Exhibit 2.8
Execution Copy Original
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into this _____
day of July, 1997 by and among Xxxxxx International Group, Inc., an Indiana
corporation ("SIG"), and GS Capital Partners II, L.P., a Delaware limited
partnership ("GSCP"), GS Capital Partners Offshore, L.P., a Cayman Island
limited partnership ("Offshore"), Xxxxxxx, Sachs & Co. XxxXxxxxxx XxxX
("XxxXxxxxxx"), Xxxxx Xxxxxx Xxxxx 0000, L.P., a Delaware limited partnership
("Stone Street", and Bridge Street Funds 1996, L.P., a Delaware limited
partnership ("Xxxxxx Xxxxxx") (Xxxxxxxx, XxxXxxxxxx, Stone Street and Bridge
Street are collectively referred to as the "Affiliates").
WITNESSETH:
There are currently issued and outstanding 1,106,625 common shares
("Shares") of GGS Management Holdings, Inc., a Delaware corporation ("GGSM");
and
WHEREAS, SIG owns 575,445 Shares; and
WHEREAS, GSCP and the Affiliates own in the aggregate 531,180 Shares,
which are owned as follows:
Company Shares
GS Capital Partners II, L.P. 333,277.8
GS Capital Partners Offshore, L.P. 132,491.7
Xxxxxxx Xxxxx & Co VerWaltung GmbH 12,292.6
Xxxxx Xxxxxx Xxxxx 0000, X.X. 31,652.4
Xxxxxx Xxxxxx Xxxxx 0000, X.X. 21,465.5
and;
WHEREAS, SIG desires to purchase, and GSCP and the Affiliates desire to
sell, the 531,180 Shares of GGSM currently owned in the aggregate by GSCP and
Affiliates; and
WHEREAS, the parties hereto have agreed that the aggregate purchase
price for such Shares shall be Sixty-One Million Dollars ($61,000,000.00) (the
"Purchase Price"); and
WHEREAS, GSCP understands and agrees that SIG intends to finance the
Purchase Price from the proceeds received by SIG from an issuance of notes (the
"Note Financing"); and
-1-
WHEREAS, the parties hereby agree that upon the completion of the
purchase of such Shares, the parties hereto shall relinquish all rights to any
and all prior agreements and understandings executed by the parties prior to the
date hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and subject to the terms and conditions hereof, the
parties hereto agree as follows:
Section 1
Purchase of Shares
1.1 GSCP and the Affiliates hereby agree to sell, and SIG hereby agrees
to purchase, in the aggregate, Five Hundred Thirty-One Thousand, One Hundred
Eighty (531,180) Shares of GGSM ("The Stock") for the aggregate purchase price
of Sixty-One Million Dollars ($61,000,000.00).
1.2 Subject to Section 6 hereof, the closing of the purchase
contemplated herein (the "Closing") shall occur simultaneously with the closing
of the Note Financing; provided, however, that, should the Note Financing not
occur, SIG may, at its option, schedule the Closing at any time prior to
September 30, 1997 upon ten (10) days' advance written notice.
Section 2
Closing
2.1 At the Closing, SIG shall pay the Purchase Price to the account or
accounts which shall be designated by GSCP at least ten (10) days prior to the
Closing. GSCP and the Affiliates shall deliver The Stock at the Closing, duly
endorsed by GSCP or an Affiliate, as appropriate, transferring The Stock to SIG,
free and clear of all liens, encumbrances, pledges, voting agreements,
contractual rights or other claims of any nature whatsoever with respect to The
Stock.
Section 3
Representations and Warranties of GSCP
GSCP and the Affiliates, jointly and severally, represent and warrant
to SIG as follows:
3.1 GSCP and the Affiliates are duly organized, validly existing and in
good standing under the applicable laws of their jurisdiction of formation. GSCP
and the Affiliates have the requisite partnership or corporate power and
authority, as appropriate, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of,
and the performance by each of GSCP and the Affiliates of its obligations under
this Agreement have been duly and validly authorized by all necessary
partnership or corporate action, as appropriate, on the part of each of GSCP and
the Affiliates. No other corporate, shareholder or partnership approval on the
part of any of GSCP or the Affiliates is necessary for any of GSCP or the
Affiliates to enter into this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by each of GSCP and the
-2-
Affiliates and constitutes its valid and binding obligations, enforceable
against them in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar law
affecting creditors' rights generally and subject to the effect of general
principles of equity.
3.2 At the Closing, GSCP and the Affiliates will deliver The Stock free
and clear of all liens, claims, demands and encumbrances whatsoever with respect
to the stock.
3.3 The execution and delivery of this Agreement by GSCP and the
Affiliates will not, and the consummation of the transactions contemplated by
this Agreement and the compliance with the terms, conditions and provisions of
this Agreement by GSCP and the Affiliates will not, (i) violate or conflict with
any provision of the articles of incorporation, bylaws, partnership agreements
or other organizing documents of GSCP or the Affiliates; or (ii) conflict with
or result in the breach or termination of, or otherwise give any contracting
party the right to change the terms of, or to terminate or accelerate the
maturity of, or constitute a default under the terms of, any indenture,
mortgage, loan or credit agreement or any other material agreement or instrument
to which any of GSCP and/or the Affiliates is a party or by which any of them or
any of their assets may be bound or affected, except to the extent that any of
the foregoing would not materially impact GSCP and its Affiliates' ability to
perform their obligations hereunder. Further, GSCP and the Affiliates represent
and warrant that the execution and delivery of this Agreement by GSCP and the
Affiliates will not result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the Shares or give to others
(other than SIG) any interest or rights therein.
3.4 GSCP and the Affiliates have not made any agreement or taken any
other action which might cause any person or entity to become entitled to a
broker's fee or commission as a result of the transactions contemplated in this
Agreement.
3.5 There are no actions, suits, investigations or proceedings of any
nature pending or, to the knowledge of GSCP and the Affiliates, threatened,
against GSCP or the Affiliates (x) affecting The Stock, or (y) that would be
reasonably likely to impair GSCP and the Affiliates' ability to consummate the
obligations hereunder, at law or in equity, by or before any court or
governmental department, agency or instrumentality.
3.6 GSCP and the Affiliates will deliver to SIG at the Closing good
title to The Stock. GSCP and the Affiliates will transfer The Stock to SIG at
the Closing free and clear of all claims, liens, demands and encumbrances
whatsoever with respect to the Stock.
3.7 GSCP and the Affiliates hereby agree that they will not, disclose
or reveal to any individual (other than to officers, directors, and employees of
GSCP and its affiliates), corporation, partnership, association, entity or
business, any proprietary or confidential technology, trade secret, confidential
information, data, processes, strategies, techniques, philosophies or software,
other proprietary intellectual property or other proprietary or confidential
information (collectively, "Confidential Information") used by SIG in any of its
businesses and GSCP and the Affiliates hereby agree that the Confidential
Information is the exclusive property of SIG and/or its subsidiaries.
-3-
3.8 GSCP and the Affiliates have not, and hereby agree that, for three
years from the date hereof, they will not, directly (for themselves or others),
employ, offer employment to, or solicit the services of any current or future
employee of SIG or any subsidiary of SIG while such individual is in the employ
of SIG or any subsidiary of SIG.
Section 4
Representations and Warranties of SIG
SIG hereby represents and warrants to GSCP and the Affiliates as
follows:
4.1 SIG is a corporation duly organized, validly existing and in good
standing under the laws of the State of Indiana, and SIG has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of,
and the performance by SIG of its obligations under, this Agreement have been
duly and validly authorized by all necessary corporate action on the part of
SIG. No other corporate or shareholder proceedings on the part of SIG are
necessary to approve this Agreement or consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by SIG
and constitutes SIG's valid and binding obligation, enforceable against SIG in
accordance with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar law affecting creditors'
rights generally and subject to the effect of general principles of equity.
