EXHIBIT 99.1
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of June 5, 2003, by and
among BET Associates, L.P., a Delaware limited partnership ("BET"), and NWCI
Holdings, LLC, a Delaware limited liability company ("NWCI", and together with
BET, each a "Seller" and collectively, the "Sellers"), and Greenlight Capital,
L.P., Greenlight Capital Qualified, L.P. and Greenlight Capital Offshore, Ltd.
(collectively, the "Purchasers").
WITNESSETH:
WHEREAS, on the date hereof, BET owns an aggregate of (i) 12,073.554
shares of the Series F Preferred Stock (in addition to payment-in-kind dividends
accrued on such shares), par value $0.001 per share (the "Series F Preferred
Stock"), of New World Restaurant Group, Inc., a Delaware corporation (the
"Company"), (ii) 5,066,026 shares of the common stock, par value $0.001 per
share ("Common Stock"), of the Company, and (iii) warrants to acquire an
aggregate of 1,337,364 shares of Common Stock of the Company (the "Warrants"
and, collectively with the shares of Series F Preferred Stock and Common Stock,
the "Securities");
WHEREAS, BET intends to transfer the Securities, together with any and
all rights (the "Exchange Rights") the Sellers may have to receive Securities or
any securities convertible into or exercisable for Securities relating to BET's
investment in the Series F Preferred Stock, including, without limitation, the
right to receive warrants to purchase Common Stock pursuant to Section 2 of that
certain Exchange Agreement dated January 18, 2001 by and among the Company, BET
and Brookwood New World Investors, LLC, as amended on June 19, 2001 and as of
June 3, 2003 (as amended, the "Exchange Agreement") to NWCI prior to the Closing
(as defined herein);
WHEREAS, the Sellers desire to sell and transfer to the Purchasers all
of the membership interests in NWCI (the "Membership Interests") and NWCI's
beneficial ownership of the Securities and the Exchange Rights, and the
Purchasers desire to purchase from the Sellers the Membership Interests and
NWCI's beneficial ownership of the Securities and the Exchange Rights all as
more specifically provided herein; and
WHEREAS, the Sellers desire to grant to the Purchasers an irrevocable
proxy to vote the Securities.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Membership Interests, Exchange Rights and Securities
1.1 Purchase and Sale of Membership Interests, Exchange Rights and
Securities. (a) Upon the terms and subject to the conditions of this Agreement
and on the basis of the representations, warranties, covenants and agreements
contained herein, (i) at or prior to the Closing, the Sellers shall sell,
assign, transfer, convey and deliver to NWCI (a) the Securities and
(b) the Exchange Rights, and (ii) at the Closing, the Sellers shall sell,
assign, transfer, convey and deliver to the Purchasers all outstanding
Membership Interests and beneficial ownership of the Securities and the Exchange
Rights, and the Purchasers shall purchase the Membership Interests and NWCI's
beneficial ownership of the Securities and the Exchange Rights from the Sellers
for an aggregate cash purchase price of $8,300,000 (the "Purchase Price"). The
Purchase Price shall be allocated among the Purchasers and the Securities as set
forth in Schedule 1.1 attached hereto. At the Closing, the Purchasers shall pay
the Purchase Price by wire transfer of immediately available funds to an account
or accounts previously specified by the Sellers.
(b) The closing of the purchase and sale of the Membership Interests
and NWCI's beneficial ownership of the Securities and the Exchange Rights (the
"Closing") shall occur on or prior to 1:00 p.m. New York City time on June 6,
2003. The date of the Closing is hereinafter referred to as the "Closing Date."
1.2 Transactions to be Effected at Closing.
At the Closing:
(a) The Sellers shall surrender to the Purchasers the
certificate or certificates in their possession representing the Series F
Preferred Stock and Common Stock owned by the Sellers.
(b) The Sellers shall surrender to the Purchasers or, at the
Purchasers' direction, the Company, the Warrants in their possession.
(c) The Sellers shall surrender to the Purchasers such
evidence of the transfer of the Membership Interests as the Purchasers shall
reasonably request (it being understood that the Membership Interests are
uncertificated).
(d) The Sellers shall provide a notice to the Purchasers for
delivery to the Company in form and substance reasonably satisfactory to the
Purchasers including (i) notice of the transactions contemplated hereby, (ii)
the items contained in Section 2.3, and (iii) instructions to deliver any
certificate or certificates representing the Series F Preferred Stock and Common
Stock or Warrants owned by the Sellers not in the Sellers' possession to the
Purchasers.
(e) The Purchasers shall deliver the Purchase Price to the
Sellers in accordance with Section 1.1.
(f) Each of the parties shall execute and deliver to the other
parties hereto such other documents or instruments as any party hereto
reasonably requests to effect the transactions contemplated hereby.
ARTICLE II
Irrevocable Proxy
2.1 Grant of Proxy. In consideration for the execution of this
Agreement, the agreement of the Purchasers to purchase the Membership Interests
and beneficial ownership of the Securities and the Exchange Rights, and other
good, valuable and binding consideration, the
-2-
receipt and sufficiency of which is hereby acknowledged by each of the Sellers,
the Sellers, as of the execution of this Agreement and subject to the last
sentence of this Section 2.1, hereby irrevocably constitute and appoint the
Purchasers as their sole and exclusive and true and lawful proxy, agent and
attorney-in-fact with full power of substitution and resubstitution to vote (or
give written consent with respect to) all of the Securities and any other
securities hereafter acquired by the Sellers in respect of the Series F
Preferred Stock or the Exchange Rights, on any and all matters which may be
presented for the vote (or consent) of the stockholders of the Company or the
holders of such Securities or after acquired securities and to exercise all of
the Sellers' rights to call meetings of the stockholders of the Company to
consider any issues that may properly be brought before such meetings as if the
undersigned were personally present at any such meeting and voting such
Securities or personally acting on any matter submitted to the Sellers for
approval or consent. Notwithstanding the foregoing, the provisions of this
Section 2.1 shall terminate and have no further force or effect if the Closing
does not occur on or prior to Friday, June 6, 2003.
2.2 Acknowledgement. The Sellers acknowledge and agree that this proxy
is irrevocable and is coupled with an interest, and shall expire upon the
Closing Date in the event that the Closing does not occur.
2.3 Information Rights. NWCI shall instruct the Company to provide all
materials which the Company would have otherwise provided to NWCI as a
stockholder of the Company pursuant to the by-laws of the Company in connection
with the vote of the stockholders of the Company, to the Purchasers at the
address specified by Purchasers in writing to the Company. In any event, should
any Seller receive any such materials, it shall immediately forward such
materials via courier to the Purchasers.
ARTICLE III
Representations and Warranties Regarding the Sellers
The Sellers hereby jointly and severally represent and warrant to the
Purchasers as follows on the date hereof or on the Closing Date:
3.1 Authorization. The Sellers have the power and authority to execute,
deliver and perform this Agreement and to sell and deliver the Membership
Interests and beneficial ownership of the Securities and the Exchange Rights as
contemplated hereby, all of which have been duly authorized by all requisite
limited liability company, partnership, trust or foundation action, as the case
may be. This Agreement has been duly authorized, executed and delivered by the
Sellers and constitutes a valid and binding obligation of the Sellers,
enforceable against the Sellers in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
3.2 No Consents. Except for notice to the Company (which shall be
delivered to the Company on the Closing Date), no notice to, filing with, or
authorization, registration, consent or approval of any governmental authority
or other individual, partnership, corporation, joint stock company,
unincorporated organization or association, trust or joint venture, or a
governmental agency or political subdivision thereof (each, a "Person") is
necessary for the execution, delivery
-3-
or performance of this Agreement or the consummation of the transactions
contemplated hereby by the Sellers.
3.3 No Voting of Securities. The Sellers have not consented to or voted
in favor of or against the Company's issuance of any debt security other than
with respect to debt outstanding on the date hereof, including specifically the
issuance of the high-yield notes that are currently the subject of a Rule 144A
offering, and NWCI still has full rights to vote on or consent to any such
issuance.
3.4 Ownership of the Membership Interests, Securities and Exchange
Rights. BET owns the Membership Interests and, on the date hereof, the
Securities and the Exchange Rights, and, as of the Closing, NWCI will own the
Securities and the Exchange Rights, beneficially and of record, free and clear
of any lien, encumbrance, Order (as defined herein), security interest, Contract
(as defined herein), easement, covenant, community property interest, equitable
interest, right of first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income, or exercise of any
other attribute of ownership (collectively, "Encumbrances"), other than those
arising under applicable federal and state securities laws and the transfer
restrictions relating to the Securities contained in the Exchange Agreement and
the restrictions relating to the Securities contained in the Stockholders'
Agreement (the "Stockholders' Agreement") and the restrictions relating to the
Securities contained in the Registration Rights Agreement (the "Registration
Rights Agreement"), in each case among the Company and certain stockholders of
the Company. As of the date hereof and as of the Closing Date, other than the
Securities, the Sellers do not own any shares of Series F Preferred Stock,
Common Stock or any warrants relating to the Sellers' investment in the Series F
Preferred Stock, nor do the Sellers have any other rights to acquire any
warrants or shares of Series F Preferred Stock or Common Stock relating to the
Sellers' investment in the Series F Preferred Stock other than the Securities
and the Exchange Rights or pursuant to the preemptive rights provisions of the
Stockholders' Agreement. There are no agreements (i) granting any option,
warrant or right of first refusal with respect to the Membership Interests, the
Securities or the Exchange Rights to any Person, (ii) restricting the right of
the Sellers to sell the Membership Interests and beneficial ownership of the
Securities or the Exchange Rights to the Purchasers, or (iii) restricting any
other right of the Sellers with respect to the Membership Interests, the
Securities or the Exchange Rights other than restrictions on voting the
Securities contained in the Stockholders' Agreement, the restrictions relating
to the Securities contained in the Registration Rights Agreement and the
restrictions on transfer relating to the Securities contained in the Exchange
Agreement. Subject to compliance with the requirements of the Securities Act of
1933, as amended (the "Act"), the Sellers have the absolute and unrestricted
right, power and capacity to sell, assign and transfer the Membership Interests
and NWCI's beneficial ownership of the Securities and the Exchange Rights to the
Purchasers free and clear of any Encumbrances (except for Encumbrances arising
under applicable federal and state securities laws). Upon delivery of the
Membership Interests to the Purchasers in exchange for the Purchase Price, the
Purchasers will acquire good and valid title to the Membership Interests and
NWCI's beneficial ownership of the Securities and the Exchange Rights, free and
clear of any Encumbrances created by the Sellers and except for the transfer
restrictions relating to the Securities contained in the Exchange Agreement and
the restrictions relating to the Securities contained in the Stockholders'
Agreement and the restrictions relating to the Securities contained in the
Registration Rights Agreement; provided, however, that with respect to any
Securities that have
-4-
not been certificated and delivered to the Sellers, the Purchasers shall acquire
beneficial ownership of such Securities upon issuance and delivery of the
applicable certificates and the Sellers acknowledge and agree that they shall
take such actions as may be necessary or appropriate to effect the delivery of
such certificates as contemplated by Section 5.1.
3.5 Non-Interference. Each of the Sellers hereby covenants and agrees
that it shall not (i) offer to transfer (which term shall include, without
limitation, any sale, tender, gift, pledge, assignment or other disposition),
transfer, or consent to any transfer of, any or all of the Membership Interests,
or any Securities or any Exchange Rights, or any interest therein owned by NWCI,
(ii) enter into any contract, agreement, arrangement, Commitment (as defined
herein), letter of intent, memorandum of understanding, promise, obligation,
right, instrument, document, or other similar understanding, whether written or
oral (each, a "Contract"), option or other agreement or understanding with
respect to any transfer by the Sellers of any or all of the Membership Interests
or by NWCI of the Securities or the Exchange Rights or any interest therein,
(iii) grant any proxy, power-of-attorney or other authorization or consent in or
with respect to the Membership Interests, the Securities or the Exchange Rights,
(iv) deposit the Membership Interests, the Securities or the Exchange Rights
into a voting trust or enter into a voting agreement or arrangement with respect
to the Membership Interests, the Securities or the Exchange Rights, or (v) take
any other action that would make any term contained herein untrue or incorrect
or in any way restrict, limit or interfere with the performance of the Sellers'
obligations hereunder.
3.6 Brokers. No Person is or will be entitled to a broker's, finder's,
investment banker's, financial adviser's or similar fee from the Sellers in
connection with this Agreement or any of the transactions contemplated hereby.
3.7 Entity Status. NWCI is a limited liability company duly created,
formed or organized, validly existing, and in good standing under the laws of
the State of Delaware. Since its organization, NWCI has not conducted any
activities other than in connection with this Agreement and the transactions
contemplated hereby. The Sellers have delivered to the Purchasers correct and
complete copies NWCI's organizational documents, as amended to date. NWCI is not
in (a) any breach, inaccuracy, failure to perform, failure to comply, conflict
with, failure to notify, default, or violation or (b) any other act, omission,
event, occurrence or condition the existence of which would (i) permit any
Person to accelerate any obligation or terminate, cancel, or modify any right or
obligation or (ii) require the payment of money or other consideration (each, a
"Breach") of any provision of its organizational documents. There is no pending
or, to the knowledge of the Sellers, threatened (orally or in writing) Action
(as defined herein) (or past or current fact, situation, circumstance, status,
condition, activity, practice or plan (collectively, a "Basis") therefor) for
the dissolution, liquidation, insolvency, or rehabilitation of NWCI.
3.8 Limited Liability Company Agreement. Sellers have provided the
Purchasers with a true and correct copy of NWCI's limited liability company
agreement, including all amendments thereto.
3.9 Assets and Liabilities. As of the Closing Date, except for this
Agreement and the transactions contemplated hereby or otherwise based upon or
relating to the foregoing, NWCI
-5-
will have (i) no assets other than the Securities and the Exchange Rights and
(ii) no liability or obligation, whether known or unknown, asserted or
unasserted, absolute or contingent, matured or unmatured, conditional or
unconditional, latent or patent, accrued or unaccrued, liquidated or
unliquidated, or due or to become due (collectively, "Liabilities") (and, except
for this Agreement and the transactions contemplated hereby, there is no Basis
for any present or future action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry,
investigation or similar event, occurrence, or proceeding (each, an "Action") or
order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept,
command, directive, consent, approval, award, judgment, injunction, or other
similar determination or finding by, before, or under the supervision of any
governmental body, arbitrator, or mediator (each, an "Order") against NWCI
giving rise to any Liability).
3.10 No Violation. The execution and the delivery of this Agreement by
the Sellers and the performance of its obligations hereunder, and consummation
of the transactions contemplated hereby will not (a) Breach any law (statutory,
common, or otherwise), constitution, treaty, convention, ordinance, equitable
principle, code, rule, regulation, executive order, or other similar authority
enacted, adopted, promulgated, or applied by any governmental body, each as
amended and now and hereinafter in effect (each, a "Law") or Order to which the
Sellers are subject or any provision of the organizational documents of NWCI;
provided, however, that the Sellers make no representations with respect to any
Action or violation of Law arising out of or relating to the sale to the
Purchasers or the ownership by the Purchasers of the Securities or the Exchange
Rights; (b) Breach any Contract, Order, or any permit, license, certificate,
approval, consent, notice, waiver, franchise, registration, filing,
accreditation, or other similar authorization required by any Law, governmental
body, or Contract (each, a "Permit") to which any Seller is a party or by which
it is bound or to which any of its assets is subject (or result in the
imposition of any Encumbrance upon any of its assets); (c) trigger any rights of
first refusal, preferential purchase, or similar rights; or (d) cause the
recognition of gain or loss for tax purposes by NWCI or subject NWCI or its
assets to any federal, state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental (including taxes under Code Section 59A), customs, ad
valorem, duties, capital stock, franchise, profits, withholding, social
security, unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not ("Tax").
3.11 Capitalization. All of the issued and outstanding Membership
Interests: (a) have been duly authorized and are validly issued, fully paid, and
nonassessable, (b) were issued in compliance with all applicable state and
federal securities laws, (c) were not issued in Breach of any (i) options,
warrants, convertible securities, exchangeable securities, subscription rights,
conversion rights, exchange rights, or other similar Contracts that could
require NWCI to issue any of its Membership Interests; (ii) any other securities
convertible into, exchangeable or exercisable for, or representing the right to
subscribe for Membership Interests; (iii) statutory pre-emptive rights or
pre-emptive rights; and (iv) stock appreciation rights, phantom stock, profit
participation, or other similar rights (collectively, "Commitments"), and (d)
are held of record and owned beneficially by BET. There are no Contracts with
respect to the voting or transfer of the Membership Interests. The Company is
not obligated to redeem or otherwise acquire any of its outstanding Membership
Interests.
-6-
3.12 Legal Compliance. NWCI has complied with all applicable Laws, and
no Action is pending or, to the knowledge of the Sellers, threatened (orally or
in writing) (and there is no Basis therefor) against it alleging any failure to
so comply. No material expenditures are, or based on applicable Law based on
current operations, will be required of NWCI for it to remain in compliance with
applicable Law; provided, however, that the Sellers make no representations with
respect to any Action or violation of Law arising out of or relating to the sale
to the Purchasers or the ownership by the Purchasers of the Securities or the
Exchange Rights.
3.13 Litigation. NWCI (a) is not subject to any outstanding Order or
(b) is not a party, the subject of, or is, to the knowledge of the Sellers,
threatened (orally or in writing) to be made a party to or the subject of any
Action, except for statements made by counsel to the Company that have been
disclosed to the Purchasers.
3.14 No Director Action. Neither the Indemnified Person (as defined
herein), in his capacity as a director of the Company, nor the board of
directors of the Company (the "Board") has taken any action or voted for or
against anything in relation to, in connection with or otherwise arising out of,
this Agreement or the consummation of the transactions contemplated hereby other
than the action taken at the telephonic meeting of the Board on June 2, 2003 and
reconvened on June 3, 2003 to approve that certain Amendment No. 2 to the
Exchange Agreement, dated as of June 3, 2003.
3.15 Accuracy of Information Furnished. No representation, statement,
or information contained in this Agreement or any Contract or document executed
in connection herewith or delivered pursuant hereto or thereto or made available
or furnished to the Purchasers or their representatives by any Seller contains
or will contain any untrue statement of a material fact or omits or will omit
any material fact necessary to make the information contained therein not
misleading.
ARTICLE IV
Representations and Warranties Regarding the Purchaser
The Purchasers hereby, jointly and severally, represent and warrant to
the Sellers as follows on the date hereof or on the Closing Date:
4.1 Authorization. The Purchasers have the power and authority to
execute and deliver this Agreement and to perform their obligations hereunder,
all of which have been duly authorized by all requisite corporate or partnership
action. This Agreement has been duly authorized, executed and delivered by the
Purchasers and constitutes a valid and binding agreement of the Purchasers,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
4.2 Access to Information. The Purchasers have received all information
regarding the Company and NWCI that they deem necessary or advisable to evaluate
the risks and merits of an investment in the Membership Interests. In addition,
the Purchasers have had an opportunity to ask questions of and receive answers
from representatives of the Company concerning the business of the Company, its
condition and prospects (financial and other) and
-7-
the terms and conditions of the sale of the Membership Interests as contemplated
hereby. In determining to purchase the Membership Interests, the Purchasers have
not relied upon any information provided by the Sellers concerning the Company.
4.3 Accredited Investor. The Purchasers are "Accredited Investors" as
such term is defined in Rule 501 of the rules and regulations of the Securities
and Exchange Commission promulgated under the Act.
4.4 Investment Decision.
(a) The Purchasers are acquiring the Membership Interests for
their own account for investment only and not for or with a view to resale or
distribution of the Membership Interests in violation of the Act. The Purchasers
have not entered into any Contract, undertaking, agreement or arrangement with
any Person to sell, transfer or pledge to such person or anyone else the
Membership Interests in violation of the Act and the Purchasers have no present
plans or intentions to enter into any such Contract, undertaking, agreement or
arrangement.
(b) The Purchasers have the financial ability to bear the
economic risk of losing their entire investment in the Membership Interests, are
prepared to bear the economic risk of its investment and can afford to sustain a
complete loss of its investment therein.
(c) The Purchasers have substantial experience in making
investment decisions of this type and, therefore, have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of an investment in the Membership Interests.
(d) The Purchasers understand that the Membership Interests
constitute restricted securities within the meaning of Rule 144 promulgated
under the Act, and that none of the Securities, or any interest therein, may be
sold except pursuant to an effective registration statement under the Act or in
a transaction exempt from registration under the Act, and understand the meaning
and effect of such restriction. The Purchasers acknowledge that the certificates
representing the Securities contain, and the certificates representing any
shares of Common Stock issued upon the exercise of the Warrants (the "Warrant
Shares") will contain, contain a legend summarizing the restrictions on transfer
of the Securities and the Warrant Shares.
(e) The Purchasers have considered and, to the extent they
believed such discussion was necessary, discussed with their professional legal,
tax and financial advisers the suitability of an investment in the Membership
Interests for the Purchasers' particular tax and financial situation and the
Purchasers have determined that the Securities are a suitable investment for
them.
4.5 Financial Resources. The Purchasers have, or have the absolute and
unconditional right to obtain prior to the Closing, sufficient financial
resources to enable it to consummate the transactions contemplated hereby.
-8-
4.6 Brokers. No person is or will be entitled to a broker's, finder's,
investment banker's, financial adviser's or similar fee from the Purchasers in
connection with this Agreement or any of the transactions contemplated hereby.
ARTICLE V
Covenants
5.1 Further Assurances. From and after the Closing, each of the parties
hereto shall execute and deliver such other documents, certificates, agreements
or instruments and shall take or cause to be taken such other actions as may be
necessary or appropriate to effect the sale and transfer of the Membership
Interests and NWCI's beneficial ownership of the Securities and the Exchange
Rights to the Purchasers as contemplated hereby.
5.2 Indemnification. The Purchasers, jointly and severally, shall, to
the extent not paid by the Company's directors and officers insurance, errors
and omissions insurance or other insurance or another indemnification or
contribution mechanism of the Company including, without limitation, finite risk
programs, trusts, self-insurance, indemnification or contribution agreements, or
indemnification or contribution provisions in the Company's organizational
documents or other Contracts (but only to the extent that the provider of such
payment has in writing agreed to indemnify the Indemnified Person (as
hereinafter defined) and advance expenses in connection with any Losses (as
hereinafter defined)), indemnify, defend and hold harmless Xxxxxxx Xxxxxxxxxx
(the "Indemnified Person"), in his capacity as a director of the Company, from
and against any and all damages, claims, costs, losses, liabilities, expenses or
obligations, including taxes, interest, penalties, fines, costs of compliance
with injunctive or other non-monetary relief, court costs and reasonable
attorneys' and accountants' fees and expenses incurred or suffered by the
Indemnified Person ("Losses") in connection with or otherwise arising out of
this Agreement and the consummation of the transactions contemplated hereby.
5.3 Release. (a) Each of the Purchasers, on behalf of itself, its
subsidiaries, parent entities, affiliates, officers, directors, employees,
partners, stockholders and members, and the officers, directors, employees,
partners, stockholders and members of each of the foregoing (together the
"Purchaser Releasing Parties"), hereby waives, discharges, and releases each of
the Sellers and each of their respective subsidiaries, parent entities,
affiliates, officers, directors , employees, partners, stockholders and members
(together the "Seller Released Parties") from any and all claims, losses,
damages, charges, actions, suits, proceedings, deficiencies, taxes, interests,
costs or expenses (including, but not limited to, court costs and reasonable
attorney fees), known or unknown, whether now or hereafter existing
(collectively, "Claims"), arising from any matter whatsoever relating in any way
to the Company, including, but not limited to, any Seller Released Party's
capacity as a stockholder, director, consultant or officer, whether formal or
informal, paid or unpaid, de facto or otherwise, that any or all of the
Purchaser Releasing Parties has or might have against any of the Seller Released
Parties based in any way on facts or circumstances that existed on or before the
date of this Agreement other than Claims based on a Breach of any
representation, warranty, obligation or covenant contained in this Agreement
(together, all such claims are referred to as the "Purchaser Released Claims").
Each of the Purchasers, on behalf of itself and the other Purchaser Releasing
Parties, expressly covenants that it will not commence any action or suit, or
prosecute any pending suit, in law or
-9-
equity, against any of the Seller Released Parties in whole or in part involving
any Purchaser Released Claims.
(b) Each of the Sellers, on behalf of itself, its
subsidiaries, parent entities, affiliates, officers, directors, employees,
partners, stockholders and members, and the officers, directors, employees,
partners, stockholders and members of each of the foregoing (together the
"Seller Releasing Parties"), hereby waives, discharges, and releases each of the
Purchasers and each of their respective subsidiaries, parent entities,
affiliates, officers, directors, employees, partners, stockholders and members
(together the "Purchaser Released Parties") from any and all Claims arising from
any matter whatsoever relating in any way to the Company, including, but not
limited to, any Purchaser Released Party's capacity as a stockholder, director,
consultant or officer, whether formal or informal, paid or unpaid, de facto or
otherwise, that any or all of the Seller Releasing Parties has or might have
against any of the Purchaser Released Parties based in any way on facts or
circumstances that existed on or before the date of this Agreement other than
Claims based on a Breach of any representation, warranty, obligation or covenant
contained in this Agreement (together, all such claims are referred to as the
"Seller Released Claims"). Each of the Sellers, on behalf of itself and the
other Seller Releasing Parties, expressly covenants that it will not commence
any action or suit, or prosecute any pending suit, in law or equity, against any
of the Purchaser Released Parties in whole or in part involving any Seller
Released Claims.
ARTICLE VI
Survival, Amendment and Waiver
6.1 Survival. The representations, warranties and covenants contained
in this Agreement or any certificate delivered in connection herewith shall
survive the sale of the Securities, the Membership Interests and the Exchange
Rights as contemplated hereby.
6.2 Amendments. This Agreement (including the provisions of this
Section 6.2) may not be amended or modified except by an instrument in writing
signed on behalf of all of the parties hereto affected by such amendment or
modification.
6.3 Extension; Waiver. The parties hereto may (i) extend the time for
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto,
and (iii) waive compliance with any of the agreements of the other parties
hereto or satisfaction of any of the conditions to such party's obligations
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of a party hereto to assert any of
its rights hereunder shall not constitute a waiver of such rights.
ARTICLE VII
Miscellaneous
7.1 Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered by courier, three days after
being deposited in the mail
-10-
(registered or certified mail, postage prepaid, return receipt requested), or
when received by facsimile transmission upon receipt of a confirmed transmission
report, as follows:
If to the Sellers: c/o BET Associates, L.P.
0000 Xxxxxxxx Xxxxxx
Fax: 000-000-0000
Attention: Xxxxx X. Toll
If to the Purchasers: c/o Greenlight Capital, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxxx
Any party hereto, by notice given to the other parties hereto in accordance with
this Section 7.1 may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party.
