinitely, the Company will comply with all the covenants and provisions
contained in this Article V, except to the extent that the Purchasers may
otherwise consent in writing.
5.1 Regulatory and Other Approvals. The Company shall and
shall cause each Subsidiary to (a) take all necessary or desirable steps and
proceed diligently and in good faith and use its best efforts, as promptly as
practicable, to obtain all consents, approvals or actions of, to make all
filings with and to give all notices to, Governmental or Regulatory Authorities
and other Persons required of the Company or any Subsidiary to consummate the
transactions contemplated by this Agreement, the Transaction Documents, the
Stock Purchase Agreement
-6-
and the Financing Agreements, (b) provide such other information and
communications to such Governmental or Regulatory Authorities and other Persons
as any Purchaser or any such Governmental or Regulatory Authorities and other
Person may reasonably request and (c) cooperate with each Purchaser as promptly
as practicable in obtaining all consents, approvals or actions of, making all
filings with and giving all notices to, Governmental or Regulatory Authorities
and other Persons required of such Purchaser to consummate the transactions
contemplated by this Agreement and the Transaction Documents. The Company shall
provide prompt notification to each Purchaser when any such consent, approval,
action, filing or notice referred to in clause (a) above is obtained, taken,
made or given, as applicable, and will advise each Purchaser of any
communications (and, unless precluded by Law, provide each Purchaser with copies
of any such communications that are in writing) with any Governmental or
Regulatory Authority regarding any of the transactions contemplated by this
Agreement, the Transaction Documents, the Stock Purchase Agreement or the
Financing Agreements.
5.2 Reservation of Shares. The Company shall (a) at all times
that the shares of Series B Preferred Stock being purchased by the Purchasers
hereunder are outstanding, keep reserved the full number of shares of Common
Stock issuable upon conversion of such shares of Series B Preferred Stock and
(b) at all times that the currently outstanding shares of Class B-1 Common Stock
are outstanding, keep reserved the full number of shares of Common Stock
issuable upon conversion of such currently outstanding shares of Class B-1
Common Stock.
5.3 Use of Proceeds. The Company shall use the proceeds from
each purchase and sale of the Purchased Securities hereunder in order to
consummate the Acquisition.
5.4 Stockholders' Meeting. The Company shall on or before
April 30, 1999 (and, if necessary, from time to time as requested by any
Purchaser thereafter) call a stockholders meeting for the purpose of approving
the conversion of the Series B Preferred Stock into Common Stock pursuant to the
terms of the Series B Certificate of Designation. The Company shall promptly
(and, if necessary, from time to time as requested by LIH Holdings III) call a
stockholders meeting for the purpose of approving the terms of the Class B-1
Common Stock.
5.5 Nasdaq National Market. Prior to the Closing, the Company
shall cause the shares of Common Stock included in the Purchased Securities to
be approved for listing, subject to notice of issuance, by the Nasdaq National
Market. As soon as practicable after the conversion of the Series B Preferred
Stock, the Company shall cause the shares of Common Stock issuable upon
conversion of the Series B Preferred Stock to be approved for listing, subject
to notice of issuance, by the Nasdaq National Market. The Company shall cause
the shares of Common Stock issuable upon conversion of the currently outstanding
Class B-1 Common Stock to be approved for listing, subject to notice of
issuance, by the Nasdaq National Market.
5.6 Notice and Cure. The Company shall notify each Purchaser
promptly in writing of, and contemporaneously shall provide each Purchaser with
true and complete copies of any and all information or documents relating to,
and the Company shall use all commercially reasonable best efforts to cure
before the Closing, any event, transaction or circumstance that causes or will
cause any covenant or agreement of the Company under this Agreement to be
materially breached (if not qualified by materiality) or breached (if qualified
by materiality) or that renders or shall render materially untrue (if not
qualified by materiality) or untrue (if qualified by materiality) any
representation or warranty of the Company contained in this Agreement as if the
same were made on or as of the date of such event, transaction or circumstance.
