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EXHIBIT 10.3
PREFERRED STOCK PURCHASE AGREEMENT
Among
CLEAR HOLDINGS, INC.,
DFW CAPITAL PARTNERS, L.P.,
CLEAR INVESTORS, LLC
XXXXXXX X. XXXXXXXX, XX.
and
OTHER PERSONS ELECTING TO SUBSCRIBE
Dated as of June 24, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I. THE PREFERRED STOCK..................................................... 1
SECTION 1.01 Issuance and Sale of the Initial Shares................................. 1
SECTION 1.02 First Closing Date...................................................... 2
SECTION 1.03 Issuance and Sale of Subsequent Closing Shares.......................... 2
SECTION 1.04 Subsequent Closing Date................................................. 2
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................... 2
SECTION 2.01 Organization, Qualifications and Corporate Power......................... 2
SECTION 2.02 Authorization of Agreements, Shares and Conversion Shares................ 3
SECTION 2.03 Validity................................................................. 3
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF
THE PURCHASERS ......................................................... 4
SECTION 3.01 Investment Representation................................................ 4
ARTICLE IV. CONDITIONS ............................................................. 4
SECTION 4.01 Conditions to the Obligations of the Initial Purchasers.................. 4
SECTION 4.02 Conditions to the Obligations of the Company at the First Closing........ 5
SECTION 4.03 Conditions to the Obligations of the Subsequent Closing Purchasers....... 6
SECTION 4.04 Conditions to the Obligations of the Company at the Subsequent Closing... 6
ARTICLE V. COVENANTS OF THE COMPANY................................................ 7
SECTION 5.01 Financial Statements, Reports, Etc....................................... 7
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ARTICLE VI. MISCELLANEOUS........................................................... 8
SECTION 6.01 Survival of Agreements................................................... 8
SECTION 6.02 Brokerage................................................................ 9
SECTION 6.03 Parties in Interest...................................................... 9
SECTION 6.04 Certain Consents and Waivers............................................. 9
SECTION 6.05 Notices.................................................................. 9
SECTION 6.06 Assignability............................................................ 10
SECTION 6.07 Entire Agreement......................................................... 10
SECTION 6.08 LAW GOVERNING............................................................ 10
SECTION 6.09 Counterparts............................................................. 10
TESTIMONIUM.................................................................................... 12
INDEX TO EXHIBITS
Section
Exhibit Description Reference
------- ----------- ---------
EXHIBIT A Form of Amendment 2.01(a)
to Registration Rights Agreement
EXHIBIT B Form of Amendment 2.01(a)
to Voting and Co-Sale Agreement
EXHIBIT C List of Eligible Holders 1.03
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PREFERRED STOCK PURCHASE AGREEMENT, dated as of June 24, 1999,
(the "Agreement") between CLEAR HOLDINGS, INC., a Georgia corporation (the
"Company"), and DFW CAPITAL PARTNERS, L.P., a Delaware limited partnership
("DFW"), Clear Investors, LLC, a Georgia limited liability company ("LLC",
Xxxxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx") (LLC, together with DFW, collectively the
"Initial Purchasers") and such other persons who elect to purchase Shares
pursuant to this Agreement (collectively, the "Subsequent Closing Purchasers"
and, together with the Initial Purchasers, collectively the "Purchasers").
WHEREAS, the Company wishes to issue and sell to the
Purchasers up to 30,000 shares (the "Shares") of Series C Convertible Preferred
Stock, no par value (the "Series C Preferred Stock"), of the Company
WHEREAS, in order to induce the Purchasers to enter into this
Agreement and consummate the transactions contemplated hereby the Company wishes
to enter into this Agreement and make the representations, warranties, covenants
and agreements set forth herein.
WHEREAS, each of the Initial Purchasers wish to purchase, and
the Company wishes to sell to each Initial Purchaser, 5,000 Shares (such
aggregate 10,000 Shares to be purchased by the Initial Purchasers being herein
called the "Initial Shares").
