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EXHIBIT 10.2
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MARKETING SPECIALISTS CORPORATION
COMMON STOCK PURCHASE
AGREEMENT
DATED AS OF MARCH 30, 2000
4,000,000 SHARES OF COMMON STOCK
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TABLE OF CONTENTS
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1. PURCHASE AND SALE OF COMMON STOCK........................................................................1
1.01. Authorization of Common Stock...................................................................1
1.02. Purchase Price and Closing......................................................................1
1.03. Use of Proceeds.................................................................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................2
2.01. Organization, Standing and Power................................................................2
2.02. Authority.......................................................................................2
2.03. Enforceability..................................................................................2
2.04. Valid Issuance..................................................................................2
2.05. Capitalization..................................................................................3
2.06. No Violation....................................................................................3
2.07. Reports and Financial Statements................................................................3
2.08. Litigation......................................................................................3
2.09. Registration Rights Agreement...................................................................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..........................................................4
3.01. Authorization...................................................................................4
3.02. Purchase for Own Account........................................................................4
3.03. Disclosure of Information.......................................................................4
3.04. Investment Experience...........................................................................4
3.05. Accredited Investor Status......................................................................4
3.06. Restricted Securities...........................................................................5
3.07. Governmental Consents...........................................................................5
3.08. Further Limitations on Disposition..............................................................5
3.09. Legends.........................................................................................5
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS......................................................6
4.01. Representations and Warranties..................................................................6
4.02. Refinancing of Senior Credit Facility...........................................................6
4.03. Third Supplemental Indenture....................................................................6
5. DEFINITIONS..............................................................................................6
6. INDEMNIFICATION..........................................................................................8
6.01. General Indemnity...............................................................................8
6.02. Indemnification Procedure.......................................................................8
6.03. Indemnification Limitations.....................................................................9
7. MISCELLANEOUS............................................................................................9
7.01. No Waiver; Cumulative Remedies..................................................................9
7.02. Amendments, Waivers and Consents................................................................9
7.03. Notices.........................................................................................9
7.04. Binding Effect; Assignment.....................................................................10
7.05. Survival of Representations and Warranties.....................................................10
7.06. Severability...................................................................................11
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7.07. Governing Law..................................................................................11
7.08. Headings.......................................................................................11
7.09. Counterparts...................................................................................11
7.10. Closing Condition Waivers......................................................................11
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated this
30th day of March, 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 desires to
purchase additional shares of the Company's common stock, $0.01 par value per
share (the "Common Stock"), directly from the Company, subject to the terms and
conditions set forth herein.
B. The Company desires to sell shares of Common 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 COMMON STOCK
1.01. Authorization of Common Stock. The Company has authorized the
issuance and sale of 4,000,000 shares (the "Shares") of its authorized but
unissued shares of Common Stock, having the rights set forth in the Certificate
of Incorporation of the Company.
1.02. 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 $2.50 per
share, for an aggregate purchase price of $10,000,000. 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 at 9:00 a.m. (Dallas, Texas time) on the first
business day following the day on which 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 Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 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 the Registration Rights 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,
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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 $10,000,000 to
the Company by wire transfer of immediately available funds.
1.03. 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 and the financing of acquisitions.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
2.01. 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.
2.02. Authority. The Company has all requisite corporate power and
authority to enter into this Agreement and the Registration Rights Agreement, to
issue and sell the Shares and to carry out its obligations hereunder and under
the Registration Rights Agreement.
2.03. Enforceability. This Agreement and the Registration Rights
Agreement have 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.
2.04. 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 free of preemptive rights or similar rights of stockholders
of the Company and free and clear of any liens or other encumbrance.
2.05. 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
March 16, 2000, (i) 15,455,135 shares of Common Stock and 335,700 shares of
Restricted Common Stock were validly issued and outstanding, fully paid and
non-assessable, and (ii) no shares of preferred stock were issued or
outstanding.
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2.06. No Violation. The execution and delivery of this Agreement and
the Registration Rights 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 and the Registration Rights
Agreement will not (a) contravene any provision of the Certificate of
Incorporation or By-laws 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) consent under the Amended and Restated
Credit Facility dated August 18, 1999, as amended, among the Company, the
lenders set forth on Schedule 1 thereto and First Union National Bank as agent
for the lenders, which consent has 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").
2.07. 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.
2.08. Litigation. 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.
2.09. Registration Rights Agreement. The Company acknowledges and
agrees that 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.