The Company also shall notify each Purchaser promptly in writing of, and the
Company shall use all commercially reasonable best efforts to cure, before the
Closing, any material violation or material breach (in each case, if not
qualified by materiality) or any violation or breach (in each case, if qualified
by materiality) of any representation, warranty, covenant or agreement made by
the Company in this Agreement, whether occurring or arising before, on or after
the date of this Agreement. No notice given pursuant to this Section 5.6, and no
representation made by any Purchaser contained in Section 4.3, shall have any
effect on the representations, warranties, covenants and agreements contained in
this Agreement for purposes of determining satisfaction of any condition
contained herein or shall in any way limit any Purchaser's right to seek
indemnity under Article IX.
5.7 Fulfillment of Conditions. The Company shall take all
steps necessary or desirable and use all commercially reasonable efforts to
satisfy each condition to the obligations of the Purchasers contained in this
Agreement and shall not take or fail to take any action if such action or
failure to act could reasonably be expected to result in the nonfulfillment of
any such condition.
VI. ARTICLE
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
The obligations of each Purchaser hereunder are subject to the
fulfillment, at or before the Closing, of each of the following conditions (all
or any of which may be waived in whole or in part (as to such Purchaser) by such
Purchaser in its sole discretion):
6.1 Representations and Warranties. Each of the
representations and warranties made by the Company in this Agreement shall be
true and correct in all material respects (if not qualified by materiality) and
in all respects (if qualified by materiality) on and as of the Closing Date as
though such representation or warranty was made on and as of the Closing Date.
6.2 Performance. The Company shall have performed and complied
with each agreement, covenant and obligation required by this Agreement to be
performed or complied with by the Company at or before the Closing.
6.3 Officers' Certificates. The Company shall have delivered
to the Purchasers a certificate, dated the Closing Date and executed by the
President or any Vice President of the Company, substantially in the form and to
the effect of Exhibit D-1 hereto, and a certificate, dated the Closing Date and
executed by the Secretary or any Assistant Secretary of the Company,
substantially in the form and to the effect of Exhibit D-2 hereto.
6.4 Orders and Laws. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement, the Transaction Documents, the Stock Purchase Agreement or the
Financing Agreements.
6.5 Regulatory Consents and Approvals. All consents, approvals
and actions of, filings with and notices to any Governmental or Regulatory
Authority necessary to permit each of the Purchasers and the Company to perform
their respective obligations under this Agreement and the Transaction Documents
and to consummate the transactions contemplated by this Agreement, the
Transaction Documents, the Stock Purchase Agreement and the Financing Agreements
(i) shall have been duly obtained, made or given, (ii) shall be in form and
substance reasonably satisfactory to each Purchaser, (iii) shall not be subject
to the satisfaction of any condition that has not been satisfied or waived and
(iv) shall be in full force and effect, and all terminations or expirations of
waiting periods imposed by any Governmental or Regulatory Authority necessary
for the consummation of the transactions contemplated by this Agreement, the
Transaction Documents, the Stock Purchase Agreement and the Financing Agreements
shall have occurred.
-7-
6.6 Third Party Consents. All consents (or in lieu thereof
waivers) to the performance by the Purchasers and the Company of their
respective obligations under this Agreement and the Transaction Documents or to
the consummation of the transactions contemplated by this Agreement, the
Transaction Documents, the Stock Purchase Agreement or the Financing Agreements,
as are required under any Contract to which any Purchaser, the Company or any
Subsidiary is a party or by which any of their respective Assets and Properties
are bound and where the failure to obtain any such consent (or in lieu thereof
waiver) could reasonably be expected, individually or in the aggregate with
other such failures, to materially adversely affect any Purchaser or the
Business or Condition of the Company or otherwise result in a material
diminution of the benefits of the transactions contemplated by this Agreement,
the Transaction Documents, the Stock Purchase Agreement or the Financing
Agreements to any Purchaser in its sole discretion, (i) shall have been
obtained, (ii) shall be in form and substance reasonably satisfactory to each
Purchaser in its sole discretion, (iii) shall not be subject to the satisfaction
of any condition that has not been satisfied or waived and (iv) shall be in full
force and effect.
6.7 Opinion of Counsel. Each Purchaser shall have received the
opinion of Xxxxxxx, Street and Deinard, counsel to the Company, dated the
Closing Date, in substantially the form of Exhibit E hereto.
6.8 Certificate of Designation. LIH Holdings III shall have
received evidence satisfactory to it that the Series B Certificate of
Designation shall have been duly filed with the Office of the Secretary of State
of the State of Delaware and become effective in accordance with their
respective terms.