WHEREAS, the Company wishes to offer certain holders of
outstanding Common Stock, $.0001 par value, of the Company ("Common Stock") or
outstanding options to purchase Common Stock, as well as other persons who are
"Accredited Investors" as defined in Rule 501 under the Securities Act of 1933,
as amended, the right to purchase up to an aggregate of 20,000 Shares, such
right to be exercisable by such holders, in the event of over-subscription, pro
rata according to the respective numbers of shares and options held by them. The
Shares purchased by such holders and other purchasers are sometimes herein
called the "Subsequent Closing Shares".
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereby agree as follows:
I.
THE SHARES
SECTION 1.01 Issuance and Sale of the Initial Shares. (a)
Subject to the terms and conditions set forth herein, on the Closing Date (as
defined herein) the Company shall issue and sell to each Initial Purchaser, and
each Initial Purchaser shall purchase from the Company, 5,000 Shares and the
Company shall issue and deliver to each Initial Purchaser certificates in
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definitive form, registered in the name of such Initial Purchaser, evidencing
the Shares purchased by such Initial Purchaser.
(b) As payment in full for the Initial Shares purchased
by it, and against delivery of the certificates for such Shares as aforesaid,
each Initial Purchaser shall tender to the Company $500,000 aggregate principal
amount of promissory notes of the Company or Clear Communications Group, Inc.
for credit toward such purchase price at 100% of principal amount. The Company
will on the First Closing Date pay all accrued interest on notes tendered in
payment for the Initial Shares. Each Initial Purchaser may elect to apply such
accrued interest to the purchase of additional Shares at the First Closing or
any Subsequent Closing.
SECTION 1.02 First Closing Date. The closing of the sale and
purchase of the Initial Shares shall take place at the offices of Xxxxx,
Xxxxxxxx & Xxxxxxx, LLP, Suite 3100, Promenade II, 0000 Xxxxxxxxx Xxxxxx, XX,
Xxxxxxx, Xxxxxxx 00000, on June 24, 1999 or at such other date and time as may
be mutually agreed upon between the Initial Purchasers and the Company (such
date and time of closing being herein called the "First Closing Date").
SECTION 1.03 Issuance and Sale of Subsequent Closing Shares.
Each holder of Common Stock or outstanding options (whether or not vested)
("Options") to purchase Common Stock of the Company listed in Exhibit C
(collectively, the "Eligible Holders") shall have the right, by delivery of
notice to the Company not later than July 7, 1999, to purchase such holder's pro
rata share (based on all Eligible Holders' holdings of Common Stock and Options)
at a purchase price of $100 per share, of the Subsequent Closing Shares. In the
event the Subsequent Closing Shares are not fully subscribed, purchasing
Eligible Holders and other purchasers, including the Initial Purchasers, shall
have the right to elect to purchase additional Subsequent Closing Shares.
SECTION 1.04 Subsequent Closing Dates. The closing of the sale
and purchase of the Subsequent Closing Shares shall take place at the offices of
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, Suite 3100, Promenade II, 0000 Xxxxxxxxx Xxxxxx,
XX, Xxxxxxx, Xxxxxxx 00000, on July 8, 1999, in the case of purchase by Eligible
Holders, and on July 30, 1999 in the case of purchase by other holders, or at
such other dates and times as may be specified by the Company by notice to the
Subsequent Closing Purchasers (each such date and time of closing being herein
called a "Subsequent Closing Date").
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II.
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to each Purchaser as
follows:
SECTION 2.01 Organization, Qualifications and Corporate Power.
The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of Georgia. The Company has the corporate power and
authority (i) to own and hold its properties; (ii) to carry on its business as
currently conducted and as proposed to be conducted; (iii) to execute, deliver
and perform its obligations under this Agreement, the Amendment to Registration
Rights Agreement, the form of which is attached hereto as Exhibit A (the
"Registration Rights Amendment"); (iv) the Amended and Restated Voting and
Co-Sale Agreement, the Form of which is attached hereto as Exhibit B (the
"Voting and Co-Sale Agreement"); and (v) to issue, sell and deliver the Shares
and the shares of Common Stock issuable upon conversion of the Shares (the
"Conversion Shares").
