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MARKETING SPECIALISTS CORPORATION
PREFERRED STOCK PURCHASE
AGREEMENT
DATED AS OF NOVEMBER 1, 2000
12,397 SHARES OF
SERIES B CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
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TABLE OF CONTENTS
PAGE
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1. PURCHASE AND SALE OF PREFERRED STOCK.....................................................1
1.1. Authorization of Preferred Stock.......................................1
1.2. Purchase Price and Closing.............................................1
1.3. Use of Proceeds........................................................2
1.4. Notes..................................................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................2
2.1. Organization, Standing and Power.......................................2
2.2. Authority..............................................................2
2.3. Enforceability.........................................................3
2.4. Valid Issuance.........................................................3
2.5. Capitalization.........................................................3
2.6. No Violation...........................................................3
2.7. Reports and Financial Statements.......................................4
2.8. Litigation.............................................................4
2.9. Registration Rights Agreement..........................................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..........................................4
3.1. Authorization..........................................................4
3.2. Purchase for Own Account...............................................4
3.3. Disclosure of Information..............................................5
3.4. Investment Experience..................................................5
3.5. Accredited Investor Status.............................................5
3.6. Restricted Securities..................................................5
3.7. Governmental Consents..................................................5
3.8. Further Limitations on Disposition.....................................5
3.9. Legends................................................................6
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS......................................6
4.1. Representations and Warranties.........................................6
4.2 Consents...............................................................6
5. DEFINITIONS..............................................................................7
6. INDEMNIFICATION..........................................................................8
6.1. General Indemnity......................................................8
6.2. Indemnification Procedure..............................................8
6.3. Indemnification Limitations............................................9
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PAGE
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7. MISCELLANEOUS............................................................................9
7.1. No Waiver; Cumulative Remedies.........................................9
7.2. HSR....................................................................9
7.3. Amendments, Waivers and Consents.......................................9
7.4. Notices...............................................................10
7.5. Binding Effect; Assignment............................................11
7.6. Survival of Representations and Warranties............................11
7.7. Severability..........................................................11
7.8. Governing Law.........................................................11
7.9. Headings..............................................................11
7.10. Counterparts..........................................................11
7.11. Closing Condition Waivers.............................................11
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PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is dated
this 1st day of November 2000, by and between Marketing Specialists
Corporation, a Delaware corporation (the "Company"), and MS Acquisition
Limited, a Texas limited partnership (the "Purchaser").
PRELIMINARY STATEMENTS
A. The Purchaser is a stockholder of the Company and is the assignee
of the Promissory Note, dated August 17, 2000, signed by the Company, in the
amount of $4,750,000 and the Promissory Note, dated August 30, 2000, signed
by the Company, in the amount of $4,999,999 (collectively, the "Promissory
Notes"). The Promissory Notes have accrued interest as of the date hereof in
the amount of $146,973.93.
B. The Purchaser desires to return the Promissory Notes to the
Company in consideration of the purchase of shares of the Company's Series B
Convertible Paid-In-Kind Preferred Stock, $0.01 par value per share (the
"Preferred Stock"), directly from the Company, subject to the terms and
conditions set forth herein.
C. The Purchaser desires to purchase additional shares of Preferred
Stock for cash, directly from the Company, subject to the terms and
conditions set forth herein.
D. The Company desires to sell shares of Preferred Stock to the
Purchaser, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
STATEMENT OF AGREEMENT
1. PURCHASE AND SALE OF PREFERRED STOCK
1.1. AUTHORIZATION OF PREFERRED STOCK. The Company has authorized
the issuance and sale of 12,397 shares (the "Shares") of its authorized but
unissued shares of Preferred Stock, having the rights set forth in the
Certificate of Incorporation of the Company.
1.2. PURCHASE PRICE AND CLOSING. The Company agrees to issue and
sell to the Purchaser, and in consideration of, and in express reliance upon,
the representations, warranties,
terms and conditions contained in, this Agreement, the Purchaser agrees to
purchase the Shares at a purchase price of $1,000 per share, for an aggregate
purchase price of $12,397,000. Subject to the terms and conditions contained
herein, the closing of the purchase and sale of the Shares to be acquired by
the Purchaser from the Company under this Agreement (the "Closing") shall
take place promptly upon satisfaction of all the conditions contained in
Section 4 of this Agreement shall have been satisfied or waived, or at such
other time and date as the Purchaser and the Company may agree (the "Closing
Date"), at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four
Times Square, Xxx Xxxx, XX 00000, or such other location as the parties
mutually agree. At the Closing, the Company will deliver to the Purchaser a
certificate of the Secretary or an Assistant Secretary of the Company, dated
the Closing Date, (a) attesting to corporate action taken by the Company,
including resolutions of the Board of Directors authorizing (i) the
execution, delivery and performance by the Company of this Agreement and (ii)
the issuance of the Shares, and (b) verifying that the Certificate of
Incorporation of the Company and the Bylaws of the Company currently on file
with the Commission are true, correct and complete as of the Closing Date. As
soon as practicable after the closing, but in any event not later than seven
business days, the Company will deliver to the Purchaser certificates
evidencing the Shares to be purchased by the Purchaser hereunder. At the
Closing, Purchaser shall deliver to the Company the Promissory Notes and
$2,500,027.07 by wire transfer of immediately available funds.
1.3. USE OF PROCEEDS. The Company shall use the cash proceeds from
the sale of the Shares for general corporate purposes including, without
limitation, working capital.
1.4. NOTES. Upon delivery to the Purchaser of the certificates
evidencing the Shares, the Promissory Notes shall be fully paid and the
Company shall have no further obligations thereunder.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as
follows:
2.1. ORGANIZATION, STANDING AND POWER. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has the requisite power and authority to own or lease
its properties and to carry on its business as presently conducted. There is
no pending or, to the Company's knowledge, threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of the Company. The
Company's operating subsidiaries are entities duly organized, validly
existing and in good standing under the laws of each such subsidiary's state
of organization, and each has the requisite power and authority to own or
lease its properties and to carry on its business as presently conducted.
There is no pending or, to the Company's knowledge, threatened proceeding for
the dissolution, liquidation, insolvency or rehabilitation of any of the
Company's operating subsidiaries.
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2.2. AUTHORITY. The Company has all requisite corporate power and
authority to enter into this Agreement, to issue and sell the Shares and to
carry out its obligations hereunder. The issuance and sale of the Shares by
the Company to the Purchaser has been unanimously approved by an independent
committee of the Board of Directors of the Company.
2.3. ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Company and each constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except as the
same may be limited by the terms of this Agreement or by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity.
2.4. VALID ISSUANCE. Upon consummation of the transactions
contemplated hereby and the issuance and delivery of certificates
representing the Shares to the Purchaser, the Shares will be validly issued,
fully paid, non-assessable and, except as created by Purchaser, free of
preemptive rights or similar rights of stockholders of the Company and free
and clear of any liens or other encumbrance.
2.5. CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company consists of 50,000,000 shares of Common Stock, 4,000,000
shares of Restricted Common Stock and 1,000,000 shares of preferred stock. As
of October 20, 2000, (i) 19,455,135 shares of Common Stock and 335,700 shares
of Restricted Common Stock were validly issued and outstanding, fully paid
and non-assessable, (ii) no shares of 8.0% Convertible Paid-In-Kind Preferred
Stock were issued and outstanding, and (iii) no shares of Series B 8.0%
Convertible Paid-In-Kind Preferred Stock were issued and outstanding.
2.6. NO VIOLATION. The execution and delivery of this Agreement by
the Company, the performance by the Company of its obligations hereunder and
the consummation by the Company of the transactions contemplated by this
Agreement will not (a) contravene any provision of the Certificate of
Incorporation or Bylaws of the Company, (b) violate or conflict with any
material law, statute, ordinance, rule, regulation, decree, writ, injunction,
judgment, ruling or order of any governmental authority or of any arbitration
award which is either applicable to, binding upon, or enforceable against the
Company, (c) conflict with, result in any breach of, or constitute a default
under, or give rise to a right to terminate, amend, modify, abandon or
accelerate, any material agreement which is applicable to, binding upon or
enforceable against the Company, (d) result in or require the creation or
imposition of any lien or other encumbrance upon or with respect to any of
the material property or assets of the Company, (e) give to any individual or
entity a right or claim against the Company, which would have a Material
Adverse Effect on the Company; or (f) require the consent, approval,
authorization or permit of, or filing with or notification to, any
governmental authority, any court or tribunal or any other person, except (i)
to the extent necessary, consents under (A) the Second Amended and Restated
Credit Agreement dated March 30, 2000, among the Company, the lenders set
forth on Schedule 1 thereto and First Union National Bank as agent for the
lenders, and (B) the Credit
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Agreement dated March 30, 2000 among the Company and certain of its
subsidiaries, as borrowers, the lenders named therein and The Chase Manhattan
Bank, as Agent which such consents have been obtained, (ii) pursuant to the
Exchange Act and the Securities Act and applicable inclusion requirements of
any stock exchange on which the Common Stock is listed, (iii) filings
required under the securities or blue sky laws of the various states or (iv)
filings required under the HSR Act, if any (collectively, "Required
Consents").
2.7. REPORTS AND FINANCIAL STATEMENTS. From January 1, 1997 to the
date hereof, except where failure to have done so did not and would not have
a Material Adverse Effect on the Company, the Company (including any
predecessor entities) has filed all reports, registrations and statements,
together with any required amendments thereto, that it was required to file
with the Commission, including, but not limited to, Forms 10-K, Forms 10-Q,
Forms 8-K and proxy statements (collectively, the "Company Reports"), copies
of all of which have been delivered to the Purchaser. As of their respective
dates (but taking into account any amendments filed prior to the date of this
Agreement), the Company Reports complied in all material respects with all
the rules and regulations promulgated by the Commission and did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
2.8. LITIGATION. With the exception of XXXXX X. XXXXXXXX, C.A. No.
18099-NC and XXXXXX X. XXXX, C.A. No. 1810-NC, there is no action, suit or
other legal or administrative proceeding or governmental investigation
pending, or, to the knowledge of the Company, threatened, anticipated or
contemplated against, by or affecting the Company which questions the
validity or enforceability of this Agreement or the Registration Rights
Agreement or the transactions contemplated hereby or thereby.
2.9. REGISTRATION RIGHTS AGREEMENT. The Company acknowledges and
agrees that the Common Stock issuable upon conversion of the Shares will be
eligible for registration pursuant to the terms of the Registration Rights
Agreement by and among the Purchaser, the Company and certain other parties
thereto.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as
follows:
3.1. AUTHORIZATION. This Agreement constitutes the Purchaser's valid
and legally binding obligation, enforceable in accordance with its terms
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting
the enforcement of creditors' rights generally, and (b) the effect of rules
of law governing the availability of equitable remedies. The Purchaser
represents that the Purchaser has full power and authority to enter into this
Agreement.
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3.2. PURCHASE FOR OWN ACCOUNT. The Shares to be purchased by the
Purchaser hereunder shall be acquired for investment for the Purchaser's own
account, not as a nominee or agent, and not with a view to the public resale
or distribution thereof, and the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the same.
The Purchaser represents that the Purchaser has not been formed for the
specific purpose of acquiring the Shares.
3.3. DISCLOSURE OF INFORMATION. The Purchaser has received or has
had full access to all the information it considers necessary or appropriate
to make an informed investment decision with respect to the Shares to be
purchased under this Agreement. The Purchaser further has had an opportunity
to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Shares and to obtain additional information
(to the extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify any information
furnished to the Purchaser or to which the Purchaser had access.
3.4. INVESTMENT EXPERIENCE. The Purchaser understands that the
purchase of the Shares involves substantial risk. The Purchaser acknowledges
that the Purchaser is able to fend for itself, can bear the economic risk of
the Purchaser's investment in the Shares and has such knowledge and
experience in financial or business matters that the Purchaser is capable of
evaluating the merits and risks of this investment in the Shares and
protecting its own interests in connection with this investment.
3.5. ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
3.6. RESTRICTED SECURITIES. The Purchaser understands that the
Shares are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the Securities Act and applicable
regulations thereunder such securities may be resold without registration
under the Securities Act only in certain limited circumstances. Further, the
Purchaser represents that the Purchaser is familiar with Rule 144 of the
Commission, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act. The Purchaser understands that the
Company is under no obligation to register any of the securities sold
hereunder except as provided in the Registration Rights Agreement.
3.7. GOVERNMENTAL CONSENTS. No filings are required to be made, or
consents to be obtained, from any governmental authority to consummate the
transactions contemplated hereby, including the filing of any notification
required under the HSR Act.
3.8. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, the Purchaser further agrees not to make
any disposition of all or any portion of the Shares unless and until:
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(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) the Purchaser shall have furnished the Company at the
expense of the Purchaser or its transferee, with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not
require registration of such securities under the Securities Act or is
in compliance with Rule 144 of the Securities Act.
Notwithstanding the provisions of subparagraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required for any
transfer of Shares to (A) a partner of the Purchaser, (B) a retired partner
of the Purchaser who retires after the date hereof, or (C) the estate of any
such partner; provided that in each of the foregoing cases the transferee
agrees in writing to be subject to the terms of this Section 3 to the same
extent as if the transferee were an original purchaser hereunder.
3.9. LEGENDS. It is understood that the certificates evidencing the
Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED, OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
THE SECURITIES ACT, OR THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO IT AND ITS COUNSEL,
THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
(b) Any legend imposed or required by the applicable state
securities laws, the Registration Rights Agreement or any other ancillary
agreement.
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to purchase the Shares is subject to
the satisfaction by the Company, or waiver by the Purchaser, on or prior to
the Closing Date, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Company set forth in this Agreement that is qualified as to
Material Adverse Effect or materiality shall be true and correct, and each of
the representations and warranties of the Company set forth in this Agreement
not so qualified shall be true and correct in all material respects, in each
case as of the date of this Agreement and as of the Closing Date as though
made on and as of the
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Closing Date (except to the extent in either case that such representations
and warranties speak as of another date).
4.2. CONSENTS. The Company shall have obtained all necessary
consents to the transactions contemplated by this Agreement under each of (a)
the Second Amended and Restated Credit Agreement dated March 30, 2000, among
the Company, the lenders set forth on Schedule 1 thereto and First Union
National Bank as agent for the lenders, and (b) the Credit Agreement dated
March 30, 2000 among the Company and certain of its subsidiaries, as
borrowers, the lenders named therein and The Chase Manhattan Bank, as Agent.
5. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" means this Preferred Stock Purchase Agreement, including
all amendments, modifications and supplements thereto.
"Closing" shall have the meaning assigned to such term in Section 1.2.
"Closing Date" shall have the meaning assigned to such term in
Section 1.2.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the common stock of the Company, par value
$.01 per share.
"Company" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Indemnified Party" shall have the meaning assigned to such term in
Section 6.2.
"Material Adverse Effect" means any material adverse effect on (a)
the business, assets, operations or financial condition of the Company and
its subsidiaries, taken as a whole, (b) the ability of the Company to perform
its obligations under this Agreement or the Registration Rights Agreement or
(c) the binding nature, validity or enforceability of this Agreement or the
Registration Rights Agreement.
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"Purchaser" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Registration Rights Agreement" means the Registration Rights
Agreement for the RMSI Stockholders, dated as of August 18, 1999, by and
among the Company, the Purchaser and the other parties thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" shall have the meaning assigned to such term in Section 1.1.
6. INDEMNIFICATION
6.1. GENERAL INDEMNITY. The Company agrees to indemnify and save
harmless the Purchaser and its directors, officers, affiliates, successors
and assigns from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by the Purchaser as a
result of any inaccuracy in or breach of the representations, warranties or
covenants made by the Company in this Agreement. The Purchaser agrees to
indemnify and save harmless the Company and its directors, officers,
affiliates, successors and assigns from and against any and all losses,
liabilities, deficiencies, costs, damages and expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) incurred
by the Company as a result of any inaccuracy in or breach of the
representations, warranties or covenants made by the Purchaser herein.
6.2. INDEMNIFICATION PROCEDURE. Any party entitled to
indemnification under this Section 6 (an "Indemnified Party") will give
written notice to the indemnifying party of any claim with respect to which
it seeks indemnification promptly after the discovery by such party of any
matters giving rise to a claim for indemnification; provided that the failure
of any party entitled to indemnification hereunder to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 6 except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any action, proceeding or
claim is brought against an Indemnified Party in respect of which
indemnification is sought hereunder, the indemnifying party shall be entitled
to participate in and, unless in the reasonable judgment of the Indemnified
Party a conflict of interest between it and the indemnifying party may exist
in respect of such action, proceeding or claim, to assume the defense
thereof, with counsel reasonably satisfactory to the Indemnified Party. In
the event that the indemnifying party advises an Indemnified Party that it
will contest such a claim for indemnification hereunder, or fails, within
thirty (30) days of receipt of any indemnification notice to notify, in
writing, such person of its election to defend, settle or compromise, at its
sole cost and expense, any action, proceeding or claim (or discontinues its
defense at any time after it commences such defense), then the Indemnified
Party may, at its option, defend, settle or otherwise compromise
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or pay such action, proceeding or claim. In any event, unless and until the
indemnifying party elects in writing to assume and does so assume the defense
of any such claim, proceeding or action, the Indemnified Party's costs and
expenses arising out of the defense, settlement or compromise of any such
action, proceeding, claim or proceeding shall be losses subject to
indemnification hereunder. The Indemnified Party shall cooperate fully with
the indemnifying party in connection with any negotiation or defense of any
such action, proceeding or claim by the indemnifying party and shall furnish
to the indemnifying party all information reasonably available to the
Indemnified Party which relates to such action, proceeding or claim. The
indemnifying party shall keep the Indemnified Party fully informed at all
times as to the status of the defense or any settlement negotiations with
respect thereto. If the indemnifying party elects to defend any such action,
proceeding or claim, then the Indemnified Party shall be entitled to
participate in such defense with counsel of its choice at its sole cost and
expense. The indemnifying party shall not be liable for any settlement of any
action, claim or proceeding effected without its written consent, provided,
however, that the indemnifying party shall not unreasonably withhold, delay
or condition its consent. Anything in this Section 6 to the contrary
notwithstanding, the indemnifying party shall not, without the Indemnified
Party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof which imposes any future obligation
on the Indemnified Party or which does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the Indemnified
Party, a release from all liability in respect of such claim, proceeding or
action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred. The indemnity agreements contained herein
shall be in addition to (a) any cause of action or similar right of the
Indemnified Party against the indemnifying party or others, and (b) any
liabilities the indemnifying party may be subject to pursuant to the law.
6.3. INDEMNIFICATION LIMITATIONS. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to make claims under Section 6.1 hereof
only to the extent that the aggregate amount of losses arising from such
claims does not exceed $12,397,000. Nothing contained in this Section 6.3
shall be construed to limit the indemnification obligations of the Company
afforded to any holder of Shares under the Registration Rights Agreement
afforded to any director or officer of the Company under its organizational
documents, state law or otherwise.
7. MISCELLANEOUS
7.1. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part
of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy
thereunder. The remedies therein provided are cumulative and not exclusive of
any remedies provided by law.
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7.2. HSR. If required by applicable law, each of the Purchaser and
the Company agree to cooperate in the preparation of, and file, any required
notification form pursuant to the HSR Act with respect to the acquisition by
the Purchaser of shares of the Company's Common Stock issuable to the
Purchaser upon conversion of the Preferred Stock.
7.3. AMENDMENTS, WAIVERS AND CONSENTS. Any provisions in this
Agreement to the contrary notwithstanding, and except as hereinafter
provided, changes in, termination or amendments of or additions to this
Agreement may be made, and compliance with any provision set forth herein may
be omitted or waived, if the Company shall obtain consent thereto in writing
from the Purchaser. Any waiver or consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
7.4. NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only
if delivered personally against written receipt or by facsimile transmission
or mailed by prepaid first class mail, return receipt requested, or mailed by
overnight courier prepaid to the parties at the following addresses or
facsimile numbers.
To the Company: Marketing Specialists Corporation
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile Number: 000-000-0000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile Number: 214-969-4343
To the Purchaser: MS Acquisition Limited
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
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With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.4 be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 7.4 be deemed given upon successful
transmission, (iii) if delivered by mail in the manner described above to the
address as provided in this Section 7.4 be deemed given upon the earlier of
the third business day following mailing or upon receipt and (iv) if
delivered by overnight courier to the address as provided in this Section 7.4
be deemed given on the earlier of the first business day following the date
sent by such overnight courier or upon receipt. Any party from time to time
may change its address, facsimile number or other information for the purpose
of notices to that party by giving notice specifying such change to the other
parties hereto.
7.5. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of each of the Company and the Purchaser and
their respective heirs, successors and assigns, except that the Company shall
not have the right to delegate its obligations hereunder.
7.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Agreement, or any other instrument or document
delivered in connection herewith, shall survive the execution and delivery
hereof or thereof for a period of 12 months after the date hereof.
7.7. SEVERABILITY. The provisions of this Agreement and the terms of
the Shares are severable and, in the event that any court of competent
jurisdiction shall determine that any one or more of the provisions or part
of a provision contained in this Agreement or the terms of the Shares shall,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement or the terms of the
Shares, but this Agreement and the terms of the Shares shall be reformed and
construed as if such invalid or illegal or unenforceable provision, or part
of a provision, had never been contained herein, and such provisions or part
reformed so that it would be valid, legal and enforceable to the maximum
extent possible.
7.8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF
THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
11
7.9. HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
7.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each or which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.11. CLOSING CONDITION WAIVERS. At any time prior to the Closing
Date, any party hereto may (a) extend the time for the performance of any of
the obligations or other acts of any other party hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions 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 by the party granting such waiver but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or future failure.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date and year first above written.
MARKETING SPECIALISTS CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
MS ACQUISITION LIMITED
By: MSSC Acquisition Corp., its General Partner
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO PREFERRED STOCK PURCHASE AGREEMENT]