6.9 Transaction Documents. Each of the Transaction Documents
shall have been duly executed and delivered by the respective parties thereto
(other than the relevant Purchaser and, in the case of LIH Holdings III, the
other LIH Entities) and shall be in full force and effect.
6.10 Delivery of Certificates. Duly executed certificates
representing each Purchaser's Purchased Securities shall have been delivered to
such Purchaser.
6.11 Financing. The Company shall have entered into the
Financing Agreements with the other parties thereto, and the terms of each
Financing Agreement shall be reasonably satisfactory to each Purchaser.
Simultaneously with the Closing, the Company shall have received proceeds from
borrowings under the Financing Agreements and from the sale of Purchased
Securities pursuant hereto in an aggregate amount sufficient to pay the purchase
price under the Stock Purchase Agreement, together with all fees and expenses
required to be paid by the Company in connection with the closing of the
transactions contemplated hereby (including the Acquisition and the financing
thereof).
6.12 Consummation of the Acquisition. Simultaneously with the
Closing, all the conditions set forth in Section 6.3 of the Stock Purchase
Agreement shall have been satisfied and the Acquisition shall have been
consummated on the terms set forth in the Stock Purchase Agreement. None of the
terms or conditions of the Stock Purchase Agreement shall have been amended,
supplemented or otherwise modified, or waived or terminated, in any respect.
6.13 Nasdaq National Market. The Common Stock included in each
Purchaser's Purchased Securities shall have been approved for listing, subject
to notice of issuance, by the Nasdaq National Market.
6.14 Proceedings. All proceedings to be taken on the part of
the Company in connection with the transactions contemplated by this Agreement
and all documents incident thereto shall be reasonably satisfactory in form and
substance to each Purchaser, in its sole discretion, and its legal counsel, and
each Purchaser shall have received copies of all such documents and other
evidence as such Purchaser may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
VII. ARTICLE
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company hereunder are subject to the
fulfillment, at or before the Closing, of each of the following conditions (all
or any of which may be waived in whole or in part by the Company in its sole
discretion):
7.1 Representations and Warranties. Each of the
representations and warranties made by any Purchaser in this Agreement shall be
true and correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on and as of the Closing Date.
7.2 Performance. Each Purchaser shall have performed and
complied with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by such Purchaser
at or before the Closing.
7.3 Certificate. Each Purchaser shall have delivered to the
Company a certificate, dated the Closing Date and executed by a duly authorized
representative of such Purchaser, substantially in the form and to the effect of
Exhibit F attached hereto.
7.4 Orders and Laws. There shall not be in effect on the
Closing Date any Orders or Laws that became effective after the date of this
Agreement restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement, the
Transaction Documents, the Stock Purchase Agreement or the Financing Agreements.
7.5 Transaction Documents. The Transaction Documents shall
have been duly executed and delivered by the respective parties thereto other
than the Company, and shall be in full force and effect.
7.6 Financing. Simultaneously with the Closing, the Company
shall have received proceeds from borrowings under the Financing Agreements and
from the sale of Purchased Securities pursuant hereto in an aggregate amount
sufficient to pay the purchase price under the Stock Purchase Agreement,
together with all fees and expenses required to be paid by the Company in
connection with the closing of the transactions contemplated hereby (including
the Acquisition and the financing thereof).
-8-
VIII. ARTICLE
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Notwithstanding any right of any Purchaser (whether or not exercised)
to investigate the affairs of the Company or any right of any party (whether or
not exercised) to investigate the accuracy of the representations and warranties
of another party contained in this Agreement or the waiver of any condition to
Closing, each of the Company and the Purchasers has the right to rely fully upon
the representations, warranties, covenants and agreements of the others
contained in this Agreement. The representations, warranties, covenants and
agreements of the Company and each Purchaser contained in this Agreement will
survive the Closing (a) indefinitely with respect to the covenants and
agreements contained herein and the representations and warranties contained in
Sections 3.1, 3.2, 3.3, 3.4, 3.10, 4.1 and 4.4 and (b) until the third
anniversary of the Closing Date with respect to all other representations and
warranties, except that any representation or warranty that would otherwise
terminate in accordance with clause (b) above will continue to survive if a
Claim Notice or Indemnity Notice (as applicable) shall have been timely given
under Article IX on or prior to such termination date, until the related claim
for indemnification has been satisfied or otherwise resolved as provided in
Article IX, but only with respect to matters described in such Claim Notice or
Indemnity Notice.
IX. ARTICLE
INDEMNIFICATION
9.1 Indemnification. Whether or not the transactions
contemplated by this Agreement are consummated, the Company (the "Indemnifying
Party") shall indemnify each Purchaser and its Affiliates, and each of their
respective officers, directors, managers, partners, employees, agents, members,
authorized representatives and stockholders (collectively, the "Indemnified
Parties", and each, an "Indemnified Party"), in respect of, and hold each of
them harmless from and against, any and all Losses suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to (i) any misrepresentation or breach of
warranty, or any nonfulfillment of or failure to perform any covenant or
agreement, on the part of the Company contained in this Agreement, (ii) the
assertion by any Person not a party to this Agreement of any claim against an
Indemnified Party in connection with the matters or transactions that are the
subject of or contemplated by this Agreement, any of the Transaction Documents,
the Stock Purchase Agreement or any of the Financing Agreements (including any
claim asserted in any actual or threatened Action or Proceeding with respect to
(x) any use made or proposed to be made of the proceeds from the issuance or
sale of any Purchased Securities or (y) the purchase of any Purchased
Securities) and (iii) violations of applicable securities laws by the Company in
connection with the offering of any Purchased Securities; provided, however,
that the Indemnifying Party shall not have any obligations hereunder to an
Indemnified Party in respect of clause (ii) of this Section 9.1 to the extent
that a Loss claimed by such Indemnified Party thereunder is finally adjudicated
by a court of competent jurisdiction to have resulted primarily from the
negligence or wilful misconduct of such Indemnified Party. Except as otherwise
provided in Section 9.2(b), the Company shall reimburse each Indemnified Party
(whether or not such Indemnified Party is a party to this Agreement) for all
expenses (including counsel fees and disbursements) as they are incurred by such
Indemnified Party in connection with investigating and preparing or defending
any Action or Proceeding referred to above (whether or not such Indemnified
Party is a formal party to any such Action or Proceeding). If and to the extent
that the indemnification set forth herein is finally determined by a court of
competent jurisdiction to be unenforceable, the Company shall make the maximum
contribution to the payment and satisfaction of the indemnified Losses as shall
be permissible under applicable laws.
A. Method of Asserting Claims. All claims for indemnification
by any Indemnified Party under Section 9.1 will be asserted and resolved as
follows:
1. In order for an Indemnified Party to be entitled to any
indemnification provided for under Section 9.1 in respect of, arising out of or
involving a claim or demand made by any Person not a party to this Agreement
against the Indemnified Party (a "Third Party Claim"), the Indemnified Party
must deliver a claim notice (a "Claim Notice") to the Indemnifying Party within
30 Business Days after receipt by such Indemnified Party of written notice of
the Third Party Claim; provided, however, that failure to give such Claim Notice
shall not affect the indemnification provided hereunder except to the extent
that the Indemnifying Party shall have been actually prejudiced as a result of
such failure.
1. If a Third Party Claim is made against an Indemnified
Party, the Indemnifying Party shall be entitled to participate in the defense
thereof and, if it so chooses, to assume the defense thereof with counsel
selected by the Indemnifying Party, which counsel must be reasonably
satisfactory to the Indemnified Party. Subject to the next succeeding sentence,
should the Indemnifying Party so elect to assume the defense of a Third Party
Claim, the Indemnifying Party shall not be liable to the Indemnified Party for
legal expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof, but shall continue to pay for any expenses of investigation
or any Loss suffered; and if the Indemnifying Party assumes such defense, the
Indemnified Party shall have the right to participate in such defense and to
employ counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party. If (i) the Indemnifying Party shall not assume the defense
of a Third Party Claim with counsel reasonably satisfactory to the Indemnified
Party within 20 Business Days after the delivery to the Indemnifying Party of
the related Claim Notice, or (ii) legal counsel for the Indemnified Party
notifies the Indemnifying Party in writing that there are or may be legal
defenses available to the Indemnified Party or to other Indemnified Parties
which are different from or additional to those available to the Indemnifying
Party, which, if the Indemnified Party and the Indemnifying Party were to be
represented by the same counsel, would constitute a conflict of interest for
such counsel or prejudice prosecution of the defenses available to such
Indemnified Party, or (iii) the Indemnifying Party shall assume the defense of a
Third Party Claim and fail to diligently prosecute such defense, then in each
such case the Indemnified Party, by notice to the Indemnifying Party, may employ
its own counsel and control the defense of the Third Party Claim and the
Indemnifying Party shall be liable for the reasonable fees, charges and
disbursements of counsel employed by the Indemnified Party; and the Indemnified
Party shall be promptly reimbursed for any such fees, charges and disbursements,
as and when incurred. Whether the Indemnifying Party or the Indemnified Party
controls the defense of any Third Party Claim, the parties hereto shall
cooperate in the defense thereof. Such cooperation shall include the retention
and provision to the counsel of the controlling party of records and information
which are reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. The Indemnifying Party shall
have the right to settle, compromise or discharge a Third Party Claim (other
than any such Third Party Claim in which criminal conduct is alleged) without
the Indemnified Party's consent if such settlement, compromise or discharge (i)
constitutes a complete and unconditional discharge and release of the
Indemnified Party, and (ii) provides for no relief other than the payment of
monetary damages and such monetary damages are paid in full by the Indemnifying
Party. Any amounts reimbursed to any Indemnified Party hereunder with respect to
a particular Third Party Claim shall be repaid to the Indemnifying Party in the
event that it is finally adjudicated by a court of competent jurisdiction that
such Indemnified Party is not entitled to indemnification by the Indemnifying
Party with respect to such Third Party Claim.
1. In the event any Indemnified Party shall have a claim under
Section 9.1 against the Indemnifying Party that does not involve a Third Party
Claim, the Indemnified Party shall deliver an indemnity
-9-
notice (an "Indemnity Notice") with reasonable promptness to the Indemnifying
Party. The failure by any Indemnified Party to give the Indemnity Notice shall
not impair such party's rights hereunder except to the extent that the
Indemnifying Party demonstrates that it has been materially prejudiced thereby.
If the Indemnifying Party notifies the Indemnified Party that it does not
dispute the claim described in such Indemnity Notice or fails to notify the
Indemnified Party within the Dispute Period as to whether the Indemnifying Party
disputes the claim described in such Indemnity Notice, the Loss in the amount
specified in the Indemnity Notice will be conclusively deemed a liability of the
Indemnifying Party under Section 9.1 and the Indemnifying Party shall pay the
amount of such Loss to the Indemnified Party on demand. If the Indemnifying
Party has timely disputed its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if not resolved through negotiations
within the Resolution Period, such dispute shall be resolved by litigation in a
court of competent jurisdiction.
1. The rights accorded to Indemnified Parties hereunder shall be in addition to
any rights that any Indemnified Party may have at law or in equity, under
federal and state securities laws, by separate agreement (including under the
Transaction Documents) or otherwise.
I. ARTICLE
TERMINATION
A. Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
1. at any time before the Closing, by written agreement of the
Company and the Purchasers;
1. at any time before the Closing, by the Company, on the one
hand, or any Purchaser, on the other hand, (i) in the event of a material breach
hereof by any non-terminating party if such non-terminating party fails to cure
such breach within five Business Days following notification thereof by the
terminating party or (ii) upon notification of the non-terminating parties by
the terminating party that the satisfaction of any condition to the terminating
party's obligations under this Agreement becomes impossible or impracticable
with the use of commercially reasonable efforts if the failure of such condition
to be satisfied is not caused by a breach hereof by the terminating party or any
of its Affiliates; and
1. at any time after June 30, 1999, by the Company, on the one
hand, or any Purchaser, on the other hand, upon notification of the
non-terminating parties by the terminating party if the Closing shall not have
occurred on or before such date and such failure to consummate is not caused by
a breach of this Agreement by the terminating party.
A. Effect of Termination. If this Agreement is validly
terminated pursuant to Section 10.1, this Agreement will forthwith become null
and void, and there will be no liability or obligation on the part of the
Company or any Purchaser, except as provided in the next two succeeding
sentences and except that the provisions with respect to expenses in Section
11.3 will continue to apply following any such termination. Notwithstanding any
other provision in this Agreement to the contrary, upon termination of this
Agreement pursuant to Section 10.1(b) or (c), (i) the Company will remain liable
to each of the Purchasers for any misrepresentation or breach of warranty, or
any nonfulfillment of or failure to perform any covenant or agreement, on the
part of the Company existing at the time of such termination, and (ii) each of
the Purchasers will remain liable to the other parties hereto for any
misrepresentation or breach of warranty, or any nonfulfillment of or failure to
perform any covenant or agreement, on the part of such Purchaser existing at the
time of such termination. Each of the Company and the Purchasers may seek such
remedies, including damages and reimbursement for fees and expenses of
attorneys, against the others with respect to any misrepresentation, breach,
nonfulfillment or failure referred to in clause (i) or (ii) above as are
provided under this Agreement, including its remedies (if any) under Article IX
with respect thereto, or as are otherwise available at Law or in equity.
I. ARTICLE
MISCELLANEOUS
A. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission or
mailed by prepaid first class certified mail, return receipt requested, or
mailed by overnight courier prepaid, to the parties at the following addresses
or facsimile numbers:
(a) if to any Purchaser, to address for notices set forth
opposite its name in Schedule I; and
(b) if to the Company, to:
Xxxx International Holdings, Inc.
000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx 00000
Facsimile No: (000) 000-0000
Attn: Chief Executive Officer
with copies (which shall not constitute notice) to
the other Purchasers and to:
Xxxxxxx, Street and Deinard
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No: (000) 000-0000
Attn: Xxxx Xxxxx, Esq.
All such notices, requests and other communications to any party hereto will (i)
if delivered personally to such party at its address as provided in this Section
11.1, be deemed given upon delivery, (ii) if delivered by facsimile transmission
to such party at its facsimile number as provided in this Section 11.1, be
deemed given upon receipt, (iii) if delivered by mail in the manner described
above to such party at its address as provided in this Section 11.1, be deemed
given on the earlier of the third Business Day following mailing or upon receipt
and (iv) if delivered by overnight courier to such party at its address as
provided in this Section 11.1, be deemed given on the earlier of the first
Business Day following the date sent by such overnight courier or upon receipt
(in each case regardless of whether such notice, request or other communication
is received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section 11.1). Any party from time to time may change its
address, facsimile number or other
-10-
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
A. Entire Agreement. This Agreement and the Transaction
Documents supersede all prior discussions and agreements between the parties
hereto with respect to the subject matter hereof and thereof and contain the
sole and entire agreement between the parties hereto with respect to the subject
matter hereof and thereof.
A. Fees and Expenses. In the event that (i) the transactions
contemplated by this Agreement are consummated or (ii) this Agreement is
terminated other than pursuant to Section 10.1(b) by reason of a material breach
by any Purchaser, the Company shall reimburse each Purchaser for all the
reasonable fees and expenses (including the fees and expenses of counsel,
consultants and accountants), incurred by such Purchaser prior to the Closing in
connection with this Agreement, the Transaction Documents and the transactions
contemplated hereby or thereby.
A. Public Announcements. At all times at or before the
Closing, none of the Purchasers will issue or make any statements or releases to
the public with respect to this Agreement or the transactions contemplated
hereby without the consent of the Company, which consent shall not be
unreasonably withheld. If any Purchaser is unable to obtain the approval of its
public statement or release from the Company and such statement or release is,
in the opinion of legal counsel to such Purchaser, required by Law in order to
discharge such Purchaser's disclosure obligations, then such Purchaser may make
or issue the legally required statement or release and promptly furnish the
other parties hereto with a copy thereof. Each of the Purchasers will also
obtain the Company's prior approval of any press release to be issued by or on
behalf of such Purchaser following the Closing announcing the consummation of
the transactions contemplated by this Agreement.
A. Further Assurances. At any time and from time to time after
the Closing, the Company shall execute and deliver to each Purchaser such other
documents and instruments, provide such materials and information and take such
other actions as any Purchaser may reasonably request more effectively to vest
title in such Purchaser to the Purchased Securities being purchased by such
Purchaser hereunder and otherwise to cause the Company to fulfill its
obligations under this Agreement and the Transaction Documents.
A. Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition (and no
such waiver shall in any event be binding on any other party hereto that is
entitled to the benefits of such term or provision). No waiver by any party
hereto of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
A. Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
A. Third Party Beneficiaries. The terms and provisions of this
Agreement are intended solely for the benefit of the parties hereto and their
respective successors and permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights, and this Agreement does not
confer any such rights, upon any other Person other than any Person entitled to
indemnity under Article IX.
A. No Assignment; Binding Effect. Neither this Agreement nor
any right, interest or obligation hereunder may be assigned (by operation of Law
or otherwise) by the Company without the prior written consent of the
Purchasers, and any attempt to do so will be void ab initio. Neither this
Agreement nor any right, interest or obligation hereunder may be assigned by any
Purchaser without the prior written consent of the other parties hereto, and any
attempt to do so will be void ab initio; provided, however, that (a) LIH
Holdings III may, to the extent applicable, assign any or all of such right,
interest or obligation in connection with a transfer of all or any part of its
interests in the Company permitted under the Amended and Restated Governance
Agreement and (b) each Purchaser may, to the extent applicable, assign any or
all of such right, interest or obligation in connection with a transfer by it of
shares of Common Stock pursuant to Section 10.2 of the Rights Agreement. Subject
to the immediately preceding sentence, this Agreement shall bind and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns, including any holder of Purchased Securities (or any
successor securities).
A. Headings; Construction. The headings used in this Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof. The parties hereto agree that this Agreement is the
product of negotiation between sophisticated parties and individuals, all of
whom were represented by counsel, and each of whom had an opportunity to
participate in and did participate in, the drafting of each provision hereof.
Accordingly, ambiguities in this Agreement, if any, shall not be construed
strictly or in favor of or against any party hereto but rather shall be given a
fair and reasonable construction without regard to the rule of contra
proferentum.
A. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
A. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
A. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
A. Limited Recourse. Notwithstanding anything in this
Agreement (other than the proviso contained in this Section 11.14), any
Transaction Document or any other document, agreement or instrument contemplated
hereby to the contrary, the obligations of any Purchaser hereunder shall be
without recourse to any Affiliate of such Purchaser or any stockholder, partner,
member, officer, director, manager, employee or agent of such Purchaser or any
such Affiliate, and shall be limited to the assets of such Purchaser; provided,
however, that each obligation of a MassMutual Entity hereunder shall be the
joint and several obligation of all the MassMutual Entities.
A. Consent to Jurisdiction and Service of Process. EACH OF THE
COMPANY AND THE PURCHASERS CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY XX XXX XXXX, XXXXX XX
-00-
XXX XXXX, AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO
THIS AGREEMENT OR THE TRANSACTION DOCUMENTS MAY BE LITIGATED IN SUCH COURTS.
EACH OF THE COMPANY AND THE PURCHASERS ACCEPTS FOR ITSELF AND IN CONNECTION WITH
ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTION DOCUMENTS. EACH OF THE
COMPANY AND THE PURCHASERS FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO IT AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO
BECOME EFFECTIVE 15 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST
ANY OF THE OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER,
AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
[SIGNATURE PAGE TO FOLLOW]
-12-
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer or other representative of each party
hereto as of the date first above written.
XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx Vollmershausen
-----------------------------------------
Name: Xxxxxx Vollmershausen
Title: President
LIH HOLDINGS III, LLC
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ A. Xxxx Xxxxxxxx
-----------------------------------------
Name: A. Xxxx Xxxxxxxx
Title: Senior Vice President
BANCBOSTON CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO INVESTMENT AGREEMENT]
-13-
MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing is executed on behalf of MassMutual
Corporate Investors, organized under a Declaration of
Trust, dated September 13, 1985, as amended from time
to time. The obligations of such Trust are not
personally binding upon, nor shall resort be had to
the property of, any of the Trustees, shareholders,
officers, employees or agents of such Trust, but the
Trust's property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing is executed on behalf of MassMutual
Participation Investors, organized under a
Declaration of Trust, dated April 7, 1988, as amended
from time to time. The obligations of such Trust are
not personally binding upon, nor shall resort be had
to the property of, any of the Trustees,
shareholders, officers, employees or agents of such
Trust, but the Trust's property only shall be bound.
[SIGNATURE PAGE TO INVESTMENT AGREEMENT]
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By Massachusetts Mutual Life Insurance
Company, as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
[SIGNATURE PAGE TO INVESTMENT AGREEMENT]
