Exhibit 4
STOCK RESALE AGREEMENT
THIS STOCK RESALE AGREEMENT (the "Agreement"), dated as of
_____________, 1997, is by and among International Post Limited,
a Delaware corporation ("IPL"), Xxxxx X. Xxxxxxxxxx
("Xxxxxxxxxx"), Xxxxxx X. Xxxx ("Xxxx") and Xxxxxx X. Xxxxxxxx
("Xxxxxxxx") (each, a "Stockholder" and collectively, the
"Stockholders"). Any reference herein to any Stockholder shall
be deemed to also include a reference to the heirs, estate and
personal representatives of such Stockholder. Unless otherwise
indicated herein: (i) each capitalized term used herein shall
have the meaning attributed to it in the glossary set forth in
Section 23 hereof; and (ii) each capitalized term used herein but
not defined herein shall have the meaning attributed to it in the
Merger Agreement.
W I T N E S S E T H:
WHEREAS IPL, the Stockholders, and Video Services
Corporation, a New Jersey corporation ("Video"), are parties to
an Agreement and Plan of Merger, dated as of __________, 1997
(the "Merger Agreement"), pursuant to which, inter alia, Video
shall be merged (the "Merger") with and into IPL and shares of
Video Common Stock, shall be converted into the right to receive
a number of shares of IPL Common Stock; and
WHEREAS, IPL and each of the Stockholders desire to make
certain representations, covenants and agreements in connection
with the shares of IPL Common Stock to be received by the
Stockholders pursuant to the Merger (the "Shares").
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. General Restriction on Transfers of Common Stock. No
Stockholder shall, prior to the expiration of six (6) months
after the Effective Time, Transfer any Shares except in
accordance with the terms and provisions of this Agreement. The
provisions set forth in Sections 2 through 8 hereof: (i)
represent independent rights of the Stockholders to engage in a
Transfer of Shares and the fact that any such Transfer cannot be
completed pursuant to one such provision shall not be deemed to
limit or restrict any Transfer so long as the same may be
completed in compliance with the terms of another provision of
this Agreement; and (ii) represent exceptions to the general six
(6) month restriction and shall have no further application after
the expiration of such six (6) month period. Any purported
Transfer in violation of this Agreement shall be null and void
and of no force and effect and the purported transferees shall
have no rights or privileges in or with respect to the Shares
purported to have been so transferred. IPL shall refuse to
recognize any such Transfer and shall not reflect on its records
any change in record ownership of such Shares purported to have
been so transferred.
The terms and provisions of this Agreement shall be applicable to
all of the Shares now or hereafter owned by any Stockholder and
by any Permitted Transferee.
2. Losses Escrow Agreement. The Stockholders shall
deposit the Deposited Shares in accordance with the Losses Escrow
Agreement and may, from time to time, engage in substitution of
and for, Shares, in accordance with the terms thereof.
3. Management Options. The Stockholders may grant to any
or all of the employees of or consultants to, Video or IPL or
their respective subsidiaries immediately prior to the Merger,
options (the "Management Options") to purchase up to 721,529
Shares (including the grants contemplated in Section 4 below).
and may sell the Shares underlying the Management Options to the
holders of the Management Options upon the exercise thereof;
provided, however, that any such grant shall be and may be, made
in accordance with Section 7.7 of the Merger Agreement or
pursuant to Section 4 below.
4. New Options. The Stockholders shall grant New Options
to Xx. Xxxxxxxx X. Xxxxx and Xx. Xxxxxxx X. Xxxxxx and may sell
the Shares underlying the New Options to such individuals upon
their exercise of the New Options.
5. Permitted Transfers. Each of the Stockholders may
Transfer any or all of its Shares to any Permitted Transferee,
provided that such Permitted Transferee agrees in writing to be
bound by the provisions set forth in this Agreement.
6. Tax Sales by Siracusano. Siracusano may sell Shares as
required in order to discharge (after taking into account
applicable transaction costs) up to $300,000 of any obligation
for Taxes resulting from the Merger or any transaction
contemplated pursuant to the Merger Agreement including, without
limitation, the Spin-Off Transaction, the Contribution Agreement,
and related transactions (and any additional sales as may be
required to discharge any tax liability arising from such sales
and additional sales) as follows: (A) in a public or private
sale; (B) pursuant to Rule 144 of the Securities Act of 1933, as
amended; (C) pursuant to the Registration Statement; or (D)
pursuant to the Registration Rights Agreement in accordance with
the terms thereof.
7. Permitted Sale. The Stockholders may sell Shares to
the extent that such sale does not reduce the collective
ownership of Shares by the Stockholders and their Permitted
Transferees below 50.1% of the outstanding number of shares of
IPL Common Stock at the time of such sale.
8. Other Sales. Each of the Stockholders may sell any or
all of his Shares in a transaction provided that each such sale
is in compliance with the provisions of the Tag-Along Rights
Agreement.
9. Restrictive Stock Legend. IPL will cause each
certificate of any Stockholder evidencing the Shares outstanding
during the period the restriction set forth in Section 1 is in
effect to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF
AN AGREEMENT DATED _______________, AS IT MAY BE
AMENDED, AMONG INTERNATIONAL POST LIMITED, XXXXX X.