SECTION 2.02 Authorization of Agreements, Shares and
Conversion Shares. (a) The execution, delivery and performance by the Company of
this Agreement, the Registration Rights Amendment and the Voting and Co-Sale
Agreement, the issuance and sale of the Shares and the issuance and delivery of
the Conversion Shares upon conversion of the Shares have been duly authorized by
all requisite corporate action. The execution, delivery and performance by the
Company of this Agreement, the Registration Rights Amendment and the Voting and
Co- Sale Agreement, the issuance and delivery of the Shares and the issuance and
delivery of the Conversion Shares upon conversion of the Shares will not (i)
violate any provision of law, any order of any court or other agency of
government, the Articles of Incorporation or By-laws of the Company, or any
provision of any material indenture, agreement or other instrument by which the
Company or and of its subsidiaries or any of their respective properties or
assets is bound or affected; (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
material indenture, agreement or other instrument; (iii) result in the creation
or imposition of any material lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company in any
Subsidiary, except for such violations, conflicts or defaults which have been
waived or consented to by the appropriate party or parties to such indenture,
agreement or instrument.
(b) The Shares, when issued against payment in accordance
with this Agreement, will be duly authorized, validly issued and outstanding,
fully paid and non-assessable. The Conversion Shares have been duly reserved by
the Company for issuance upon conversion of the Shares and, when so issued and
delivered upon conversion of the Shares, will be duly authorized, validly issued
and outstanding, fully paid and nonassessable shares of Common Stock. The
issuance, sale and delivery of the Shares nor the issuance and delivery of the
Conversion Shares upon conversion of the Shares is not subject to any preemptive
rights of
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shareholders of the Company or to any right of first refusal or other similar
right in favor of any person, except for the preemptive rights of holders of the
Company's Class A Convertible Preferred Stock and the rights of certain holders
under the Shareholders Agreement dated as of November 20, 1997, all of which
have been waived pursuant to Section 6.04 hereof.
SECTION 2.03 Validity. This Agreement has been duly executed
and delivered by the Company and constitutes, and the Registration Rights
Amendment and the Voting and Co-Sale Agreement, when executed and delivered as
contemplated by this Agreement, will constitute, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to applicable bankruptcy, reorganization,
insolvency and other limitations on creditors' rights generally, and to general
equitable principles.
III.
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
As an inducement to the Company to enter into this Agreement
and to consummate the transactions contemplated hereby, and with knowledge that
the Company shall reply thereon, each Purchaser represents and warrants to the
Company, severally and not jointly, the following:
SECTION 3.01 Investment Representation. Such Purchaser is
acquiring the Shares and will, upon conversion of the Shares, acquire the
Conversion Shares for its, his or her own account for the purpose of investment
and not with a view to or for sale in connection with any distribution thereof.
Such Purchaser further represents that he, she or it understands that (i) none
of the Shares or the Conversion Shares have been registered under the Securities
Act by reason of their issuance in a transaction exempt from the registration
requirements of the Securities Act pursuant to Section 4(2) thereof; (ii) the
Shares and, upon conversion thereof, the Conversion Shares must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration; (iii) the Shares and the
Conversion Shares will bear a legend to such effect; and (iv) the Company will
make a notation on its transfer books to such effect. Such Purchaser further
understands that the exemption from registration afforded by Rule 144 under the
Securities Act depends on the satisfaction of various conditions and that, if
applicable, Rule 144 affords the basis of sales of the Shares and/or the
Conversion Shares in limited amounts under certain conditions.
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IV.
CONDITIONS
SECTION 4.01 Conditions to the Obligations of the Initial
Purchasers. The obligation of the Initial Purchasers to purchase and pay for the
Initial Shares on the First Closing Date is, at the option of the Purchasers,
subject to the satisfaction, on or prior to the First Closing Date, of each of
the following conditions:
(a) Representations and Warranties to Be True and
Correct. The representations and warranties contained in Article II
hereof shall be true and correct in all material respects on and as of
the First Closing Date with the same effect as though such
representations and warranties had been made on and as of such date,
and if requested by the Initial Purchasers, the Company shall have
certified to such effect to the Initial Purchasers in writing.
(b) Performance. The Company shall have performed and
complied in all material respects with all agreements and conditions
contained herein and required to be performed or complied with by it
prior to or at the Closing Date, and, if requested by the Purchaser,
the Company shall have certified to such effect to the Purchasers in
writing.
(c) All Proceedings to Be Satisfactory. All corporate and
other proceedings to be taken by the Company in connection with the
transactions contemplated hereby and all documents incident thereto,
shall be reasonably satisfactory in form and substance to the
Purchasers and their counsel, and the Initial Purchasers and said
counsel shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request.
(d) Fleet Consent. Fleet National Bank shall have
consented to the transactions contemplated by this Agreement.
(e) Opinion of Company Counsel. The Initial Purchasers
shall have received an opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, L.L.P. as
to the matters referred to in Sections 2.01 and 2.02, in form, scope
and substance reasonably satisfactory to the Initial Purchasers and
their counsel.
(f) Registration Rights Amendment and Voting and Co-Sale
Agreement. The Registration Rights Amendment and Voting and Co-Sale
Agreement shall have been executed and delivered by the Company, and
the same shall be in full force and effect on the Closing Date.
(g) SBA Forms. The Company shall have executed and
delivered to the Purchaser for redelivery to the Small Business
Administration ("SBA") SBA Form 480
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(Size Status Declaration) and SBA Form 652 (Assurance of Compliance For
NonDiscrimination), and shall have provided the Purchaser with
sufficient information to enable such Purchaser to accurately complete
and deliver SBA Form 1031 (Portfolio Financing Report) to the SBA.
SECTION 4.02 Conditions to the Obligations of the Company at
the First Closing. The obligation of the Company to issue and sell the Initial
Shares to the Initial Purchasers on the First Closing Date is, at the Company's
option, subject to the satisfaction, on or before such date of the following
conditions:
(a) Representations and Warranties to Be True and
Correct. The representations and warranties of the Initial Purchasers
contained in Article III hereof shall be true and correct in all
material respects on and as of the First Closing Date with the same
effect as though such representations and warranties had been made on
and as of such date, and, if requested by the Company, the Initial
Purchasers shall have certified to such effect to the Company in
writing.
(b) Performance. The Initial Purchasers shall have
performed and complied in all material respects with all agreements and
conditions contained herein required to be performed or complied with
by them prior to or at the Closing Date, and if requested by the
Company the Initial Purchasers shall have certified to such effect to
the Company in writing.
(c) Registration Rights Amendment and Voting and Co-Sale
Agreement. The Registration Rights Amendment and Voting and Co-Sale
Agreement shall have been executed and delivered by the Initial
Purchasers.
(d) Fleet Consent. Fleet National Bank shall have
consented to the transactions contemplated by this Agreement.
SECTION 4.03 Conditions to the Obligations of Each of the
Subsequent Closing Purchasers. The obligation of the Subsequent Closing
Purchasers to purchase and pay for Subsequent Closing Shares on each Subsequent
Closing Date is, at the option of the Company, subject to the satisfaction, on
or prior to each Subsequent Closing Date, of each of the following conditions:
(a) Representations and Warranties to Be True and
Correct. The representations and warranties contained in Article II
hereof shall be true and correct in all material respects on and as of
each Subsequent Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
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(b) Performance. The Company shall have performed and
complied in all material respects with all agreements and conditions
contained herein and required to be performed or complied with by it
prior to or at such Subsequent Closing Date.
(c) All Proceedings to Be Satisfactory. All corporate and
other proceedings to be taken by the Company in connection with the
transactions contemplated hereby and all documents incident thereto,
shall be reasonably satisfactory in form and substance to the
Subsequent Closing Purchasers.
SECTION 4.04 Conditions to the Obligations of the Company at
Each Subsequent Closing. The obligation of the Company to issue and sell
Subsequent Closing Shares to the Subsequent Closing Purchasers on each
Subsequent Closing Date is, at the Company's option, subject to the
satisfaction, on or before such date of the following conditions:
(a) Representations and Warranties to Be True and
Correct. The representations and warranties of the Subsequent Closing
Purchasers purchasing on such Subsequent Closing Date contained in
Article III hereof shall be true and correct in all material respects
on and as of such date with the same effect as though such
representations and warranties had been made on and as of such date.
(b) Performance. The Subsequent Closing Purchasers
purchasing on such Closing Date shall have performed and complied in
all material respects with all agreements and conditions contained
herein required to be performed or complied with by them prior to or at
such date.
(c) Registration Rights Amendment and Voting and Co-Sale
Agreement. The Registration Rights Amendment and Voting and Co-Sale
Agreement shall have been executed and delivered by the Subsequent
Closing Purchasers purchasing on such Closing Date.
(d) Questionnaire. Each Subsequent Closing Purchaser
purchasing on such Closing Date shall have executed and delivered to
the Company an Accredited Investor Questionnaire, and the Company and
its counsel shall be satisfied with such questionnaires and all matters
pertaining to the Company's compliance with applicable federal and
state securities laws.
V.
COVENANTS OF THE COMPANY
SECTION 5.01. Financial Statements, Reports, Etc. The Company
covenants and agrees that so long as any Initial Purchaser shall hold at least
25% of the Shares acquired by
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it pursuant to this Agreement, or any person acquiring, directly or indirectly,
Shares from an Initial Purchaser shall hold an equivalent number of Shares, the
Company will furnish each such Initial Purchaser or subsequent holder each of
the items listed in this Section 5.01.
(a) Within 90 days after the end of each fiscal year of
Company, a consolidated balance sheet of Company and any subsidiaries as of the
end of such fiscal year and the related consolidated statements of operations,
shareholders' equity and cash flows of Company and any subsidiaries for the
fiscal year then ended, together with an auditor's management letter and
supporting notes thereto, certified without qualification as to scope of audit
by a firm of independent public accountants of recognized national standing
selected by Company and reasonably acceptable to a majority in interest of the
Purchasers or such subsequent holders;
(b) within 30 days after the end of each month in each
fiscal year, consolidating and consolidated balance sheets of Company and any
subsidiaries and the related consolidating and consolidated statements of
operations and cash flows (including comparisons therein to historical results
from the corresponding month in the prior year), unaudited but certified by the
principal financial officer of Company, such balance sheets to be as of the end
of such month and such statements of income to be for such month and for the
period from the beginning of the fiscal year to the end of such month, in each
case subject to normal year-end audit adjustments;
(c) not less than quarterly, a certificate by the
principal financial officer of Company stating the amount of available
borrowings under Company's senior credit facility and either certifying
compliance by Company with its covenants and obligations under such credit
facility or describing in reasonable detail any instances of non-compliance by
Company thereunder;
(d) within 15 days prior to the beginning of each fiscal
year of Company (and with respect to any revision thereof, promptly after such
revision has been prepared), a proposed operating budget for Company (or for
Company and any subsidiaries) including projected monthly income statements,
cash flow statements during such fiscal year and a projected balance sheet as of
the end of such fiscal year, and each monthly financial statement furnished
pursuant to (b) above shall reflect variances from such operating budget, as the
same may from time to time be revised;
(e) promptly upon filing, copies of all registration
statements, prospectuses, periodic reports and other documents filed by Company
with the Securities and Exchange Commission;
(f) (A) promptly upon receipt, all notices or reports
from any lenders regarding compliance deficiencies and (B) prompt notice
concerning material litigation, any other events that may have a material
adverse effect on the business, properties, operations, condition (financial or
otherwise) or prospects of the Company and its subsidiaries, taken as a whole;
and any default or event of default under any credit facility of the Company or
any subsidiary;
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(g) promptly, but in any event within 10 days upon
entering into any letter of intent or negotiations regarding an acquisition of,
investment in or merger with a third party, such information concerning such
proposed transaction as would be reasonably required for the Purchaser to
evaluate the transaction and the effect thereof upon the Purchaser's investment
in the Company; and
(h) by Wednesday of each week, the weekly sales and cash
collections/disbursements flash report for the preceding week.
The term "subsidiary" as used herein shall mean any corporation or other
business entity a majority of whose outstanding voting stock entitled to vote
for the election of directors is at the time owned by Company and/or one or more
other subsidiaries.
VI.
MISCELLANEOUS
SECTION 6.01 Survival of Agreements. All covenants,
agreements, representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
SECTION 6.02 Brokerage. The Company, on the one hand, and the
Purchasers, on the other hand (severally and not jointly), agree to indemnify
and hold each other harmless against and in respect of any claim for brokerage
or other commissions relative to this Agreement or to the transactions
contemplated hereby, based in any way on agreements, arrangements or
understandings made or claimed to have been made by such party with any third
party.
SECTION 6.03 Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
SECTION 6.04 Certain Consents and Waivers. DFW, as holder of
all outstanding shares of the Company's Class A Convertible Preferred Stock,
hereby (i) consents to the issuance of the Shares and (ii) waives its preemptive
rights with respect to the issuance and sale of the Shares. Xxxxxxxx, as the
holder of a majority of the outstanding Common Stock of the Company, hereby
approves the transactions contemplated by this Agreement for all purposes of the
Shareholders Agreement dated as of November 20, 1997 among Xxxxxxxx, Clear
Communications Group, Inc. and certain other parties.
SECTION 6.05 Notices. All notices, consents and other
communications hereunder (i) shall be in writing, (ii) shall be addressed to the
parties as indicated below, unless notified in writing of a change in address,
and (iii) shall be deemed to have been given either
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when (w) personally delivered to the recipient, (x) sent to the recipient by a
nationally recognized express courier service (charges prepaid), (y) mailed by
certified or registered mail, return receipt requested and postage prepaid, or
(z) sent by facsimile to the recipient followed by the sending of a copy of such
notice in a manner described above, as follows:
(a) if to the Company, to it at:
Clear Holdings, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No. (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxx 0000, Xxxxxxxxx XX
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx Xxxxxxxx, Esq.
Facsimile No. (000) 000-0000
(b) if to the DFW Capital Partners, to it at:
DFW Capital Partners, L.P.
000 Xxxxx X. Xxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxxx Xxxx - 0xx Xx.
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile No. (000) 000-0000
with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
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(c) if to Clear Investors, LLC, to it at:
c/o Xxxxxxx X. Xxxxxxxx, Xx.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
(d) If to any Subsequent Closing Purchaser or if to any
subsequent holder of the Shares or the Conversion
Shares, to such person at its address appearing on the
stock transfer records of the Company.
SECTION 6.06 Assignability. Neither this Agreement nor any of
the parties' rights hereunder shall be assignable by any party hereto without
the prior written consent of the other parties hereto.
SECTION 6.07 Entire Agreement. This Agreement, its Exhibits
and Schedules, and all other documents executed on the First or Subsequent
Closing Dates in connection herewith, constitute the entire Agreement of the
parties with respect to the subject matter hereof and may not be modified or
amended except in writing.
SECTION 6.08 LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
SECTION 6.09 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Initial Purchasers
have caused this Agreement to be executed as of the day and year first above
written. Subsequent Closing Purchasers shall become parties to this Agreement by
executing and delivering a counterpart of this Agreement with their name and the
number of Subsequent Closing Shares filled in, but this Agreement shall not be
effective as to any such Subsequent Closing Purchaser until the Company has
delivered a counterpart hereof to such Subsequent Closing Purchaser with the
Company's acceptance endorsed hereon.
CLEAR HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: President
--------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
INITIAL PURCHASERS:
DFW CAPITAL PARTNERS, L.P.
By Capital Partners - GP, L.P.,
General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
General Partner
CLEAR INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Managing Member
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Number of
Subsequent Closing Subsequent Closing Company
Shares Purchasers Acceptance
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