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3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
3.01. 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.
3.02. 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.
3.03. 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.
3.04. 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.
3.05. Accredited Investor Status. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
3.06. 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.
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3.07. 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.
3.08. 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:
(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.
3.09. 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:
4.01. 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
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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 Closing Date (except to the
extent in either case that such representations and warranties speak as of
another date).
4.02. Refinancing of Senior Credit Facility. The Company shall have
completed the Refinancing of its senior credit facility on terms satisfactory to
the Purchaser in its sole discretion.
4.03. Third Supplemental Indenture. The Company and the Trustee shall
have executed and delivered the Third Supplemental Indenture, and the Amendments
contained therein shall have become effective.
5. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Common Stock Purchase Agreement, including all
amendments, modifications and supplements thereto.
"Amendments" shall mean the amendments to the Indenture described in
the Consent Solicitation Statement.
"Closing" shall have the meaning assigned to such term in Section 1.02.
"Closing Date" shall have the meaning assigned to such term in Section
1.02.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning assigned to such term in
Preliminary Statement A.
"Company" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Consent Solicitation Statement" shall mean that Consent Solicitation
Statement, dated as of March 27, 2000, relating to the Company's 10 1/8% Senior
Subordinated Notes due 2007.
"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 5.02.
"Indenture" shall mean that certain Indenture, dated as of December 19,
1997, by and among Richmont Marketing Specialists Inc. (which merged with and
into the Company in August 1999), the guarantor subsidiaries named therein and
Chase Bank of Texas, National
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Association (f/k/a Texas Commerce Bank National Association), relating to the
Company's 10 1/8% Senior Subordinated Notes due 2007.
"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.
"Purchaser" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Refinancing" shall mean the refinancing of the Company's existing
senior credit facility by entering into a Second Amended and Restated Credit
Agreement among the Company and First Union National Bank, as agent and entering
into a new revolving credit facility pursuant to a credit agreement among the
Company, certain of its subsidiaries and The Chase Manhattan Bank, as agent.
"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 1.01.
"Third Supplemental Indenture" shall mean the Third Supplemental
Indenture by and among the Company, its subsidiaries and the Trustee, effecting
the Amendments.
"Trustee" shall mean Chase Bank of Texas, National Association, the
trustee under the indenture governing the Company's 10 1/8% Senior Subordinated
Notes due 2007.
6. INDEMNIFICATION
6.01. 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 and in the Registration Rights 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.
6.02. Indemnification Procedure. Any party entitled to indemnification
under this Section 5 (an "Indemnified Party") will give written notice to the
indemnifying party of any
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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 5 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 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
5 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 5 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.
6.03. Indemnification Limitations. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to make claims under Section 5.01 hereof
only to the extent that the aggregate amount of losses arising from such claims
does not exceed $5,000,000. Nothing contained in this Section 5.03 shall be
construed to limit the indemnification obligations of the Company afforded to
any holder of Shares under the Registration Rights Agreement or afforded
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to any director or officer of the Company under its organizational documents,
state law or otherwise.
7. MISCELLANEOUS
7.01. No Waiver; Cumulative Remedies. No failure or delay on the part
of any party to this Agreement or the Registration Rights 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.
7.02. 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 or the
Registration Rights 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.
7.03. 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, L.L.P.
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 6.03 be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 6.03 be deemed given upon successful transmission,
(iii) if delivered by mail in the manner described above to the address as
provided in this Section 6.03 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 6.03 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.
7.04. Binding Effect; Assignment. Each of this Agreement and the
Registration Rights 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.
7.05. Survival of Representations and Warranties. All representations
and warranties made in this Agreement, the Registration Rights Agreement, or any
other instrument or document delivered in connection herewith or therewith,
shall survive the execution and delivery hereof or thereof for a period of 12
months after the date hereof.
7.06. Severability. The provisions of this Agreement, the Registration
Rights 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, the
Registration Rights 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 Registration Rights Agreement or the terms of
the Shares, but this Agreement and the Registration Rights 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.
7.07. 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.
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7.08. Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
7.09. 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.
7.10. 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.
[SIGNATURE PAGE FOLLOWS]
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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:
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Name:
---------------------------------
Title:
--------------------------------
MS ACQUISITION LIMITED
By: MS Acquisition Corp., its General
Partner
By:
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Name:
-----------------------------
Title:
----------------------------
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
