EXHIBIT 2
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
SELLERS (AS DEFINED BELOW) THAT SUCH REGISTRATION IS NOT REQUIRED.
BACKSTOP AGREEMENT, dated as of January 3, 2008 (this "AGREEMENT"), by the
Sellers identified on the signature page hereof (each, a "SELLER" and
collectively, the "SELLERS") and Xxxxxx Bay Fund, LP, a Delaware limited
partnership (collectively, and together with any designated affiliate as
provided in Section 12 below, the "INVESTOR").
WHEREAS, Echo Healthcare Acquisition Corp., a Delaware corporation
("ECHO"), has entered into a Second Amended and Restated Agreement and Plan of
Merger dated October 23, 2007 (the "MERGER Agreement"), pursuant to which Echo
will acquire all of the issued and outstanding shares of capital stock of XLNT
Veterinary Care, Inc. ("XLNT") on the terms and subject to the conditions set
forth therein (the "TRANSACTION"). The consummation of the Transaction is
subject to, among other things, (1) the approval of the proposal approving the
Transaction (the "TRANSACTION PROPOSAL") set forth in Echo's definitive proxy
statement dated November 12, 2007 by the affirmative vote of a majority of the
shares of Echo's common stock, par value $.0001 per share (the "COMMON STOCK"),
(a) issued in its initial public offering (the "IPO") and actually voting on
such proposal at the special meeting of the stockholders of Echo (including any
postponement or adjournment thereof, the "SPECIAL MEETING") and (b) issued and
outstanding as of the November 7, 2007 record date (the "Record Date") for the
Special Meeting; and (2) less than 20% of the shares of Echo's common stock
issued in the IPO voting against the Transaction Proposal and electing a cash
conversion of their shares.
WHEREAS, the Investor intends to acquire shares of Echo's Common Stock, in
either open-market purchases or by means of individually negotiated transactions
and the Sellers are willing to enter into this Agreement to provide the Investor
with the Backstop Right described below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following defined
terms shall have the following meanings:
"ADDITIONAL SHARES" means the number of shares of Common Stock to be
received by Investor in connection with the Transaction, equal to 100,000
shares, plus the number of Purchased Shares multiplied by 0.3125; provided, that
the number of Additional Shares shall not be more than 412,500 shares.
"AFFILIATE" means, with respect to any Person, a Person who is an
"affiliate" of such first Person within the meaning of Rule 405 under the
Securities Act.
1
"BACKSTOP PAYMENT" means the Interim Backstop Payment (as defined in
Section 2) and the Aggregate Buyback Amount (as defined in Section 3).
"BACKSTOP RIGHT" shall mean the right to receive the Backstop Payments and
the other consideration to be provided by Sellers to the Investor pursuant to
this Agreement.
"BUSINESS DAY" means any day on which the Common Stock is traded on the
Principal Market, or, if the Principal Market is not the principal trading
market for the Common Stock, then on the principal securities exchange or
securities market on which the Common Stock is then traded; provided that
"BUSINESS DAY" shall not include any day on which the Common Stock is scheduled
to trade on such exchange or market for less than 4.5 hours or any day that the
Common Stock is suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not designate in advance
the closing time of trading on such exchange or market, then during the hour
ending at 4:00:00 p.m., New York Time).
"ECONOMIC HEDGE" means any hedging or similar transaction, including a
short sale, designed to transfer the economic risk of some or all of an
investment in the Common Stock away from the Investor; PROVIDED, that the Sale
of any Total Shares shall not be deemed to be an Economic Hedge.
"INITIAL INVESTMENT AMOUNT" as of any date means (i) the aggregate purchase
price paid by the Investor for all Purchased Shares (inclusive of all reasonable
fees and documented brokers' fees, commissions or similar transaction costs),
but in no event shall the per Share purchase price for any Purchased Shares
exceed $8.10 per share without the consent of the Sellers' Representative).
"LIEN" means any lien, pledge, claim, charge, mortgage, security interest
or other encumbrance of any kind, whether arising by contract or by operation of
law.
"ONE YEAR ANNIVERSARY DATE" shall mean the first anniversary of closing of
the Transaction, or if such day is not a Business Day, the next Business Day.