XXXXXXXXXX, XXXXXX X. XXXX AND XXXXXX X. XXXXXXXX, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF _______________________________.
Upon the expiration of the period during which the provisions of
Section 1 are in effect or in the event that the Shares otherwise
cease to be subject to the restrictions on transfer set forth in
this Agreement, IPL shall, upon the written request of the
Stockholder, issue to the Stockholder a new certificate
evidencing such shares without the legend required by this
Section 9. Shares transferred in accordance with Sections 3, 4,
6, 7 and 8 hereof shall be issued without such legend.
10. Arbitration. Disputes that arise under this Agreement
will be resolved as follows:
(i) except as set forth in the penultimate
paragraph of this Section 10, no party shall bring a civil action
arising under or with respect to this Agreement;
(ii) at any time any party may demand arbitration
of any dispute, arising under or with respect to this Agreement
by delivering written notice thereof to: (x) the parties hereto;
and (y) an office of JAMS/Endispute located in New York City (or,
if none, then the office of JAMS/Endispute located closest to New
York City); and
(iii) any such arbitration shall be conducted
in New York City according to JAMS/Endispute's Arbitration Rules
then in effect applicable to disputes of the types submitted to
arbitration and the results of such arbitration shall be final
and binding on the parties.
In the event that JAMS/Endispute is not available to provide such
arbitration services with respect to any such dispute, then that
dispute shall be resolved by final, binding arbitration in New
York City by three arbitrators pursuant to the rules then
prevailing of the American Arbitration Association applicable to
disputes of the type submitted to arbitration. Judgement on the
award rendered by any of the above referenced arbitrators may be
confirmed and entered in and by any court having jurisdiction.
Notwithstanding the foregoing, each party specifically
reserves the right to seek equitable remedies in a court of
competent jurisdiction.
11. Representations and Warranties of the Stockholders.
Each Stockholder represents and warrants to IPL as follows: This
Agreement has been duly executed and delivered by the Stockholder
and constitutes the valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance
with its terms.
12. Notices, etc. All notices, requests, demands, waivers,
consents, approvals or other communications to any party
hereunder shall be in writing and shall be deemed to have been
duly given if: (i) delivered personally to such party; or (ii)
sent to such party by telegram or telecopy, with a copy sent on
the same day via overnight delivery to the following addresses:
If to IPL, to:
International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax#: (000) 000-0000
If to Siracusano, to:
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
If to Buck, to:
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
c/o Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
All notices to IPL shall also be sent to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Fax #: (000) 000-0000
All notices to the Stockholders shall also be sent to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
Fax #: (000) 000-0000
or to such other address as the addressee may have specified in
notice duly given to the sender as provided herein. Such notice,
request, demand, waiver, consent, approval or other
communications shall be deemed to have been given and received as
of the date so delivered, telegraphed or telecopied.
13. Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated except by an instrument in writing signed by each of
the parties hereto.
14. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable
by the parties and their respective successors and assigns,
including without limitation in the case of any corporate party
hereto any corporate successor by merger or otherwise.
15. Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the
subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. There are no
representations, warranties or covenants by the parties hereto
relating to such subject matter other than those expressly set
forth in this Agreement. In the event of any conflict between
the terms and provisions of this Agreement and the terms and
provisions of the Merger Agreement, the terms and provisions of
the Merger Agreement shall prevail.
16. Severability. Each party agrees that, should any court
or other competent authority hold any provision of this Agreement
or part hereof to be null, void or unenforceable, or order any
party to take any action inconsistent herewith or not to take an
action consistent herewith or required hereby, the validity,
legality and enforceability of the remaining provisions and
obligations contained or set forth herein shall not in any way be
affected or impaired thereby.
17. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect
hereof at law or in equity shall be cumulative and not
alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later
exercise of any right, power or remedy by such party.
18. No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to
insist
upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
19. Third Party Beneficiaries. Except as expressly
provided herein, this Agreement is not intended to confer upon
any Person other than the parties hereto any rights or remedies
hereunder.
20. Governing Law. This Agreement shall be governed by,
and interpreted under, the laws of the State of New York
applicable to contracts made and to be performed therein without
regard to conflict of laws principles.
21. Name, Captions, Gender. The name assigned this
Agreement and the section captions used herein are for
convenience of reference only and shall not affect the
interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
22. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all of which together constitute an instrument.
Each counterpart may consist of a number of copies each signed by
less than all, but together signed by all, the parties hereto.
23. Glossary. The following terms as used in this
Agreement shall have the meanings indicated below:
"Deposited Shares" has the meaning set forth in the
Escrow Agreement.
"Permitted Transferee" with respect to a Transfer by
any individual Stockholder, means any immediate family member
(including without limitation, any spouse or former spouse, child
or trust for the benefit of such individuals) or Affiliate or
entity beneficially owned by one or more such Persons.
"Transfer" with respect to a share of IPL Common Stock,
means the sale, assignment, transfer, pledge, hypothecation, gift
or other disposition of such share, or the encumbrance or
granting of any rights, options or interests whatsoever in or in
respect of such share.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date first above written.
INTERNATIONAL POST LIMITED
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Name:
Title:
STOCKHOLDERS:
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Xxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxx
