Exhibit 10.13
FORFEITURE AGREEMENT
THIS FORFEITURE AGREEMENT (the "Agreement") is made as of June 6, 1999,
by and between Commonwealth Principals II LLC, a Delaware limited liability
company ("Commonwealth"), and Clarant Worldwide Corporation, a Delaware
corporation ("Clarant").
RECITALS
A. Commonwealth is the majority shareholder of Clarant.
B. In connection with the initial public offering of shares of Clarant common
stock (the "IPO"), Clarant will, simultaneously with the closing of the IPO,
close on the acquisition by merger of all of the capital stock of RSI Group,
Inc., a Texas corporation ("RSI"), pursuant to the terms and conditions of that
certain Agreement and Plan of Organization dated June 1, 1999 (the "Merger
Agreement"), by and among Clarant, RSI I Acquisition Corp., a Texas corporation,
RSI, Resource Solutions International, LLC, a Texas limited liability company,
Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxx and Xxxxx X. Xxxxx (collectively, such
individuals being the "Stockholders").
C. Pursuant to the Merger Agreement, Clarant has agreed that at the closing of
the transactions contemplated by the Merger Agreement (i) if the IPO price per
share of Clarant common stock is $11.00 or greater, then Clarant will issue to
the Stockholders 1,094,545 shares of Clarant common stock plus cash of
$469,091.71 times the IPO price per share of Clarant common stock, but (ii) if
the IPO price per share of Clarant common stock is less than $11.00, Clarant
will issue to the Stockholders $5,160,008.81 in cash plus a sufficient number of
shares of Clarant common stock (valued at the IPO price per share) in addition
to the 1,094,545 shares of Clarant common stock such that the total
consideration paid to the Stockholders is $17,200,000.00.
D. Commonwealth has agreed to bear the economic burden of Clarant's commitment
under the Merger Agreement to issue additional shares of Clarant common stock if
the IPO price per share of Clarant common stock is less than $11.00 and,
accordingly, Commonwealth and Clarant desire to arrange for the delivery by
Commonwealth to Clarant of that number of shares of Clarant Common Stock in
excess of 1,094,545 shares that Clarant is required to deliver to the
Stockholders if the IPO price per share of Clarant common stock is less than
$11.00.
NOW THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Commonwealth and Clarant hereby agree as follows:
1. FORFEITURE OF SHARES. Commonwealth agrees that if the IPO price per
share of Clarant common stock is less than $11.00, then Commonwealth will,
simultaneously with the
closing of the transactions contemplated by the Merger Agreement, deliver to
Clarant, at no cost to Clarant, that number of shares of Clarant common stock
equal to the number of shares of Clarant common stock in excess of 1,094,545
shares that Clarant issues to the Stockholders pursuant to the Merger Agreement.
2. FURTHER ASSURANCES. The parties hereto shall from time to time, at
the request of any party hereto, execute and deliver such other instruments of
conveyance and transfer and take such other actions as such party hereto may
reasonably request, in order to more effectively consummate the transactions
contemplated by this Agreement.
3. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements
between the parties (written or oral) with respect to the subject matter of this
Agreement and is intended as a complete and exclusive statement of the terms of
the agreement between the parties. This Agreement may be amended or modified
only by a written instrument duly executed by the parties.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with laws of the State of Delaware, without regard to its principles
of conflicts of laws.
5. HEADINGS. 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.
6. PARTIES IN INTEREST. All the terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective legal representatives, successors and assigns.
7. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
entitle any person other than Commonwealth or Clarant or their respective
successors and assigns permitted hereby to any claim, cause of action, remedy or
right of any kind.
8. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforce able in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in such or any other jurisdiction. If any provision of this Agreement
is so broad as to be unenforceable, such provision shall be interpreted to be
only so broad as is enforceable.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, no one of which needs to be executed by both parties, and this
Agreement shall be binding upon both parties with the same force and effect as
if both parties had signed the same document, and each such signed counterpart
shall constitute an original of this Agreement. In addition, this
Agreement may be executed by facsimile signatures and such signatures shall be
deemed originals.
10. JURISDICTION. Any judicial proceeding brought against any of the
parties hereto, with respect to this Agreement, may be brought in any court of
competent jurisdiction in the Commonwealth of Virginia, irrespective of where
such party may be located at the time of such proceeding, and by execution and
delivery of this Agreement, each of the parties hereto hereby consents to the
jurisdiction of any such court and waives any defense or opposition to such
jurisdiction. Each party hereby waives the right to trial by jury in any
judicial proceeding referred to in this Section 10.
11. SPECIFIC PERFORMANCE; REMEDIES. Each party hereto acknowledges that
the other parties will be irreparably harmed and that there will be no adequate
remedy at law for any violation by any of them of any of the covenants or
agreements contained in this Agreement, including without limitation. It is
accordingly agreed that, in addition to any other remedies which may be
available upon the breach of any such covenants or agreements, each party hereto
shall have the right to obtain injunctive relief to restrain a breach or
threatened breach of, or otherwise to obtain specific performance of, the other
parties, covenants and agreements contained in this Agreement.
IN WITNESS WHEREOF, Commonwealth and Clarant have caused this Agreement
to be executed as of the date first above written.
COMMONWEALTH PRINCIPALS II LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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Date:
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CLARANT WORLDWIDE CORPORATION,
a Delaware corporation
By:
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Name:
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Title:
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Date:
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