"PERSON" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization,
charitable or not-for-profit institution or organization or other entity or any
governmental entity.
"PURCHASED SHARES" means the number of shares of Common Stock that the
Investor acquires in either open-market purchases or by means of individually
negotiated transactions between the date of this Agreement and prior to 11:00
p.m. New York time the day before the Special Meeting (or, if later, any
adjournment or postponement thereof) is called to order and beneficially owns as
of the close of business on the date of the Special Meeting, or acquired after
such time and before the Special Meeting and voted in favor of each item to be
considered by stockholders at the Special Meeting. For the avoidance of doubt,
"Purchased Shares" shall not include (i) any shares of Common Stock that were
(i) acquired by the Investor prior to the beginning of such period, or (ii) any
Purchased Shares that are subsequently sold or transferred by the Investor prior
to the date of the Special Meeting.
2
"REJECTED OFFER" means a bona fide written offer to sell any of the Total
Shares for cash immediately available upon settlement (within no more than three
Business Days) through any of the brokers listed on Schedule 1 attached hereto
at a price per share equal to or greater than $6.25, which offer was one that
the Investor is able to immediately accept but is not accepted by Investor;
PROVIDED, HOWEVER, that a "Rejected Offer" shall not include an offer that was
not accepted or a transaction not completed for any reason outside the
discretion of the Investor.
"REJECTED SHARES" means shares subject to a Rejected Offer.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLERS' REPRESENTATIVE" shall mean Windy City, Inc.
"SIX MONTH ANNIVERSARY DATE" shall mean the date that is six months from
the closing of the Transaction, or if such day is not a Business Day, the next
Business Day.
"TOTAL SHARES" means the Purchased Shares and the Additional Shares.
"WEIGHTED AVERAGE PRICE" means, for the Common Stock as of any date, the
dollar volume-weighted average price for the Common Stock on the principal
trading market for the Common Stock as of such date (the "PRINCIPAL MARKET")
during the period beginning at 9:30:01 a.m., New York Time (or such other time
as the Principal Market publicly announces is the official open of trading), and
ending at 4:00:00 p.m., New York Time (or such other time as the Principal
Market publicly announces is the official close of trading) as reported by
Bloomberg Financial Markets ("BLOOMBERG") through its "Volume at Price"
functions, or, if the foregoing does not apply, the dollar volume-weighted
average price of the Common Stock in the over-the-counter market on the
electronic bulletin board for such security during the period beginning at
9:30:01 a.m., New York Time (or such other time as such market publicly
announces is the official open of trading), and ending at 4:00:00 p.m., New York
Time (or such other time as such market publicly announces is the official close
of trading) as reported by Bloomberg, or, if no dollar volume-weighted average
price is reported for the Common Stock by Bloomberg for such hours, the average
of the highest closing bid price and the lowest closing ask price of any of the
market makers for the Common Stock as reported in the "pink sheets" by Pink
Sheets LLC. If the Weighted Average Price cannot be calculated for the Common
Stock on a particular date on any of the foregoing bases, the Weighted Average
Price of such security on such date shall be the fair market value as mutually
determined by the Backstop Party Representative and the Investor. All such
determinations to be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during the applicable calculation
period.
2. BACKSTOP RIGHT.
(a) INTERIM BACKSTOP PAYMENT. Subject to the terms and conditions of
this Agreement, if the Interim Investment Amount (as defined below) exceeds the
Interim Market Value, the Sellers will pay to the Investor an amount (the
"INTERIM BACKSTOP PAYMENT") equal to 50% of such excess. The Interim Backstop
Payment shall be made no later than the third Business Day following the Six
Month Anniversary Date (the "Interim Closing") by wire transfer of immediately
available funds to an account or accounts designated in writing by the Investor
prior to the Interim Closing.
3
(b) "INTERIM INVESTMENT AMOUNT" means the Initial Investment Amount,
LESS (i) proceeds to the Investor from any sales of any of the Total Shares
prior to the Six Month Anniversary Date and (ii) the proceeds that would have
been payable to the Investor pursuant to any Rejected Offer received by Investor
prior to the Six Month Anniversary Date, had such Rejected Offer been accepted.
(c) "INTERIM MARKET VALUE" shall mean the product of (i) the
arithmetic average of the Weighted Average Price for the Common Stock for the 20
consecutive Business Days ending on the Six Month Anniversary Date, multiplied
by (ii) the number of Total Shares held by the Investor as of the Six Month
Anniversary Date, excluding Rejected Shares.
3. ONE YEAR ANNIVERSARY PURCHASE OBLIGATION.
(a) PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, the Sellers jointly and severally agree to purchase (the "PURCHASE
OBLIGATION") from the Investors, and the Investors agree to sell to the Sellers,
all of the Buyback Shares (as defined below) for an aggregate consideration
equal to the Aggregate Buyback Amount (as defined below).
(b) DEFINITIONS.
"AGGREGATE BUYBACK AMOUNT" means the Initial Investment Amount, LESS
the sum of (i) the Interim Backstop Payment, (ii) proceeds to the Investor from
any sales of any of the Total Shares prior to the One Year Anniversary Date, and
(iii) the proceeds that would have been payable to the Investor pursuant to any
Rejected Offer received by Investor prior to the One Year Anniversary Date and
not accepted had, such Rejected Offer been accepted.
"BUYBACK SHARES" means the Total Shares held by the Investor (together
with its Affiliates) as of the One Year Anniversary Date, excluding any Rejected
Shares.
"ONE YEAR MARKET VALUE" means the product of the arithmetic average of
the Weighted Average Price for the Common Stock for the 20 Consecutive Business
Days ending on the One Year Anniversary Date, multiplied by the number of
Buyback Shares.
(c) MAXIMUM PAYMENT OBLIGATIONS. Notwithstanding anything in this
Agreement to the contrary, in no event shall Sellers be obligated under the
Backstop Right or the Purchase Obligation to make payments in an amount that
would cause the sum of (a) the Interim Backstop Payment plus (b) the Aggregate
Buyback Amount less (c) the One Year Market Value, to exceed the Initial
Investment Amount less $1,000,000 (the "Maximum Payment Obligation"). If such
calculation would otherwise exceed the Maximum Payment Obligation, then the
Interim Backstop Payment and/or Aggregate Buyback Amount will be appropriately
reduced.
(d) CLOSING. The closing of the Purchase Obligation shall take place
no later than the third Business Day following the One Year Anniversary Date
(the "Buyback Closing"). At the closing of such transaction and upon payment of
the Aggregate Buyback Amount, the Investor shall, subject to Section 4 hereof,
(x) if Echo's transfer agent, if any, is participating in the Depository Trust
Company's ("DTC") Fast Automated Securities Transfer Program, credit the
aggregate number of Buyback Shares to the Sellers' or their designee's balance
accounts with
4
DTC, if any, through its Deposit/Withdrawal at Custodian system or (y) if Echo's
transfer agent is not participating in the DTC Fast Automated Securities
Transfer Program or if the foregoing is not applicable, deliver to the Sellers
or to one or more assignees or substitute purchasers designated by the Sellers,
at the principal office of Echo, certificates representing all the Buyback
Shares free and clear of all Liens, which certificates shall have affixed
thereto stock powers in the appropriate form for transfer. The Aggregate Buyback
Amount for the Buyback Shares shall be payable to the Investor in cash in U.S.
dollars by delivery to the Investor of the amount thereof by wire transfer of
immediately available funds to an account or accounts, designated in writing by
the Investor prior to the Buyback Closing.
(e) ADJUSTMENTS. In the event of changes in the outstanding Common
Stock of Echo by reason of stock dividends, stock splits or other similar
events, shall be correspondingly adjusted to give the Investor, upon settlement
of the Purchase Obligation, the same aggregate payment as the Investor would
have been entitled to had the Purchase Obligation been settled immediately prior
to such event. This Agreement need not be changed or amended because of any
adjustment in the number, class, and kind of the Common Stock.