7.2 Expenses. Each of the parties hereto shall pay its own expenses
incident to this Agreement and the transactions contemplated herein.
7.3 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, Action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, Action or proceeding may be served on
each party hereto anywhere in the world by the same methods as are specified for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
Action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, Action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, Action or proceeding brought in any such court has been brought in an
inconvenient forum.
7.4 Specific Performance. The Sellers and the Purchasers acknowledge
and agree that in the event of any Breach of this Agreement, the Purchasers and
the Sellers, as the case may be, would be irreparably harmed and could not be
made whole by monetary damages. It is accordingly agreed that the Sellers and
the Purchasers, in addition to any other remedy to which they may be entitled at
law or in equity, are entitled to an injunction or injunctions to prevent
Breaches of this Agreement and/or to compel specific performance of this
Agreement in any Action instituted in any court permitted by the provisions of
Section 7.3 having subject matter jurisdiction.
7.5 Assignment; Successors and Assigns; No Third Party Rights. This
Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be
-11-
null and void. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors, permitted assigns and
legal representatives. This Agreement shall be for the sole benefit of the
parties to this Agreement and their respective heirs, successors, permitted
assigns and legal representatives and is not intended, nor shall be construed,
to give any Person, other than the parties hereto and their respective heirs,
successors, assigns and legal representatives, any legal or equitable right,
remedy or claim hereunder.
7.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
7.7 Titles and Headings. The titles and headings in this Agreement are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
7.8 Entire Agreement. This Agreement constitute the entire agreement
among the parties with respect to the matters covered hereby and thereby and
supersede all previous written, oral or implied understandings among them with
respect to such matters.
7.9 Severability. The invalidity of any portion hereof shall not affect
the validity, force or effect of the remaining portions hereof. If it is ever
held that any restriction hereunder is too broad to permit enforcement of such
restriction to its fullest extent, such restriction shall be enforced to the
maximum extent permitted by law.
7.10 Interpretation. Unless otherwise indicated to the contrary herein
by the context or use thereof: (i) the words, "herein," "hereto," "hereof" and
words of similar import refer to this Agreement as a whole and not to any
particular Section or paragraph hereof; (ii) words importing the masculine
gender shall also include the feminine and neutral genders, and vice versa; and
(iii) words importing the singular shall also include the plural, and vice
versa.
7.11 No Strict Construction. Each of the parties hereto acknowledge
that this Agreement has been prepared jointly by the parties hereto, and shall
not be strictly construed against either party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BET ASSOCIATES, L.P.
By: BRU LLC, its general partner
By:
--------------------------
Xxxxx X. Toll
Sole Member
NWCI HOLDINGS, LLC
By: BET ASSOCIATES, L.P., Sole Member
By: BRU LLC, its general partner
By:
--------------------------
Xxxxx X. Toll
Sole Member
-13-
GREENLIGHT CAPITAL, L.P.
By: Greenlight Capital, L.L.C., it general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
GREENLIGHT CAPITAL QUALIFIED, L.P.
By: Greenlight Capital, L.L.C., it general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
GREENLIGHT CAPITAL OFFSHORE, LTD.
By: Greenlight Capital, Inc., it investment advisor
By:
---------------------------
Name:
-------------------------
Title:
------------------------
-14-
SCHEDULE 1.1
PURCHASE PRICE ALLOCATION
Security Name Number of Securities Price of Securities
------------- -------------------- -------------------
Greenlight Capital Qualified, L.P.
Series F 4,186.554 2,860,660.23
Common 1,756.726 17,567.26
Warrants 463.764 --
Greenlight Capital, L.P.
Series F 878.000 599,811.55
Common 368.400 3,684.00
Warrants 97.200 --
Greenlight Capital Offshore, Ltd.
Series F 7,009.000 4,788,867.97
Common 2,940.900 29,409.00
Warrants 776.400 --
SCH-1