4.2 The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms, conditions and provisions of this Agreement by SIG
will not, (i) violate or conflict with any provision of SIG's charter, articles
of incorporation, bylaws or other governing documents; or (ii) conflict with or
result in a breach or termination of, or otherwise give any contracting party
the right to change the terms of, or to terminate or accelerate the maturity of,
or constitute a default under the terms of, any indenture, mortgage, loan or
credit agreement or any other material agreement or instrument to which SIG or
any of its affiliates is a party or by which any of them or their assets are
bound, except to the extent that any of the foregoing would not materially
impact SIG's ability to perform its obligations hereunder.
4.3 The purchase by SIG of The Stock pursuant to this Agreement does
not require any consent, approval or authorization of, any governmental or
regulatory authority.
4.4 SIG has not made any agreement or taken any other action which
might cause anyone to become entitled to a broker's fee or commission as a
result of the transactions contemplated hereby.
4.5 There are no actions, suits, proceedings or investigations of any
nature pending, or to the knowledge of SIG, threatened, against SIG or any of
its affiliates and no other events have occurred or are reasonably likely to
occur, in each case which would be reasonably likely to
-4-
materially impair SIG's ability to consummate the Note Offering or perform its
obligations hereunder.
4.6 Neither SIG, nor any of its affiliates, has attempted to contact,
contacted, held discussions with, conducted negotiations with, or entered into
any agreement or undertaking (whether oral or written) with, any party
concerning the sale, transfer or other disposal, or potential sale, transfer or
other disposal, of any of the shares of capital stock (whether by way of merger,
consolidation or otherwise) of GGSM, GGS Management, Inc., Superior Insurance
Company or Pafco General Insurance Company. Notwithstanding any other provision
of this Agreement, SIG shall only be responsible for the accuracy of this
representation up through and including the Closing.
Section 5
Cancellation of Agreements
5.1 The parties hereto agree that, if the Closing occurs, all
Shareholder Agreements (as hereinafter defined) entered into between the parties
hereto prior to the date hereof shall become null, void and of no effect as of
the date of Closing. Such agreements include, but are not limited to, a Stock
Purchase Agreement dated as of January 31, 1996 and the three amendments
thereto, the Amended and Restated Stockholder Agreement dated as of November 8,
1996 including any and all amendments thereto, the Registration Rights Agreement
dated as of April 30, 1996 and any and all letter agreements between the parties
executed prior to the date hereof ("Shareholder Agreements").
Section 6
Conditions To Closing
6.1 The obligations of SIG to proceed with the Closing under this
Agreement are subject to the fulfillment prior to or at Closing of the following
conditions (any one or more of which may be waived in whole or in part by SIG at
SIG's option):
a. The representations and warranties of GSCP and the
Affiliates contained in this Agreement shall be true
and correct in all material respects on and as of the
date of Closing with the same force and effect as if
those representations and warranties had been made
on, or as of, such date and SIG shall have received a
certificate to such effect signed by an authorized
officer, partner or other authorized signatory of
GSCP and the Affiliates.
b. GSCP and the Affiliates shall have performed in all
material respects all of their covenants and complied
with all of the provisions required by this Agreement
to be performed or complied with by them on or before
the Closing, and SIG shall have received a
certificate to such effect signed by an authorized
officer, partner or other authorized signatory of
GSCP and/or the Affiliates.
-5-
c. No order of any court or administrative agency shall
be in effect with enjoins or prohibits the
transactions contemplated hereby.
d. GSCP and the Affiliates shall have delivered to SIG
copies, certified by the duly qualified and acting
Secretary, Assistant Secretary, partner or other
authorized signatory of GSCP and/or the Affiliates,
of resolutions adopted by the appropriate governing
body of GSCP and the Affiliates approving this
Agreement and the consummation of the transactions
contemplated hereby.
e. SIG shall have completed the Note Financing.
f. GSCP and the Affiliates shall execute such further
instruments of conveyance and transfer as SIG may
reasonably request to convey and transfer The Stock
to SIG.
g. GSCP and the Affiliates shall execute at Closing the
mutual general release in the form attached hereto as
Exhibit A and made a part hereof by reference.
6.2 The obligations of GSCP and the Affiliates to proceed with the
Closing under this Agreement are subject to the fulfillment prior to or at
Closing of the following conditions (any one or more of which may be waived in
whole or in part by GSCP at its option):
a. The representations and warranties of SIG contained
in this Agreement shall be true and correct in all
material respects (except that the representation
contained in Section 4.6 shall be true in all
respects) on and as of the date of Closing with the
same force and effect as those such representations
and warranties had been made on, as of, and with
reference to, such date, and GSCP and the Affiliates
shall have received a certificate to such effect
signed by an authorized officer of SIG.
b. SIG shall have performed in all material respects all
of the covenants and complied with all of the
provisions required by this Agreement to be performed
or complied by them on or before the Closing, and
GSCP and the Affiliates shall have received a
certificate to such effect signed by an authorized
officer of SIG.
c. SIG shall execute at Closing the mutual general
release in the form attached hereto as Exhibit A and
made a part hereof by reference (the "Release").
-6-
Section 7
Indemnification
7.1 a. The parties hereto hereby each agree to indemnify, defend and hold
harmless the other from and against any loss, liability, claim, action,
obligation, damage, deficiency, judgment, costs and expenses (including
reasonable attorneys' fees and expenses incurred in the investigating,
preparing or defending any litigation or proceeding commenced or
threatened)("Damage") arising out of or resulting from any
misrepresentation, breach of warranty or non-fulfillment of any covenant
on the part of such party as shall be contained in this Agreement
b. Following the Closing, SIG shall indemnify and hold harmless GSCP and the
Affiliates and each of the officers, directors, employees, representatives
and agents of GSCP and the Affiliates, including the present directors
(each as "Indemnified Director") of GGSM and its subsidiaries designated
by GSCP and/or the Affiliates (each of the foregoing, including the
Indemnified Directors, an "Indemnified Party"), against all Damages
suffered by an Indemnified Party arising out of, relating to, or
resulting from, any claim, action, suit, proceeding or investigation
arising out of, relating to, or resulting from, the fact that such
Indemnified Party or any of its affiliates, or any entity of or for which
he or she is a director, officer, employee, representative agent,
was a shareholder or director of GGSM and/or any of its subsidiaries.
Without limiting SIG's and its subsidiaries' obligations pursuant to the
prior sentence, SIG agrees that it will cause GGSM to maintain in effect
for a period of three years following the Closing all rights to
indemnification and all limitations of liability existing as of the date
hereof in favor of the Indemnified Directors in GGSM's and its direct or
indirect subsidiaries' Certificates of Incorporation and Bylaws. SIG
shall use its best efforts to cause the Indemnified Directors to be
covered for a period of three years after the Closing by the directors'
and officers' insurance policy currently maintained by GGSM (provided
that SIG may permit GGSM to substitute therefor policies of at lease the
same coverage and amount containing terms and conditions which are not
less advantageous to the Indemnified Directors than the terms and
conditions of such existing policy) with respect to acts or omissions
which are or were committed by the Indemnified Directors in their
capacity as directors of GGSM.
7.2 Notwithstanding anything contained herein, no action or claim for
Damage resulting from any breach of the representations and warranties contained
herein shall be brought or made after December 31, 1998.
7.3 Any indemnification payment made pursuant to this Agreement shall
be increased by any federal, state, local or foreign tax liability actually
incurred, or expected with reasonable certainty to be incurred.
-7-
7.4 In addition to the rights otherwise granted by this Section 7, GSCP
and the Affiliates, on the one hand, and SIG, on the other hand, agree that the
Damage caused by the breach by it of any of the provisions hereof will be
difficult to determine and monetary damages may not afford the other party a
full and adequate remedy for such breach, and therefore, each of the parties
agrees that the other party shall be entitled to an immediate injunction and
restraining order (without the necessity of a bond) to prevent any breach or any
threatened or continued breach by such party without the other party having to
prove Damages, in addition to any other remedies to which the other party may be
entitled at law or in equity.
