Exhibit 10.36
EXCHANGE AGREEMENT
AGREEMENT, dated as of November16, 1998, among PolyVision Corporation, a
New York corporation ("POLYVISION"), The Alpine Group, Inc., a Delaware
corporation ("ALPINE"), and, if executed by such party in accordance with
Section 5.02, Kirkbi Projekt A/S ("KIRKBI," and each of Alpine and Kirkbi are
sometimes referred to herein as a "TRANSFEROR" and together as the
"TRANSFERORS").
R E C I T A L S
The Boards of Directors of each of the parties hereto, deeming it advisable
for the benefit of each of the parties hereto and their respective stockholders
that the Transferors exchange certain shares of preferred stock and certain
indebtedness of PolyVision for shares of common stock of PolyVision and other
preferred stock of PolyVision.
THEREFORE, for and in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
THE EXCHANGE
1.01 TRANSFER AND EXCHANGE. Subject to and in accordance with the terms
and conditions of this Agreement, on the date hereof
(a) each of the Transferors shall transfer and deliver to PolyVision
the number shares of the Series A Preferred Stock, par value $.01 per
share, of PolyVision, together with accrued and unpaid dividends (the
"SERIES A PREFERRED STOCK") as set forth on Exhibit A hereto, and
PolyVision shall issue, transfer and deliver to the Transferors the number
of duly authorized, validly issued, fully paid and nonassessable shares of
Series B Convertible Preferred Stock, par value $.01 per share, of
PolyVision, having the terms and conditions set forth on Exhibit B hereto
(the "SERIES B PREFERRED STOCK"), and common stock, par value $.001 per
share, of PolyVision ("POLYVISION COMMON STOCK"), each as set forth on
Exhibit A hereto, and
(b) Alpine shall transfer and deliver to PolyVision the principal
amount of indebtedness of PolyVision as set forth on Exhibit A hereto (the
"POLYVISION DEBT"), and PolyVision shall issue, transfer and deliver to
Alpine the number of duly authorized, validly issued, fully paid and
nonassessable shares of PolyVision Common Stock as set forth on Exhibit A
hereto.
1.02 THE CLOSING. The closing of the transfer and exchange described in
Section 1.01 (the "CLOSING") shall take place at the offices of Alpine on the
date hereof and, if
executed after such date by Kirkbi in accordance with Section 5.02, then as to
Kirkbi on the date of execution by Kirkbi.
1.03 DELIVERIES BY TRANSFERORS
At the Closing, the Transferors, as applicable, shall deliver to
PolyVision:
(a) certificates representing the Series A Preferred Stock to be
exchanged, duly endorsed in blank, in proper form for transfer; and
(b) evidence of the surrender and cancellation of the PolyVision Debt in
form and substance reasonably satisfactory to counsel to each of the parties.
1.04 DELIVERIES BY POLYVISION. PolyVision shall deliver to the
Transferors, as applicable, against delivery of the Series A Preferred Stock and
PolyVision Debt to be exchanged hereunder, and in payment of all accrued and
unpaid dividends on such Series A Preferred Stock,
(a) certificates registered in the name of each Transferors representing
the appropriate number of shares PolyVision Common Stock as set forth on Exhibit
A, and
(b) certificates registered in the name of each Transferors representing
the appropriate number of shares Series B Preferred Stock as set forth on
Exhibit A.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE TRANSFERORS
Each Transferor represents and warrants to, and agrees with, PolyVision as
follows:
2.01 VALIDITY OF TRANSACTION. Such Transferor has all requisite power and
authority to execute, deliver, and perform this Agreement and to transfer and
deliver to PolyVision the shares of Series A Preferred Stock and the PolyVision
Debt, as applicable. All necessary corporate proceedings of such Transferor
have been duly taken to authorize the execution, delivery, and performance of
this Agreement. This Agreement has been duly authorized, executed, and
delivered by such Transferor, is the legal, valid, and binding obligation of
such Transferor, and is enforceable as to such Transferor in accordance with
its terms. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any Federal, state, local, or
other governmental authority or of any court or other tribunal is required by
such Transferor for the execution, delivery, or performance of this Agreement by
such Transferor. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which such
Transferor is a party, or by which any of its
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properties or assets is bound, is required for the execution, delivery, or
performance by such Transferor of this Agreement, except for such consents as
have been obtained at or prior to the date of this Agreement; and the execution,
delivery, and performance of this Agreement by such Transferor will not violate,
result in a breach of, conflict with, or (with or without the giving of notice
or the passage of time or both) entitle any party to terminate or call a default
under any such contract, agreement, instrument, lease, license, arrangement, or
understanding, or violate or result in a breach of any term of the Certificate
of Incorporation or by-laws of such Transferor, or violate, result in a breach
of, or conflict with any law, rule, regulation, order, judgment, or decree
binding on such Transferor or to which any of its operations, business,
properties, or assets is subject. Such Transferor has good and marketable title
to the shares of Series A Preferred Stock and the PolyVision Debt being
transferred by it hereunder, as applicable.
2.02 FINDER OR BROKER. Neither such Transferor nor any person acting on
behalf of such Transferor has negotiated with any finder, broker, intermediary,
or similar person in connection with the transactions contemplated hereby.
2.03 ACCREDITED INVESTOR. Such Transferor is an "accredited investor," as
that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933 (the "SECURITIES ACT").
2.04 INVESTMENT INTENT. Such Transferor is acquiring the shares of
PolyVision Common Stock and Series B Preferred Stock pursuant hereto for its own
account for investment and not with a view to, or for sale in connection with,
any public distribution thereof in violation of the Securities Act. Such
Transferor understands that such shares of PolyVision Common Stock and Series B
Preferred Stock are "restricted securities" and have not been registered for
sale under the Securities Act or qualified under applicable state securities
laws and that the PolyVision Common Stock and Series B Preferred Stock will be
delivered to such Transferor pursuant to one or more exemptions from the
registration or qualification requirements of such securities laws and that the
representations and warranties contained in this Article II are given with the
intention that PolyVision may rely thereon for purposes of claiming such
exemptions. Such Transferor understands that it must bear the economic risk of
its investment in PolyVision for an indefinite period of time, as the PolyVision
Common Stock and Series B Preferred Stock cannot be sold unless registered under
the Securities Act and qualified under state securities laws, unless an
exemption from such registration and qualification is available.
2.05 TRANSFER OF SHARES. Such Transferor will not sell or otherwise
dispose of any PolyVision Common Stock or Series B Preferred Stock unless (a) a
registration statement with respect thereto has become effective under the
Securities Act and such shares have been qualified under applicable state
securities laws or (b) there is presented to PolyVision notice of the proposed
transfer and, if PolyVision so requests, there is also presented to PolyVision a
legal opinion reasonably satisfactory to PolyVision that such registration and
qualification are not required. Such Transferor consents that the transfer
agent for the PolyVision Common Stock and Series B Preferred Stock may be
instructed not to transfer the PolyVision Common Stock or Series B Preferred
Stock acquired pursuant hereto unless it receives satisfactory evidence of
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compliance with the foregoing provisions, and that there may be endorsed upon
any certificate representing the PolyVision Common Stock or Series B Preferred
Stock acquired pursuant hereto (and any certificates issued in substitution
therefor) the following legend calling attention to the foregoing restrictions
on transferability and stating in substance:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR QUALIFIED UNDER ANY STATE SECURITIES LAW. THESE SECURITIES
MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS OR AN EXEMPTION IS AVAILABLE."
PolyVision shall, upon the request of any holder of a certificate bearing the
foregoing legend and the surrender of such certificate, issue a new certificate
without such legend if (i) the security evidenced by such certificate has been
effectively registered under the Securities Act and qualified under any
applicable state securities law and sold by the holder thereof in accordance
with such registration and qualification or (ii) such holder shall have
delivered to such Transferor a legal opinion reasonably satisfactory to such
Transferor to the effect that the restrictions set forth herein are no longer
required or necessary under the Securities Act or any applicable state law.
ARTICLE III
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS OF POLYVISION
PolyVision represents and warrants to, and agrees with, the Transferors as
follows:
3.01 VALIDITY OF TRANSACTION. PolyVision has all requisite power and
authority to execute, deliver, and perform this Agreement and to issue and sell
to the Transferors the shares of PolyVision Common Stock and Series B Preferred
Stock. All necessary corporate proceedings of PolyVision have been duly taken
to authorize the execution, delivery, and performance of this Agreement, and the
issuance and sale to the Transferors of the shares of PolyVision Common Stock
and Series B Preferred Stock. This Agreement has been duly authorized,
executed, and delivered by PolyVision, is the legal, valid, and binding
obligation of PolyVision, and is enforceable as to PolyVision in accordance with
its terms. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any Federal, state, local, or
other governmental authority or of any court or other tribunal or stock exchange
is required by PolyVision for the execution, delivery, or performance of this
Agreement by PolyVision. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which PolyVision is
a party, or by which any of
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its properties or assets is bound, is required for the execution, delivery, or
performance by PolyVision of this Agreement, except for such consents as have
been obtained at or prior to the date of this Agreement; and the execution,
delivery, and performance of this Agreement by PolyVision will not violate,
result in a breach of, conflict with, or (with or without the giving of notice
or the passage of time or both) entitle any party to terminate or call a default
under any such contract, agreement, instrument, lease, license, arrangement, or
understanding, or violate or result in a breach of any term of the Certificate
of Incorporation or by-laws of PolyVision, or violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or decree binding on
PolyVision or to which any of its operations, business, properties, or assets is
subject. The shares of PolyVision Common Stock and Series B Preferred Stock
have been duly authorized and, upon receipt by PolyVision from the Transferors
of the Series A Preferred Stock and the PolyVision Debt being transferred
pursuant to this Agreement, will be validly issued, fully paid, and
nonassessable, will not have been issued in violation of any preemptive right of
stockholders or rights of first refusal, and the Transferors will receive good
title to the shares of PolyVision Common Stock and Series B Preferred Stock,
free and clear of all liens, security interests, pledges, charges, encumbrances,
stockholders agreements, and voting trusts (other than any created by such
Transferor).
3.02 FINDER OR BROKER. Neither PolyVision nor any person acting on behalf
of PolyVision has negotiated with any finder, broker, intermediary, or similar
person in connection with the transactions contemplated herein.
3.03 ACCREDITED INVESTOR. PolyVision is an "accredited investor," as that
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act.
3.04 FULL DISCLOSURE. All documents filed by PolyVision pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") since December
31, 1993 (i) were prepared in accordance with the requirements of the Exchange
Act and the rules and regulations thereunder, (ii) did not at the time they were
filed contain any untrue statement of a material fact, and (iii) did not at the
time they were filed omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. From the date as of which information is given in the most
recent report filed by PolyVision under the Exchange Act to the date of this
Agreement, there has not been any material adverse change in, or any adverse
development which materially affects, the business, results of operations, or
financial condition of PolyVision and its subsidiaries taken as a whole.
ARTICLE IV
COVENANTS OF POLYVISION
4.01 REGISTRATION OF THE POLYVISION COMMON STOCK. PolyVision will use its
best efforts to effect the registration under the Securities Act of the
PolyVision Common Stock issued hereunder and issuable upon conversion of the
Series B Preferred Stock as requested by Alpine from time to time, but not
sooner than 180 days after the Closing Date. In addition,
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PolyVision shall advise the Transferors by written notice at least thirty days
prior to the filing of any registration statement under the Securities Act
covering securities of PolyVision (except with respect to registration
statements on Form X-0, Xxxx X-0 or similar forms) and will, upon the request of
any Transferor, include in any such registration statement such information as
may be required to permit a public offering of the PolyVision Common Stock,
subject to any restrictions imposed by any managing underwriter in connection
with an underwritten public offering on behalf of PolyVision. In connection
therewith, PolyVision will:
(a) promptly prepare and file with the Securities and Exchange Commission
(the "SEC") a registration statement with respect to the PolyVision Common Stock
and use its best efforts to cause such registration statement to become
effective;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and current for a period
sufficient to enable the Transferors to complete the distribution of the
PolyVision Common Stock covered by such registration statement, and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Transferors thereof
as set forth in such registration statement;
(c) furnish to the Transferors such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus), and such
other documents as the Transferors may reasonably request in order to facilitate
the disposition of the PolyVision Common Stock owned by the Transferors;
(d) use its best efforts to register or qualify the PolyVision Common
Stock under the securities or blue sky laws of such jurisdictions of the United
States as the Transferors may reasonably request and do any other related acts
which may be reasonably necessary to enable the Transferors to consummate the
disposition in such jurisdictions of the PolyVision Common Stock owned by the
Transferors; PROVIDED, HOWEVER, that PolyVision will not be required to (i)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4.02(d); (ii) subject itself to
taxation in any jurisdiction; or (iii) consent to general service of process in
any such jurisdiction;
(e) notify the Transferors at any time when a prospectus relating to the
PolyVision Common Stock is required to be delivered under the Securities Act, of
the happening of any event as a result of which, or the fact that, the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of a Transferor, PolyVision will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of PolyVision Common Stock, such prospectus will not contain any
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
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(f) use its best efforts to cause the PolyVision Common Stock to be listed
or quoted on each securities exchange or interdealer quotation system on which
similar securities issued by PolyVision are then listed or quoted;
(g) provide a transfer agent for all such PolyVision Common Stock not
later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements on customary terms) and take all such other actions as the
Transferors may reasonably request in order to expedite or facilitate the
disposition of the PolyVision Common Stock; and
(i) make available for inspection by the Transferors or any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant, or any other agent retained by the Transferors or any
such underwriter, all financial and other records, pertinent corporate documents
and properties of PolyVision, and cause PolyVision's officers, directors, and
employees to supply all information reasonably requested by the Transferors, any
such underwriter, attorney, accountant, or agent in connection with such
registration statement.
4.02 REGISTRATION EXPENSES. All expenses ("REGISTRATION EXPENSES")
incident to PolyVision's performance of or compliance with this Article IV with
respect to any registration of the PolyVision Common Stock will be borne by
PolyVision, including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, the expense of any audit, and the
expenses and fees for listing or quoting the securities to be registered on each
securities exchange or interdealer quotation system on which similar securities
issued by PolyVision are then listed or quoted. Notwithstanding the foregoing,
however, all underwriters' discounts and commissions in respect of the sale of
PolyVision Common Stock and the fees and disbursements of counsel for the
Transferors, shall be paid by the Transferors.
4.03 PRECONDITIONS TO PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Neither
of the Transferors may participate in any underwritten registration hereunder
unless it (i) agrees to its securities on the basis provided in any customary
underwriting arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents
required under the terms of such underwriting arrangements.
4.04 INDEMNIFICATION AND CONTRIBUTION.
(a) PolyVision shall indemnify and hold harmless the Transferors and each
of their officers, directors, employees, agents, partners, legal counsel, and
accountants, and each controlling person of each of the foregoing (within the
meaning of the Securities Act) against any losses, claims, damages, or
liabilities, joint or several (or actions in respect thereof),
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including any of the foregoing incurred in the settlement of any litigation,
commenced or threatened, to which any of them may be subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement (or alleged untrue statement) of any
material fact contained in any registration statement under which the PolyVision
Common Stock was registered under the Securities Act or in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, (ii) any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any other violation by PolyVision of the
Securities Act or any state securities law in connection with any such
registration, and shall reimburse each such person entitled to indemnification
under this Section 4.04(a) for any legal or other expenses reasonably incurred
by such person in connection with investigating or defending any such loss,
claim, damage, liability, or action, as and when such expenses are incurred;
PROVIDED, HOWEVER, that PolyVision shall not be liable to any such person in any
such case to the extent that any such loss, claim, damage, or liability arises
out of or is based upon any untrue statement or omission made in such
registration statement, preliminary prospectus, or amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
PolyVision by such person, specifically for use therein.
(b) Each Transferor shall indemnify PolyVision and each of PolyVision's
officers, employees, agents, directors, legal counsel, and accountants, and each
controlling person of each of the foregoing (within the meaning of the
Securities Act) against any losses, claims, damages, or liabilities (or actions
in respect thereof), including any of the foregoing incurred in the settlement
of any litigation, commenced or threatened, joint or several, to which any of
them may be subject under the Securities Act or any other statute or at common
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement (or alleged
untrue statement) of any material fact contained in any registration statement
under which the PolyVision Common Stock was registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereto or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) was
made in such registration statement, preliminary prospectus, or amendment or
supplement thereto solely in reliance upon and in conformity with written
information furnished to PolyVision by such Transferor specifically for use
therein, and to reimburse such persons for any legal or other expenses
reasonably incurred in connection with investigating or defending any such loss,
claim, damage, liability, or action, as and when such expenses are incurred.
(c) If (i) an indemnified party makes a claim for indemnification pursuant
to this Section 4.04 (subject to the limitations hereof) but it is found in a
final judicial determination, not subject to further appeal, that such
indemnification may not be enforced in such case or (ii) an indemnified party
seeks contribution under the Securities Act, the Exchange Act, or otherwise,
then PolyVision (including for this purpose any contribution made by or on
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behalf of any director of PolyVision, any officer of PolyVision who signed the
registration statement, and any controlling person of PolyVision) as one entity
and the Transferors (including for this purpose any contribution by or on behalf
of a person who would be indemnified by PolyVision) as a second entity, shall
contribute to the losses, liabilities, claims, damages, and expenses whatsoever
to which any of them may be subject, so that PolyVision and the Transferors are
each responsible for the proportion thereof which reflects as nearly as possible
the relative fault of the Transferors and PolyVision in connection with the
facts which resulted in such losses, liabilities, claims, damages, or expenses.
The relative fault, in the case of an untrue statement, alleged untrue
statement, omission, or alleged omission, shall be determined by, among other
things, whether such statement, alleged statement, omission, or alleged omission
relates to information supplied by the Transferors or by PolyVision, and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement, alleged statement, omission, or alleged
omission. No person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. Anything in this Section 4.04 to the contrary
notwithstanding, no party shall be liable for contribution with respect to the
settlement of any claim or action effected without its written consent. This
Section 4.04 is intended to supersede any right to contribution under the
Securities Act, the Exchange Act or otherwise.
(d) Each party entitled to indemnification under this Section 4.04 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has knowledge of the commencement of any action, proceeding, or investigation in
respect of which indemnity or reimbursement may be sought as provided above;
PROVIDED, HOWEVER, that the failure of such Indemnified Party to notify the
Indemnifying Party with respect to a particular action, proceeding, or
investigation shall not relieve the Indemnifying Party from any obligation or
liability (i) which it may have pursuant to this Agreement to the extent that
the Indemnifying Party is not prejudiced by the failure to notify or (ii) which
it may have otherwise than pursuant to this Agreement. The Indemnifying Party
shall promptly assume the defense of any Indemnified Party with counsel
reasonably satisfactory to such Indemnified Party, and the fees and expenses of
such counsel shall be at the sole cost and expense of the Indemnifying Party.
The Indemnified Party will cooperate with the Indemnifying Party in the defense
of any action, proceeding, or investigation for which the Indemnifying Party
assumes the defense. Notwithstanding the foregoing, any such Indemnified Party
shall have the right to employ separate counsel of its own selection in any such
action, proceeding, or investigation and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (x) the Indemnifying Party has agreed to pay such fees
and expenses, (y) the Indemnifying Party shall have failed promptly to assume
the defense of such action, proceeding, or investigation and employ counsel
reasonably satisfactory to such Indemnified Party, or (z) in the reasonable
judgment of such Indemnified Party there may be one or more defenses available
to such Indemnified Party which are not available to the Indemnifying Party in
respect of such action, proceeding, or investigation, in which case the
Indemnifying Party shall not have the right to assume the defense of such
action, proceeding, or investigation
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on behalf of such Indemnified Party. An Indemnifying Party who is not entitled
to, or elects not to, assume the defense of an action, proceeding, or
investigation shall not be obligated to pay the fees and expenses of more than
one counsel and appropriate local counsel for all parties indemnified by such
Indemnifying Party pursuant to this Section 4.04 with respect to the same
action, proceeding, or investigation, unless in the reasonable judgment of any
such Indemnified Party a conflict of interest may exist between such Indemnified
Party and any other such Indemnified Party with respect to such action, claim,
or proceeding. The Indemnifying Party shall not be liable for the settlement by
any Indemnified Party of any action, proceeding, or investigation effected
without its consent, which consent shall not be unreasonably withheld. The
Indemnifying Party shall not enter into any settlement in any action, suit, or
proceeding to which an Indemnified Party is party unless such settlement
includes a general release of the Indemnified Party, with no payment by the
Indemnified Party of consideration.
ARTICLE V
MISCELLANEOUS
5.01 NOTICES. All notices or other communications hereunder shall be in
writing and shall be given by registered or certified mail (postage prepaid and
return receipt requested), by an overnight courier service which obtains a
receipt to evidence delivery, or by facsimile transmission (provided that
written confirmation of receipt is provided), addressed to the appropriate party
at the following addresses (or such other address as any party may designate to
the other in accordance with the aforesaid procedure):
(a) if to Alpine:
The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to Kirkbi, at the address set forth on the signature page hereof.
(c) if to PolyVision:
PolyVision Corporation
00-00 00xx Xxxxxx
Xxxx xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President and CEO
Fax: (000) 000-0000
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All notices and other communications sent by overnight courier service shall be
deemed to have been given as of the second Business Day after delivery thereof
to such courier service, those given by facsimile transmission shall be deemed
given when sent, and all notices and other communications sent by mail shall be
deemed given as of the fifth Business Day after the date of deposit with the
United States Postal Service. As used herein, "BUSINESS DAY" shall mean any day
other than Saturday, Sunday, or any other day when banks in New York City are
required or permitted by law or other governmental actions to be closed.
5.02 BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall become
binding on and inure to the benefit of Alpine and PolyVision upon execution by
such parties. This Agreement shall become binding on Kirkbi and inure to its
benefit, and Kirkbi shall become a party hereto, only if and when it executes
this Agreement, provided that Kirkbi executes this Agreement within 30 days
after the date hereof. This Agreement shall be binding on each party hereto and
any successor of a party in accordance with the following sentence. Neither the
Transferors nor PolyVision may sell, assign, transfer, or otherwise convey any
of its rights or delegate any of its duties under this Agreement, except to a
corporation which has succeeded to substantially all of the business and assets
of such party and has assumed in writing its obligations under this Agreement.
Without limiting the generality of the foregoing, any transferee of PolyVision
Common Stock shall have the rights set forth in Article IV, and such rights
shall be enforceable against PolyVision by such transferees as third party
beneficiaries.
5.03 AMENDMENTS AND WAIVERS. Neither this Agreement nor any term hereof
may be changed or waived (either generally or in a particular instance and
either retroactively or prospectively) absent the written consent of the
Transferors and PolyVision.
5.04 EXPENSES. Each of the Transferors and PolyVision will be responsible
for the payment of all expenses incurred by it in connection with the
preparation, execution, and delivery of this Agreement, any other documents
relating to the transactions contemplated by this Agreement, and the
consummation of the transactions herein described, except that PolyVision shall
reimburse Alpine on demand for Alpine's reasonable costs and expenses in
connection with the preparation and negotiation of this Agreement and such other
documents, including legal fees and expenses and the cost of any fairness
opinion obtained by Alpine in connection with the transactions contemplated
hereby.
5.05 SURVIVAL OF REPRESENTATIONS, ETC. The representations, warranties,
covenants, and agreements made herein or in any certificate or document executed
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions herein described, regardless
of any investigation made at any time by or on behalf of any of the parties
hereto.
5.06 DELAYS OR OMISSIONS; WAIVER. No delay or omission to exercise any
right, power, or remedy accruing to either of the Transferors or PolyVision upon
any breach or default by the other under this Agreement shall impair any such
right, power, or remedy nor shall it be construed to be a waiver of any such
breach or default, or any acquiescence therein or in any
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similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
5.07 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and all prior
negotiations, discussions, commitments, and understandings heretofore had
between them with respect thereto are merged herein.
5.08 COUNTERPARTS; GOVERNING LAW. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to conflicts of laws rules or principles.
5.09 FURTHER ACTIONS. At any time and from time to time, each party
agrees, without further consideration, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the purposes
of this Agreement.This Agreement has been duly executed on the date hereinabove
set forth.
12
THE ALPINE GROUP, INC.
By /s/ Bragi X. Xxxxx
------------------------------
Name: Bragi X. Xxxxx
Title: Executive Vice President
POLYVISION CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
KIRKBI PROJEKT A/S
/s/ Xxxxxx Xxxxxxxxxx Xxxxxxx
By /s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxxxx Xxxxxxx/Xxxxx Xxxxxx
Address: Aastvej I
------------------------
DK-7190 Billund
------------------------
Denmark
------------------------
13
EXHIBIT A
POLYVISION PREFERRED STOCK (SERIES B LIQUIDATION PREFERENCE $50 PER SHARE)
--------------------------------------------------------------------------------------------------------------------------
EXISTING: EXCHANGED FOR:
------------------ --------------- ----------- ----------- --------------- ------------------- ------------
SERIES A SERIES B SERIES B
PREFERRED STOCK LIQUIDATION ACCRUED PREFERRED STOCK PREFERRED STOCK COMMON STOCK
(SHARES) VALUE DIVIDENDS (SHARES) (LIQUIDATION VALUE) (SHARES)
------------------ --------------- ----------- ----------- --------------- ------------------- ------------
ALPINE 1,009,177 $25,229,425 $5,532,931 246,000 $12,300,000 -0-
------------------ --------------- ----------- ----------- --------------- ------------------- ------------
KIRKBI 20,076 501,900 110,069 1,951 97,550 102,888
------------------ --------------- ----------- ----------- --------------- ------------------- ------------
TOTAL 1,029,253 $25,731,325 $5,643,000 247,951 $12,397,550 102,888
------------------ --------------- ----------- ----------- --------------- ------------------- ------------
POLYVISION DEBT EFFECTIVE EXCHANGE PRICE
------------------- ------------------- -------------- ------------------------ ------------
EXISTING: EXCHANGED FOR: LIQUIDATION VALUE $25,731,325
------------------- ------------------- -------------- ------------------------ ------------
POLYVISION DEBT ACCRUED DIVIDENDS 5,643,000
(PRINCIPAL AND COMMON STOCK -------------------------------------
INTEREST) (SHARES) POLYVISION DEBT 7,388,940
------------------- ------------------- -------------- ------------------------ ------------
ALPINE $7,388,940 5,171,977 TOTAL $38,763,265
------------------- ------------------- -------------- ------------------------ ------------
KIRKBI - 0 - - 0 - SHARES ISSUABLE 9,407,382
------------------- ------------------- -------------- ------------------------ ------------
TOTAL $7,388,940 5,171,977 EFFECTIVE EXCHANGE PRICE $4.12
------------------- ------------------- -------------- ------------------------ ------------