4. CONDITIONS.
This Agreement and the Backstop Right shall automatically terminate and
become null and void if (i) the Investor (together with any assignees) does not
utilize its reasonable best efforts to acquire at least 750,000 Purchased Shares
for a price not to exceed $8.10 per share on or prior to the close of business
on the first Business Day prior to the Special Meeting, (ii) Echo does not
receive the requisite stockholder approval at the Special Meeting (or any
adjournment thereof) to consummate the Transaction, (iii) Echo does not
consummate the Transaction, (iv) Investor does not fulfill in all material
respects its obligations set forth in Section 7 below or (v) Investor breaches
in any material respect the representations and warranties contained in Section
6 below.
5. REPRESENTATIONS AND COVENANTS OF SELLERS. Sellers hereby jointly and
severally represent, warrant and covenant to the Investor, as follows:
(i) POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Sellers have
full legal capacity, power and authority to execute and deliver this Agreement,
to perform their obligations hereunder, and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Sellers and constitutes a valid and binding agreement of Sellers,
enforceable against Sellers in accordance with its terms, except that
enforceability may be subject to the effect of (a) any applicable bankruptcy,
reorganization, receivership, conservatorship, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors' rights
generally and to general principles of equity and (b) any laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, regardless of whether considered in a proceeding in law or equity.
(ii) NO CONFLICTS. The execution and delivery of this Agreement
by Sellers does not, and the performance of the terms of this Agreement by
Sellers will not, (a) require Sellers to obtain the consent or approval of, or
make any filing with or notification to, any governmental or regulatory
authority, domestic or foreign (other than the Securities and
5
Exchange Commission (the "SEC")), (b) require the consent or approval of any
other Person pursuant to any agreement, obligation or instrument binding on
Sellers or their properties and assets, (c) conflict with or violate any
organizational document or law, rule, regulation, order, judgment or decree
applicable to Sellers or by which any property or asset of Sellers is bound, or
(d) violate any other agreement to which the Sellers are a party, including,
without limitation, any voting agreement, stockholders agreement, irrevocable
proxy, voting trust, or the Stock Purchase Agreement.
(iii) OTHER ARRANGEMENTS. If, in the sole discretion of the
Investor, any other investor receives consideration that is in the aggregate
more favorable to such other investor than the aggregate consideration to the
Investor contemplated hereby, the Investor shall have the option, to receive
such other consideration on the same terms provided to the other Investor in
lieu of the consideration granted hereby.
(iv) ACCREDITED INVESTOR. Each Seller is an "accredited investor"
as defined in Rule 501(a)(1), (2), (3), (7) or (8) promulgated under the
Securities Act.
(v) DISCLOSURE. The per share amount to be distributed to
holders of Common Stock who exercise conversion rights in connection with the
Transaction is not less than $8.10. The financial information provided by
Sellers to Investor fairly presents the financial position of such Seller.
6. CERTAIN ADDITIONAL COVENANTS OF SELLERS.
(a) FURTHER ASSURANCES. Subject to the terms and conditions set forth
in this Agreement, Sellers will use their best efforts, as promptly as is
practicable, to take or cause to be taken all actions, and to do or cause to be
done all other things, as are necessary, proper or advisable and consistent with
the terms and conditions of this Agreement, to consummate and make effective the
transactions contemplated by this Agreement and the letter from certain of the
Sellers to Investor dated as of the date of this Agreement (the "LETTER
AGREEMENT") to refrain from taking any actions that are contrary to,
inconsistent with or against, or would frustrate the essential purposes of, the
transactions contemplated by this Agreement and the Letter Agreement.
(b) DISCLOSURE. Sellers will advise Echo of the material terms and
conditions of this Agreement (and any similar agreements entered into with any
other Person) such that Echo can promptly publicly disclose the terms hereof (if
Echo determines that such disclosure is appropriate) on one or more Current
Reports on Form 8-K; provided, however, that Sellers shall request that the
identity of Investor, its affiliates, and/or their principals, officers,
directors, shareholders, agents, attorneys, consultants, and the like not be
disclosed (unless Echo determines that such disclosure is required).
(c) PURCHASE VOLUME LIMITS. Without the prior written consent of
the Investor, Sellers will not directly or indirectly, prior to the One Year
Anniversary Date, purchase Common Stock on any Business Day exceeding 15% of
daily trading volume for the Common Stock on the Principal Market on such day.
6
7. REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor hereby represents
and warrants to the Sellers as follows.
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. Investor is duly
organized and validly existing under the laws of the state or other jurisdiction
of its organization. Investor has all requisite power and authority to execute
and deliver this Agreement.
(b) OWNERSHIP OF SECURITIES. As of the date of the Buyback Closing:
(i) the Total Shares to be sold will be beneficially owned by the Investor and
(ii) the Investor shall have voting power and dispositive power with respect to
all of the Buyback Shares held by it. On the date of the Buyback Closing, the
Investor shall transfer valid title to all of the Buyback Shares to be
transferred hereby to Sellers free from all Liens, and the Buyback Shares shall
be freely transferable to the Sellers except for restrictions on transfer
pursuant to state and/or federal securities laws.
(c) AUTHORIZATION; BINDING OBLIGATIONS; GOVERNMENTAL CONSENTS. All
actions on the part of Investor, its officers, directors and equity owners
necessary for the authorization of this Agreement and the Letter Agreement
performance of all obligations of Investor hereunder have been taken prior to
the date hereof. This Agreement is a valid and binding obligation of Investor,
enforceable in accordance with its terms, except as limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights generally; and (ii)
general principles of equity that restrict the availability of equitable
remedies. No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of Investor is required in connection
with the consummation of the transactions contemplated by this Agreement (other
than Form 3 and/or Form 4 filings or other SEC filings).
(d) NO ECONOMIC XXXXXX. Between December 14, 2007, and the date
hereof, the Investor has not engaged, directly or indirectly, in any Economic
Hedge with respect to the Common Stock.
8. CONDITIONS TO BACKSTOP RIGHTS. Investor agrees that the following shall
be conditions to its right to receive the Backstop Payments:
(a) At the Special Meeting or any meeting of the stockholders of
Echo, however called, or any postponement or adjournment thereof, or in
connection with any solicitation of votes of the stockholders of Echo by written
consent, Investor shall not vote for any action or agreement that would have
prevented or materially delayed the consummation of the Transaction or any other
transactions contemplated by this Agreement or the Merger Agreement, or that
would have been contrary to or inconsistent with, or result in a breach by the
Sellers of, or would have frustrated the essential purposes of this Agreement or
the Merger Agreement. The Investor shall use its commercially reasonable efforts
to take such actions as Sellers may reasonably request in order to assist the
brokers in obtaining due authorization from any Person from whom the Investor
acquired the Purchased Shares (the "Record Date Seller") in favor of the
Transaction Proposal and the Merger Agreement and all other proposals submitted
by Echo for vote of its stockholders relating to the Transaction.
7
(b) Between the date hereof and the One Year Anniversary Date, the
Investor shall not have engaged, directly or indirectly, in any Economic Hedge
with respect to the Total Shares.
9. CERTAIN COVENANTS OF INVESTOR.
(a) The Investor agrees that any acquisition of Purchased Shares
will be made in accordance with the provisions of this Agreement.
(b) For so long as the Sellers have any payment obligations under
this Agreement, the Investor shall give the Sellers written notice (which may be
by email) of any sales or transfers of Purchased Shares within five (5) Business
Days of such sale or transfer, including the number of shares transferred and
the proceeds therefrom.
(c) Subject to the terms and conditions set forth in this Agreement,
Investor will use its commercially reasonable efforts, as promptly as is
practicable, to take or cause to be taken all actions, and to do or cause to be
done all other things, as are necessary, proper or advisable and consistent with
the terms and conditions of this Agreement, to consummate and make effective the
transactions contemplated by this Agreement to refrain from taking any actions
that are contrary to, inconsistent with or against, or would frustrate the
essential purposes of, the transactions contemplated by this Agreement.
(d) Without the prior written consent of the Sellers' Representative,
the Investor will not directly or indirectly, prior to the One Year Anniversary
Date sell Common Stock exceeding 15% of the average trading volume on any
Business Day on which the Weighted Average Price is less than $6.25 per share
without the consent of the Sellers' Representative; PROVIDED, HOWEVER that if
the Investor (i) has given the Sellers' Representative written notice by 5:00 pm
New York Time on any Business Day offering to sell a specified percentage of the
following Business Day's trading volume to Sellers at the following Business
Day's Weighted Average Price and (ii) the Sellers' Representative has not
accepted such offer by 8:30 a.m. New York Time on the next Business Day then the
Investor may sell up to the specified trading volume on such next Business Day.
(e) The Investor will not enter into any Economic Xxxxxx with respect
to the Total Shares prior to the One Year Anniversary Date.
10. AMENDMENTS. This Agreement may be amended from time to time by a
written instrument executed and delivered by the parties.
11. REMEDIES. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that the parties will have the right to injunctive relief, in addition to
all of its rights and remedies at law or in equity, to enforce the provisions of
this Agreement. Nothing contained in this Agreement will be construed to confer
upon any person who is not a signatory hereto or any successor or permitted
assign of a signatory hereto any rights or benefits, as a third party
beneficiary or otherwise.
8
12. INVESTOR SUBSTITUTION. Investor shall have the right to substitute any
other person or entity ("Person") as a purchaser or holder of the Total Shares
hereunder, by written notice to the Sellers, which notice shall be signed by
both the Investor and such Person, shall contain such Person's agreement to be
bound by this Agreement and shall contain a confirmation by such Person of the
accuracy with respect to it of the representation and warranties set forth in
SECTION 7. Upon receipt of such notice, any reference to Investor in this
Agreement (other than in this SECTION 12), shall be deemed to refer to such
Person in addition to or in lieu of the Investor (as applicable).
13. GENERAL PROVISIONS.
(a) NOTICES. Except as otherwise provided herein, any offer,
acceptance, notice or communication required or permitted to be given pursuant
to this Agreement shall be deemed to have been duly and sufficiently given for
all purposes by a party if given by the party, or an officer, trustee, or other
personal or legal representative of such party, or by any other person
authorized to act for such party, if in writing and delivered personally to the
party or to an officer, trustee or other personal or legal representative of the
party, or any other person authorized to act for such party to whom such notice
shall be directed, or sent by overnight delivery service, or certified or
registered mail, postage and registration prepaid, return receipt requested, or
by facsimile to such party's home or business address as reflected on the
signature pages hereto or other address as such party may designate to each of
the other parties hereto by a notice complying with the requirements of this
Section 13(a). Any such notice shall be deemed to have been given on the date on
which the same was delivered in the case of personal delivery, post-marked in
the case of certified or registered mail or overnight delivery service, or dated
in the case of a facsimile.
(b) ASSIGNMENTS AND TRANSFERS. Other than as contemplated in SECTION
12, the parties hereto shall have no right to assign or transfer this Agreement
or any of their respective rights hereunder (including, without limitation, the
Backstop Right).
(c) BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the successors, assigns, personal representative, estates,
heirs and legatees of the parties hereto.
(d) MISCELLANEOUS. This Agreement and the Letter Agreement sets forth
the entire understanding of the parties hereto with respect to the transactions
contemplated hereby. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument and shall be governed by and construed in accordance
with the domestic substantive laws of the State of New York, without regard to
principles of conflicts of laws. Delivery of an executed signature page by
facsimile or other electronic transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties have caused this Backstop Right Agreement
to be executed and delivered by their duly authorized representatives as of the
date first written above.
SELLERS:
WINDY CITY, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
Presdient
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx Xxxxxx
CHICAGO INVESTMENTS, INC.
/s/ Xxxx X. Xxxxxx
-----------------------------------
By: Xxxx Xxxxxx
President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
10
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
INVESTORS
XXXXXX BAY FUND, LP
/s/ Xxxx Xxxx
-----------------------------------
By: Xxxx Xxxx
Title: Principal and
Portfolio Manager
11
Schedule 1
Xxxxx Xxxxxxx Inc.
Xxxx Capital Partners LLC
Xxxxxx Xxxxxx & Co. Inc.
12