Section 8
Termination
8.1 This Agreement may be terminated or extended at any time by mutual
written consent of the parties hereto prior to September 30, 1997.
8.2 Unless earlier terminated in accordance with Section 8.1, this
Agreement will terminate on September 30, 1997 if the Closing has not yet
occurred.
8.3 In the event of termination of this Agreement as provided in this
Section 8, this Agreement shall forthwith terminate and there shall be no
liability on the part of any party or any party's officers or directors, expect
for liabilities arising from a breach of this Agreement prior to such
termination.
Section 9
Post-Closing Price Adjustment
9.1 In the event that, within one (1) year following the Closing, SIG
or any of its affiliates shall, in any transaction or series of related
transactions, directly or indirectly, sell, transfer or otherwise dispose of
(each a "Sale") GGSM, GGS Management, Inc. ("GGS") or Pafco General Insurance
Company ("Pafco") and Superior Insurance Company ("Superior"), or shall enter
into any agreement for the Sale of GGSM, GGS or Pafco and Superior (whether any
such Sale or contemplated Sale is by means of a merger, consolidation, or sale
of all or substantially all of the assets or shares of capital stock of GGSM,
GGS or Pafco and Superior, or otherwise), that, upon the consummation of any
such Sale, SIG shall pay to GSCP an amount of cash equal to (such amount, the
"Price Adjustment Amount") (a) 48% of the total value of the highest amount of
consideration received or to be received by SIG or any of its affiliates in
connection with such Sale, less (b)(i) $61,000,000 plus (ii), if the Note
Financing is consummated, the Daily Interest Amount (as defined below)
multiplied by the number of days that elapse from the Closing through the date
upon which SIG or any of its affiliates enters into any agreement for any Sale
subject to this Section 9.1. "Daily Interest Amount" shall equal (x)
$61,000,000, multiplied by (y) (a) the annual interest payable by SIG in respect
of the notes issued pursuant to the Note Financing (or in respect of any notes
issued in exchange for such notes) divided by, (b) 365.
9.2 Notwithstanding the provisions of Section 9.1 hereof, if the Price
Adjustment Amount
-8-
is negative, SIG shall not be required to make any payment to GSCP pursuant to
this Section 9.
9.3 Notwithstanding any other provision of this Agreement, in no event
shall SIG be required to pay to GSCP pursuant to this Section 9 an amount in
excess of $5,000,000.
Section 10
Miscellaneous
10.1 Each of the parties hereto agrees to use all commercially
reasonable efforts to take, or cause to be taken, all reasonable actions and to
do, or cause to be done, all reasonable things necessary, proper or advisable to
consummate the transactions contemplated by this Agreement. None of the parties
hereto will take or permit to be taken (by any entity that they control) any
action that would be in breach of the terms or provisions of this Agreement or
that would cause any of the representations contained herein to be or become
untrue. In addition, SIG shall use commercially reasonable efforts to cause the
Note Financing to be consummated prior to September 30, 1997.
10.2 Whether or not the Closing occurs, subject to Section 7, except as
otherwise stated or hereinafter agreed, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expense. It is specifically agreed that,
subject to Section 7, SIG shall not be responsible for the legal, accounting or
other professional fees incurred by GSCP relating to this Agreement, its
execution or the Closing.
10.3 At Closing, GSCP will deliver written resignations of Xxxxxx X.
Xxxxx and Xxxxxxx X. Xxxxxx (or any designated successor thereto) from the Board
of Directors of GGSM, GGS Management, Inc., Superior Insurance Company, Superior
American Insurance Company, Superior Guaranty Insurance Company, Standard Plan,
Inc. and Pafco General Insurance Company.
10.4 The content and timing of any press release or other public
announcement proposed to be made concerning the transactions contemplated by
this Agreement must be consented to in advance by each party, which consents
shall not be unreasonably withheld or delayed. Except in connection with any
press release or other public announcement made pursuant to the prior sentence,
SIG shall not, and shall not permit any of its affiliates to, issue any press
release or make any other public statement which makes any reference to GSCP,
its affiliates, or "Xxxxxxx Sachs," without the prior consent of GSCP
10.5 Subject to Section 7.2 hereof, the representations, warranties,
covenants and agreements of the purchasers and sellers contained in this
Agreement shall survive the Closing and shall not merge in the performance of
any obligation by any party hereto.
10.6 This Agreement may not be amended or modified without the prior
written consent of all parties.
10.7 Failure to insist upon strict compliance with any of the terms or
conditions to this
-9-
Agreement at any one time shall not be deemed a waiver of such term or condition
at any other time, nor shall any waiver or relinquishment of any right or power
granted herein at any time be deemed a waiver or relinquishment of the same or
any other right or power at any other time.
-10-
10.8 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the principles
of conflicts of laws. Each of the parties hereto irrevocably and unconditional
consents to submit to the exclusive jurisdiction of the courts of the United
States of America located in the County of New York (and if such courts do not
have appropriate jurisdiction, the court of the State of New York), for any
action, proceeding or investigation in any court or before any governmental
authority ("Litigation") arising out of or relating to this Agreement or the
Release and the transactions contemplated hereby and thereby (and agrees not to
commence any Litigation relating thereto except in such courts), and further
agrees that service of any process, summons, notice or document by U.S.
registered mail to its respective address set forth in this Agreement shall be
effective service of process for any Litigation brought against it in any such
court. Each of the parties hereto hereby irrevocably and unconditional waives
any objection to the laying of venue of any Litigation arising out of this
Agreement or the transactions contemplated hereby in the courts of the United
States of America located in the County of New York (and if such courts do not
have appropriate jurisdiction, the courts of the State of New York), and hereby
further irrevocably and unconditional waives and agrees not to plead or claim in
any such court that any such Litigation brought in any such court has been
brought in an inconvenient forum.
10.9 Any notice or other communication to be given hereunder shall be
in writing and shall be deemed sufficient when:
a. mailed by United States Certified Mail, Return Receipt Requested;
b. mailed by overnight express mail;
c. sent by facsimile or telecopy machine, followed by
confirmation mailed by First Class Mail or overnight
express mail; or
d. delivered in person, at the address set forth below,
or such other address as a party may provide to the
other in accordance with the procedure for notice as
set forth in this Section.
If to: Xxxxxx International Group, Inc.:
Xxxxx X. Xxxxx, Esq.
Vice President, General Counsel and Secretary
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone317 259-6384
Facsimile317 259-6395
-11-
If to: GSCP
Xxxxxxx X. Xxxxxx
Xxxxxxx Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone212 902-9123
Facsimile212 357-0926
Copy to:
Xxxx Xxxxxxxxx, Esq.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone212 859-8000
Facsimile212 859-8585
10.10 If any provision of this Agreement shall be determined to be
invalid or unenforceable, this Agreement shall be deemed amended to delete such
provision and the remainder of this Agreement shall be enforceable by this
terms.
10.11 This Agreement may not be assigned or delegated by any party
without the prior written consent of all other parties.
10.12 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted successors and assigns.
10.13 Each party agrees to execute and deliver all such documents and
agreements and to take all further acts as may be reasonably necessary or
appropriate to effectuate this Agreement.
10.14 Headings and captions contained in this Agreement are inserted
only as a matter of convenience and for reference and in no way define, limit,
extend or prescribe the scope of this Agreement or the intent of any provision.
10.15 The masculine gender shall include the feminine and neuter
genders and the singular shall include the plural.
10.16 This Agreement constitutes the entire agreement of the parties
with respect to the matters set forth herein and supersedes any and all prior
understandings or agreements, oral or written, with respect to such matters.
-12-
10.17 Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed or resolved against any party hereto, whether under any rule
of construction or otherwise. No party shall be considered the draftsman. On the
contrary, this Agreement has been reviewed, negotiated and accepted by all
parties and their lawyers and shall be construed and interpreted according to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of all parties hereto.
10.18 This Agreement may be executed in any number of counterparts,
each of which shall be an original, and all such counterparts shall constitute
one in the same Agreement, binding on all the parties notwithstanding that all
the parties are not signatories to the same counterpart.
10.19 This Agreement is for the sole benefit of the parties hereto and
shall be construed to grant legal or equitable rights only to the parties
hereto.
10.20 The preambles contained herein above are incorporated herein by
reference as though repeated verbatim.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
XXXXXX INTERNATIONAL GROUP, INC.
By:___________________________________
Name:
Title:
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.
Its general partner
By: GS Advisors, Inc.
Its general partner
By:____________________________________
Name:
Title:
-00-
Xxxxx Xxxxxxxx Agreement cont. . . . . .
GS CAPITAL PARTNERS OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.
Its general partner
By: GS Advisors II, Inc.
Its general partner
By:____________________________________
Name:
Title:
XXXXXXX SACHS & CO. VerWaltung GmbH
By:____________________________________
Name:
Title:
and
By:____________________________________
Name:
Title:
XXXXX XXXXXX XXXXX 0000, X.X.
By: Stone Street Empire, Corp.,
Its general partner
By:____________________________________
Name:
Title:
XXXXXX XXXXXX XXXXX 0000, X.X.
By: Stone Street Empire, Corp.,
Its general partner
By:____________________________________
Name:
Title:
-14-
Execution Copy Original
MUTUAL GENERAL RELEASE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Goran Capital Inc. and SIG, jointly and
severally, on the one hand, and GSCP and the Affiliates, jointly and severally,
on the other hand, for themselves and their respective successors and assigns,
hereby fully release and discharge each other and all entities and persons
related to or affiliated with them, from all liabilities, contingent or
otherwise, which Goran Capital Inc., SIG, its direct and indirect subsidiaries,
or GSCP and the Affiliates, or any related or affiliated entities, have against
the other party with respect to any and all claims, demands, liabilities or
costs or other expenses or liabilities incurred pursuant to the Shareholder
Agreements, including any and all other expenses or liabilities of a
non-recurring nature incurred pursuant to the Shareholder Agreements.
None of the terms or provisions of this Mutual General release may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the parties hereto. This Mutual General Release shall be
binding upon the undersigned and their respective parties hereto. This Mutual
General Release shall be governed by and shall be construed and interpreted in
accordance with, the internal laws of the State of New York, without reference
to principles of conflict of laws.
All defined terms used herein shall have the same meaning as is
ascribed in the Stock Purchase Agreement to which this Mutual General Release is
an Exhibit.
IN WITNESS WHEREOF, the undersigned have executed this Mutual General
Release effective this _____ day of _______________, 1997.
XXXXXX INTERNATIONAL GROUP, INC.
By:___________________________________
Name:
Title:
GORAN CAPITAL INC.
By:___________________________________
Name:
Title:
Mutual General Release cont. . . . . .
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.
Its general partner
By: GS Advisors, Inc.
Its general partner
By:____________________________________
Name:
Title:
GS CAPITAL PARTNERS OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.
Its general partner
By: GS Advisors II, Inc.
Its general partner
By:____________________________________
Name:
Title:
Mutual General Release cont. . . . . .
XXXXXXX XXXXX & CO. VerWaltung GmbH
By:____________________________________
Name:
Title:
and
By:____________________________________
Name:
Title:
XXXXX XXXXXX XXXXX 0000, X.X.
By: Stone Street Empire, Corp.,
Its general partner
By:____________________________________
Name:
Title:
XXXXXX XXXXXX XXXXX 0000, X.X.
By: Stone Street Empire, Corp.,
Its general partner
By:____________________________________
Name:
Title:
