EXHIBIT 5
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of October 10,
2005, by and among DOLPHIN DIRECT EQUITY PARTNERS, L.P., a Delaware limited
partnership (the "BUYER"), and XXXXX XXXXXX, an individual having an address at
000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("XX. XXXXXX"), XXXX
XXXXXX, an individual having an address at 000 Xxxxx Xxxxxx, 00xx xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("XX. XXXXXX") and RHL ASSOCIATES, L.P., a Delaware limited
partnership ("RHL" and, together with Xx. Xxxxxx and Xx. Xxxxxx, the "SELLERS").
WHEREAS, the Sellers have indicated to the Buyer an interest in selling
to the Buyer all of the outstanding shares of common stock of Boston Restaurant
Associates, Inc. (the "COMPANY"), $.01 par value (the "COMMON STOCK"), owned by
the Sellers, and the Buyer has indicated to Xx. Xxxxxx an interest in buying
such shares; and
WHEREAS, as of the date hereof, each Seller "beneficially owns" (as
such term is defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934 (the 1934 Act")) and is entitled to dispose of (or to direct the
disposition of) and to vote (or to direct the voting of) the number of
outstanding shares of Common Stock set forth opposite such Seller's name on
SCHEDULE I hereto (the "SCHEDULE I SHARES").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, hereby represent and warrant the
Buyer as follows:
1.1 ORGANIZATION; GOOD STANDING. If such Seller is an entity, such
Seller is duly organized and validly existing and in good standing under the
laws of its jurisdiction of organization.
1.2 AUTHORITY; NONCONTRAVENTION. If such Seller is an entity, such
Seller has the requisite power (corporate or other) and authority to execute and
deliver this Agreement and to consummate the transactions contemplated by this
Agreement. If such Seller is an individual, such Seller has the requisite
capacity to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. If such Seller is an entity, the
execution and delivery of this Agreement by such Seller and the consummation by
such Seller of the transactions contemplated by this Agreement have been duly
authorized by all necessary action (corporate or other) on the part of such
Seller and no other proceedings (corporate or other) on the part of such Seller
are necessary to approve this Agreement or to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by such Seller and, assuming the due authorization, execution and
delivery by the Buyer, constitutes a valid and binding obligation of such
Seller, enforceable against such Seller in accordance with its terms, subject
to: (a) applicable bankruptcy, insolvency, fraudulent transfer and conveyance,
moratorium, reorganization, receivership and similar laws relating to or
affecting the enforcement of the rights and remedies of creditors generally; (b)
principles of equity which may limit the availability of remedies (regardless of
whether considered and applied in a proceeding in equity or at law); and (c) an
implied covenant of good faith and fair dealing. The execution and delivery of
this Agreement by such Seller and the consummation of the transactions
contemplated hereby and compliance by such Seller with the provisions hereof do
not and will not conflict with, or result in any violation or breach of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of, or result in, termination, cancellation or acceleration of any
obligation under, or result in the creation of any lien, charge or encumbrance
of any nature (a "LIEN") in or upon any of the properties or assets of such
Seller under, any provision of: (a) if such Seller is an entity, the certificate
of incorporation or bylaws (or similar organizational documents) of such Seller;
(b) any contract, agreement, instrument, understanding or other arrangement,
written or oral (a "CONTRACT"), to which such Seller is a party or any of their
respective properties or assets is subject; or (c) any (i) statute, law,
ordinance, rule or regulation or (ii) judgment, order or decree, in each case,
applicable to such Seller or any of such Seller's properties or assets. Except
for the filing of a Schedule 13D (or amendment thereto) or a Form 4 or 5 by such
Seller, no consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental entity or other individual,
corporation (except the Company, with respect to which this representation is
qualified as given to the best knowledge of the Sellers), limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (each a "PERSON") is required by or with respect to such Seller
in connection with the execution and delivery of this Agreement by such Seller
or the consummation by such Seller of the transactions contemplated hereby or
compliance with the provisions hereof.
1.3 OWNERSHIP. The second column on SCHEDULE I sets forth, opposite
such Seller's name, the number of shares over which such Seller has sole record
and beneficial ownership as of the date hereof, excluding shares that may be
acquired pursuant to outstanding stock options. Except as set forth on SCHEDULE
I, as of the date hereof, such Seller has the sole power to vote and the sole
power to dispose of the shares of Common Stock referred to in the prior
sentence. Except as set forth on such SCHEDULE I, neither such Seller nor any
affiliate (as hereafter defined) of such Seller owns or holds any right to
acquire or dispose of any additional shares of any class of capital stock of the
Company or other securities of the Company or any interest therein or any voting
rights with respect to any securities of the Company, excluding shares that may
be acquired pursuant to outstanding stock options. "AFFILIATE" means, with
respect to any specified person, any person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the person specified. For purposes of this Agreement, with respect
to each Seller, the term "AFFILIATE" shall not include the Company and the
persons that directly, or indirectly through one or more intermediaries, are
controlled by the Company. The foregoing representations are not affected by the
fact that certain of the shares held by Xx. Xxxxxx and Xx. Xxxxxx may be held in
more than one account, including individual retirement accounts, and each of
them agrees that withdrawal of such shares from such accounts and any related
tax obligations or penalties shall not affect such representations.
1.4 DECISION TO SELL. Such Seller is capable of evaluating the merits
and risks of such Seller's decision to sell securities of the Company hereunder
and make an informed decision with respect thereto by reason of: (a) such
Seller's business and financial experience, and the business and financial
experience of those retained by such Seller to advise it with respect to its
investment in the securities of the Company being sold hereunder; (b) the access
to such information as such Seller or such advisors have requested, (c) without
limiting the generality of the foregoing, the knowledge and experience with
respect to the Company obtained pursuant to the Sellers' relationships with the
Company, including without limitation the service by Xx. Xxxxxx on the Board of
Directors of the Company, and (d) an active participation by Xx. Xxxxxx in the
matters of such Board. Each Seller represents that it has satisfactorily
conducted the maximum inquiries necessary to obtain the same information
available to it as may be available to the Buyer and its affiliates, including
other such Board members, and that such inquiries have not been interfered with
or prevented in any way by any party, with all of the foregoing including
information regarding the status to date of the work of the Special Committee of
the Board of Directors of the Company and its financial advisor, including as
may have been obtained by Xx. Xxxxxx from the Buyer or any representative
thereof.
1.5 ACCURACY OF REPORTS. Such Seller represents that the information
contained in all public filings relating to the Sellers, including without
limitation the Schedule 13D and each amendment thereto filed by any or all of
the Sellers with respect to their ownership of shares of stock of the Company,
are true, correct and complete with respect to the information therein regarding
the reporting persons and such stock ownership, at the time of the filing
thereof and as of the date hereof and that the Buyer is relying thereon in
connection with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Sellers as follows:
2.1 ORGANIZATION; GOOD STANDING. The Buyer is duly organized and
validly existing and in good standing under the laws of the State of Delaware.
2.2 AUTHORITY; NONCONTRAVENTION. The Buyer has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by the Buyer and the consummation by the Buyer of the transactions
contemplated by this Agreement have been duly authorized by all necessary
limited partnership action on the part of the Buyer and no other corporate
proceedings on the part of the Buyer is necessary to approve this Agreement or
to consummate the transactions contemplated by this Agreement. This Agreement
has been duly executed and delivered by the Buyer and, assuming the due
authorization, execution and delivery by each Seller, constitutes a valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms subject to: (a) applicable bankruptcy, insolvency, fraudulent
transfer and conveyance, moratorium, reorganization, receivership and similar
laws relating to or affecting the enforcement of the rights and remedies of
creditors generally; (b) principles of equity which may limit the availability
of remedies (regardless of whether considered and applied in a proceeding in
equity or at law); and (c) an implied covenant of good faith and fair dealing.
The execution and delivery of this Agreement by the Buyer and the consummation
of the transactions contemplated hereby and compliance by the Buyer with the
provisions hereof do not and will not conflict with, or result in any violation
or breach of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of, or result in, termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any Lien in or upon any of the properties or assets of the
Buyer under, or give rise to any increased, additional, accelerated or
guaranteed rights or entitlements under, any provision of: (a) the limited
partnership agreement of the Buyer; (b) any Contract to which the Buyer is a
party or any of its properties or assets is subject; or (c) any (i) statute,
law, ordinance, rule or regulation or (ii) judgment, order or decree, in each
case, applicable to the Buyer or any of its properties or assets. Except for the
filing of a Schedule 13D (or amendment thereto) or a Form 4 by the Buyer, no
consent, approval, order or authorization of, or registration, declaration or
filing with, any governmental entity or other person is required by or with
respect to the Buyer in connection with the execution and delivery of this
Agreement by the Buyer or the consummation by the Buyer of the transactions
contemplated hereby or compliance with the provisions hereof.
2.3 ACCREDITED INVESTOR. The Buyer is an "accredited investor," as
defined in Rule 501 of Regulation D under the Securities Act of 1933 (the "1933
Act") and is capable of evaluating the merits and risks of an investment in the
Company and making an informed investment decision with respect thereto.
2.4 INVESTMENT INTENT. The Buyer acknowledges that it is acquiring the
Schedule I Shares it will receive hereunder for its own account and not with a
view to their distribution within the meaning of Section 2(11) of the 1933 Act.
The Buyer currently does not intend to participate in any underwriting of the
Schedule I Shares to be purchased hereunder nor to take or cause to be taken any
action designed to cause it to be an underwriter of such shares, as the term
"underwriter" is defined in such Section nor to sell or otherwise transfer the
Schedule I Shares without registration under the Act or an exemption therefrom.
2.5 DECISION TO BUY. The Buyer is capable of evaluating the merits and
risks of its decision to buy securities of the Company hereunder and make an
informed decision with respect thereto by reason of: (a) the Buyer's business
and financial experience, and the business and financial experience of those
retained by the Buyer to advise it with respect to its investment in the
securities of the Company being sold hereunder; (b) the access to such
information as the Buyer or such advisors have requested, (c) without limiting
the generality of the foregoing, the knowledge and experience with respect to
the Company obtained pursuant to the Buyer's relationships with the Company,
including without limitation the service by Xxxxx Xxxxx on the Board of
Directors of the Company, and (d) an active participation by Xxxxx Xxxxx in the
matters of such Board. The Buyer represents that it has satisfactorily conducted
the maximum inquiries necessary to obtain the same information available to it
as may be available to the Sellers and their affiliates, including other such
Board members, and that such inquiries have not been interfered with or
prevented in any way by any party. None of the Sellers nor anyone acting on
their behalf has made any representation to the Buyer or anyone acting on its
behalf with regard to the Company, its current business, its prospects for the
future or the Company's securities which have been relied upon by the Buyer or
anyone acting on its behalf in connection with the purchase of the Schedule I
Shares. The Buyer is aware that the Sellers, as a group, are "affiliates" of the
Company as defined above.
ARTICLE III
SALE OF SCHEDULE I SHARES
3.1 CLOSING. At the Closing, as defined below, each Seller is shall
sell, assign, transfer, set aside and deliver to the Buyer, and the Buyer shall
purchase and acquire from such Seller the number of shares of Common Stock set
forth next to such Seller's name in the second column of SCHEDULE I hereto by
delivering to the Buyer one or more certificates representing such shares,
together with one or more stock powers (with appropriate signature guarantees)
duly endorsed in blank. The purchase price for each such share shall be $.50
with the respective aggregate purchase price for such shares being set forth
next to the respective names of the Sellers in the second column of SCHEDULE I.
Accordingly, at the Closing, the Buyer shall deliver to each Seller the total
purchase price set forth next to such Seller's name on SCHEDULE I hereto by wire
transfer to an account set forth in writing by such Seller not less than two
business days prior to the date of Closing. The closing of the purchase and sale
contemplated above shall take place at the offices of the Buyer at 11:00 a.m. on
October 12, 2005, or at such other place or time as the parties shall agree in
writing (the "Closing").
3.2 CONDITIONS. The obligation of the Buyer to purchase and pay for the
Schedule I Shares at the Closing is subject to the satisfaction or waiver of the
following conditions: (a) all partnership and other action, proceedings and
documentation required to be taken or made by any Seller, including the receipt
of any necessary consents of third parties, have been taken or obtained by the
Sellers and shall be disclosed, provided and reasonably satisfactory to the
Buyer; and (b) the representations and warranties made by each Seller herein
shall be true and correct when made and at the time of the Closing, with the
same force and effect as if they had been made at and as of the time of the
Closing.
3.3 VOTING ARRANGEMENT.
(a) Commencing on the date hereof and for so long as the Company
shall fail to give effect to the sale hereunder of the Schedule I Shares,
including the transfer of ownership thereof in all respects and for all purposes
(including by way of failing to transfer ownership thereof on its books and
records pursuant to the stock powers referred to in Section 3.1 upon presentment
thereof), each Seller hereby irrevocably grants to, and appoints, the Buyer and
any designee thereof, such Seller's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of such Seller, to attend
any meeting of the stockholders of the Company on behalf of such Seller, to
include such shares in any computation for purposes of establishing a quorum at
any meeting of stockholders of the Company, and to vote all such shares
beneficially owned or controlled by such Seller, or to grant a consent or
approval in respect of such shares, in connection with any meeting of the
stockholders of the Company or any action by written consent in lieu of a
meeting of stockholders of the Company in connection with any and all matters
that may be submitted to the stockholders of the Company in any way.
(b) Each Seller hereby represents that any proxies heretofore given
in respect of the Schedule I Shares, if any, are revocable, and hereby revokes
such proxies.
(c) Each Seller hereby affirms that the irrevocable proxy by him,
her or it set forth in this Section 3.3 is given in connection with the
execution of this Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of such Seller under this Agreement, including
causing the sale and transfer of the Schedule I Shares to the Buyer hereunder.
Each Seller hereby further affirms that such irrevocable proxy is coupled with
an interest and is intended to be irrevocable in accordance with the provisions
of Section 212 of the Delaware General Corporation Law (the "DGCL"). If for any
reason the proxy granted herein is not irrevocable, then each Seller agrees that
it shall vote his, her or its Schedule I Shares as instructed by the Buyer in
writing. The parties agree that the foregoing shall be a voting agreement
created under Section 218 of the DGCL.
(d) Each Seller shall execute and deliver any additional documents
and take such further actions as may be reasonably necessary or desirable to
carry out all of the provisions hereof, including all of the Sellers'
obligations under this Agreement, including the terms of this Section 3.3.
ARTICLE IV
COVENANTS
4.1 STANDSTILL. Each Seller agrees that, during the period commencing
on the date hereof and ending on the earlier of (x) three months after the date
hereof and (y) consummation of the transactions contemplated hereby, such Seller
will not, and will not permit any of its affiliates or agents to, directly or
indirectly, in any manner, acquire, agree or offer to acquire, or assist, aid,
abet or act in concert with any person to acquire any securities or assets of
the Company or any of its subsidiaries.
4.2 PRICE PROTECTION. In the event of a Resale (as such term is defined
below) by the Buyer of any shares originally purchased hereunder from the
Sellers (the "Protected Shares"), the Buyer hereby agrees to pay to each Seller,
in the same proportion that such Sellers sold the Protected Shares to the Buyer
hereunder, an amount in cash equal to 50% of the positive difference between (a)
the aggregate cash purchase price, including allocable costs, originally paid by
the Buyer hereunder for such Protected Shares and (b) the aggregate cash
proceeds, net of allocable costs and, if any, short swing profit liability,
actually realized by the Buyer for such Protected Shares in such Resale. For
purposes hereof, a "Resale" means (a) any transaction, to the extent fully
consummated (including without limitation the payment in full of the applicable
purchase price) within 12 months of the date hereof, in which the Buyer in a
BONA FIDE sale first resells such Protected Shares for cash, or (b) any cash
tender offer requiring public disclosure thereof as such pursuant to Section
14(d) of the 1934 Act and the rules thereunder by parties unaffiliated with any
party hereto that is consummated in full within 12 months of the date hereof as
to which the Buyer does not participate with respect to such Protected Shares.
ARTICLE V
SELLER CAPACITY
5.1 Anything in this Agreement to the contrary notwithstanding, no
person executing this Agreement who is or becomes during the term hereof a
director or officer of the Company makes any agreement or understanding herein
or is obligated hereunder in his or her capacity as such director or officer.
Each Seller signs solely in his or her capacity as the record holder and
beneficial owner (as further set forth on SCHEDULE I hereto) of such Seller's
Schedule I Shares, and nothing herein shall limit or affect any actions taken by
any Seller in such Seller's capacity as an officer or director of the Company.
Accordingly, and by way of non-exhaustive example, if a Seller is a director of
the Company, nothing in this Agreement shall prohibit or otherwise restrict such
Seller in his or her capacity as a director to vote for any transaction that is
an alternative to the transactions contemplated hereby.
ARTICLE VI
GENERAL PROVISIONS
6.1 FEES AND EXPENSES. Each of the parties shall be responsible for its
own fees and expenses (including, without limitation, the fees and expenses of
financial consultants, investment bankers, accountants and counsel) in
connection with the entering into of this Agreement and the consummation of the
transactions contemplated hereby.
6.2 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by telecopier or overnight courier (providing proof
of delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
if to the Buyer, to:
c/o Dolphin Asset Management Corp.
000 xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx and Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
with copies to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telecopier No.: (000) 000-0000
if to any Seller, to the address set forth on SCHEDULE I hereto
for such Seller, with copies to:
Xxxxxx Xxxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
6.3 INTERPRETATION. When a reference is made in this Agreement to a
Section or Schedule, such reference shall be to a Section of or Schedule to,
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The words "date hereof" shall refer to the date of this Agreement.
The term "or" is not exclusive. The word "extent" in the phrase "to the extent"
shall mean the degree to which a subject or other thing extends, and such phrase
shall not mean simply "if." The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms. Any
agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from
time to time amended, modified or supplemented. References to a person are also
to its permitted successors and assigns.
6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including telecopy), all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
6.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement (a)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and (b) is not intended to confer upon any
person other than the parties hereto (and their respective successors and
assigns) any rights or remedies.
6.6 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
6.7 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned, in whole or in part (except by
operation of law), by any of the parties hereto without the prior written
consent of the other parties hereto, except that the Buyer may assign, in its
sole discretion, any of or all its rights, interests and obligations under this
Agreement to any parent or to any direct wholly-owned subsidiary of any parent,
but no such assignment shall relieve the Buyer of any of its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by, the parties hereto and
their respective successors and assigns.
6.8 CONSENT TO JURISDICTION. Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Delaware Court of Chancery or any federal court of
the United States of America sitting in the State of Delaware or in the Southern
District of New York, and any appellate court from any thereof, in any suit,
action or other proceeding arising out of or relating to this Agreement or the
agreements delivered in connection herewith or the transactions contemplated
hereby or thereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereby irrevocably and unconditionally: (a)
agrees not to commence any such action or proceeding except in such courts; (b)
agrees that any claim in respect of any such action or proceeding may be heard
and determined in the Delaware Court of Chancery or, to the extent permitted by
law, in such federal court; (c) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in the Delaware Court of
Chancery or any such federal court; and (d) waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in the Delaware Court of Chancery or any such federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 6.2. Nothing in this Agreement shall
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
6.9 WAIVER OF JURY TRIAL. Each party hereto hereby waives, to the
fullest extent permitted by Applicable Laws, any right it may have to a trial by
jury in respect of any suit, action or other proceeding directly or indirectly
arising out of, under or in connection with this Agreement. Each party hereto
(a) certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such party would not, in the event of
any action, suit or proceeding, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement, by, among other things, the mutual waiver and
certifications in this Section 6.9.
6.10 ENFORCEMENT. The parties agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any Delaware Court of Chancery or any federal court of the
United States of America sitting in the State of Delaware or in the Southern
District of New York, this being in addition to any other remedy to which they
are entitled at law or in equity.
6.11 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
6.12 AMENDMENTS; WAIVERS. Any provision of this Agreement may be
amended or waived, but only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or, in the
case of a waiver, by each party against whom the waiver is to be effective.
6.13 FURTHER ASSURANCES. Promptly upon request by the Buyer, each
Seller shall execute, acknowledge, deliver, file, re-file, register and
re-register, any and all such further acts, certificates, assurances and other
instruments as the Buyer may require from time to time in order to: (a) carry
out more effectively the purposes and intent of this Agreement; (b) enable the
Buyer to exercise and enforce their respective rights and remedies hereunder;
and (c) to better transfer, preserve, protect and confirm to the Buyer the
rights granted or now or hereafter intended to be granted to them hereunder or
under each other instrument executed in connection with or pursuant to this
Agreement.
[signatures on next page]
IN WITNESS WHEREOF, the Buyer and each Seller have caused this Stock Purchase
Agreement to be duly executed as of the day and year first above written.
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx
RHL ASSOCIATES, L.P.
By: Lipton Financial Services, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Its: President
DOLPHIN DIRECT EQUITY PARTNERS, L.P.
By: Dolphin Advisors, LLC
Its: Managing Partner
By: Dolphin Management, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Its: President
SCHEDULE I
OWNERSHIP OF COMMON STOCK
Number of Shares Purchase
Name of Seller of Common Stock Price
-------------- ---------------- -----
XXXXX XXXXXX 1,033,604 $516,802.00
RHL ASSOCIATES, L.P., 634,619 $317,309.50
XXXX XXXXXX 49,000 $24,500.00
---------------------------------------------
Total 1,717,223 $858,611.50
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