EXHIBIT 10.106
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT made as of July 15, 1997 (this "Agreement") by and
among DAVCO INDUSTRIES, INC., a New York corporation having its principal office
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as,
"Davco"), ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual residing at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("SA"), ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual residing at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CH") (SA and CH being the
owners of all of the outstanding capital stock of Davco and hereinafter
collectively referred to as, the "Davco Principals"), ARIS MANAGEMENT CORP., a
New York corporation having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as "AMC") and ARIS INDUSTRIES, INC., a New York
corporation having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Aris");
WHEREAS, Davco, the Davco Principals, and AMC (an indirect subsidiary of
Aris) have entered into an Asset Purchase Agreement dated as of July 15, 1997
(the "Asset Purchase Agreement") providing for the sale by Davco to AMC of the
Purchased Assets including the Davco Apparel Business (both as defined in the
Asset Purchase Agreement) and the goodwill thereof as a going concern, its
corporate and trade names and its trademark licenses, and the closing under the
Asset Purchase Agreement has occurred on the date hereof (the "Closing Date");
WHEREAS, the purchase price payable AMC to Davco pursuant to the Asset
Purchase Agreement includes THREE MILLION (3,000,000) shares of the Common
Stock, par value $.01 per share, of Aris ("Aris Common Stock") delivered on the
Closing Date(such shares of Aris Common Stock delivered to Davco pursuant to the
Asset Purchase Agreement referred to herein as the "Shares");
WHEREAS, it is a closing condition under the Asset Purchase Agreement that
Davco and the Davco Principals enter into this Agreement providing for certain
restrictions on the transfer of the Shares; and
WHEREAS, APOLLO ARIS PARTNERS, L.P., a Delaware limited partnership, having
an address c/o Apollo Advisors, L.P., Two ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Apollo") and ▇▇▇▇▇▇▇ ▇. RAMAT, an
individual residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("CSR") are
each shareholders of Aris and shall be the beneficiaries of certain provisions
of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of AMC's entering
into the Asset Purchase Agreement, the mutual agreements and covenants herein
contained, and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
HEREBY AGREE AS FOLLOWS:
1. Applicability of Restrictions of this Agreement. The restrictions
and other provisions set forth in this Agreement with respect to the Shares
shall apply to the Shares as held of record and/or beneficially by Davco
and the Davco Principals, and shall continue to apply in full force and
effect notwithstanding any distribution, transfer or assignment of Shares
at any time from Davco to the Davco Principals and notwithstanding the
liquidation, dissolution or winding up of Davco. Davco and the Davco
Principals shall notify Aris in writing at least ten (10) days in advance
of any distribution, transfer or assignment from Davco to any of the Davco
Principals specifying the details of the number of shares being transferred
and the transferee thereof. The restrictions and other provisions set forth
in this Agreement with respect to the Shares shall also apply to all equity
securities of Aris which may be issued, distributed to, or exchanged with
Davco or the Davco Principals, in respect of the Shares, including those
resulting from reclassification, recapitalization, combinations or
exchanges of shares, reorganizations, liquidations, split-ups,
distributions of a dividend payable in stock, changes in par value, or
shares resulting from any merger, consolidation, or sale or exchange of
shares or assets of Aris.
2. Representations, Warranties and Covenants of Davco and Davco
Principals. Davco and the Davco Principals, jointly and severally,
represent and warrant unto and covenant and agree with AMC and Aris, and
such representations, warranties, covenants and agreements are material
inducements to AMC and Aris entering into this Agreement and AMC entering
into the Asset Purchase Agreement:
(a) Davco and the Davco Principals acknowledge and agree that no
assurances or representations are made by AMC or Aris as to the
present or future market value of the Shares of Aris Common Stock
issued to Davco pursuant to the Asset Purchase Agreement. Davco and
the Davco Principals acknowledge their receipt and review of Aris'
Form 10K for the year ended December 31, 1996, its Form 10Q for the
first quarter ended March 31, 1997, and its Form 8K's dated May 5,
1997 and June 18, 1997, all as filed with the Securities and Exchange
Commission ("SEC"). Each of Davco and the Davco Principals, and their
representatives, have been granted the opportunity to ask questions
of, and receive answers from, representatives of Aris concerning the
terms and conditions of the purchase of the Shares and to obtain any
additional information that they deem necessary regarding Aris or the
Shares and each of their knowledge and experience in financial and
business matters is such that he or it is capable of evaluating the
merits and risks
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of the investment in the Shares, or he or it has been advised by a
representative possessing such knowledge and experience. Neither Aris
nor AMC nor their professional advisors have provided or offered to
provide any tax, legal or financial advice to Davco or the Davco
Principals in connection with the Asset Purchase Agreement or their
acquisition of the Shares and they are relying solely on their own
advisors for tax, legal and finance advice relating thereto.
(b) All Shares of Aris Common Stock delivered pursuant to the
Asset Purchase Agreement shall be acquired by Davco and the Davco
Principals for investment and not with a view toward, or for sale in
connection with, any distribution thereof, nor with any intention of
distributing or selling such shares of Aris Common Stock; provided
however, that the foregoing shall not preclude Davco or the Davco
Principals from transferring shares of Aris Common Stock in accordance
with Rule 144 Brokers Transactions (as defined herein) subject to the
limitations as to timing and amounts of Shares set forth in this
Agreement.
(c) The Shares of Aris Common Stock obtained by the Seller
pursuant to this Agreement have not been registered under the
Securities Act of 1993, as amended (the "Securities Act"), shall be
"restricted stock", and even if a sale is otherwise permitted by this
Agreement, the Shares may not be resold without an effective
registration statement under the Securities Act or an exemption
therefrom pursuant to Rule 144 or otherwise and shall be so legended.
Any Transfer of Shares otherwise permitted by this Agreement shall be
made only in full compliance with the Securities Act and the rules and
regulations of the Securities and Exchange Commission (the "SEC")
thereunder and applicable state securities law and regulations. Any
Transfer(as defined in Section 3 below) of the shares of Aris Common
Stock obtained pursuant to this Agreement shall require an opinion of
counsel of Aris to the effect that the Transfer is in compliance with
the Securities Act (the cost of which shall be paid by Seller); such
opinion shall not be unreasonably withheld or delayed. Davco and the
Davco Principals undertake to file with the SEC and with Aris all
necessary Forms 144, Forms 3, 4 and 5, Forms 13D and other required
reports and filings, and amendments thereof, in connection with any
Transfer of Shares. Davco and the Davco Principals agree that prior to
making any Transfer of the Shares they will give written notice to
Aris describing the manner of such proposed Transfer and the number of
Shares involved. Davco and the Davco Principals agree to furnish any
additional information reasonably requested by Aris to assure
compliance with applicable federal and state securities laws in
connection with any Transfer of Shares.
(d) Davco and the Davco Principals acknowledge that it and they
are familiar with Rule 144, as amended, under the Act, and that they
have been advised that Rule 144 permits,
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only under certain circumstances, the public resale of restricted
securities such as the Shares.
3. No Transfers Except as Permitted by This Agreement. Neither Davco nor
the Davco Principals shall directly or indirectly sell, exchange, transfer,
gift, pledge, hypothecate, grant a security interest in, grant a proxy with
respect to, devise, assign or in any other way dispose of, encumber or grant a
security interest in (hereinafter referred to as a "Transfer"), any of the
Shares, or any interest therein or any certificates representing any such
Shares, nor shall they or any of them attempt to do so, except as permitted by
this Agreement. Any purported Transfer in violation of this Agreement shall be
invalid.
4. Transfers Must Comply With Securities Laws. Any Transfer of Shares
otherwise permitted by this Agreement shall be made only in full compliance with
the Securities Act and applicable and state securities laws and regulations.
5. Legend. So long as this Agreement remains in effect, there shall be
noted conspicuously upon each stock certificate representing Shares (and any
replacement certificate therefor), the following statement:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 as amended ("the Securities
Act") nor under any applicable state securities act and may not be
transferred, offered, sold, pledged or hypothecated except pursuant to (i)
an effective registration statement relating to such stock under the
Securities Act and any applicable state securities act, or (ii) to the
extent applicable, Rule 144 under the Securities Act (or any similar rule
under such act or acts relating to the disposition of securities). An
opinion of counsel satisfactory to the Corporation that Rule 144 is
available and applicable shall be a condition to any proposed transaction
involving such shares.
"The rights to transfer and vote the Shares represented by this
certificate are further restricted by the terms and provisions contained in
a Shareholders Agreement dated July 15, 1997 on file at the offices of the
Corporation."
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6. Additional Transfer Restrictions; Rule 144 Brokers Transactions in
Limited Amounts. Davco and the Davco Shareholders hereby agree that, in addition
to limitations on Transfer imposed by Rule 144 and other applicable federal and
state securities laws and regulations, Transfers of the Shares shall be further
limited to sales which are over the market in "brokers transactions" (as defined
in Rule 144 and attached as Exhibit A hereto) and meeting the manner of sale and
all other requirements of Rule 144 (such sales referred to herein as "Rule 144
Brokers' Transactions"), at the times and in the amounts set forth as follows:
(a) No Transfers may be made during the first year following the
Closing Date.
(b) In each of the second, third and fourth years following the
Closing Date, a maximum of 300,000 of such Shares per year may be sold in
Rule 144 Brokers Transactions for the account of SA (beneficially or of
record) and a maximum of 300,000 of such Shares per year may be sold in
Rule 144 Brokers Transactions for the account of CH (beneficially or of
record).
(c) Commencing in the fifth year following the Closing Date, a maximum
of 600,000 of such Shares per year may be sold in Rule 144 Brokers
Transactions for the account of SA (beneficially or of record) and a
maximum of 600,000 of such Shares per year may be sold in Rule 144 Brokers
Transactions for the account of CH (beneficially or of record).
References herein to the limitation on Shares sold for the account of SA or CH
"beneficially or of record" shall mean shares sold directly by SA or CH if
certificates for Shares are registered in their individual names and shares sold
by Davco (which must be allocated to either SA or CH for this purpose) if
certificates for Shares are registered in Davco's name. In the event Davco, SA
or CH desire to sell any Shares in Rule 144 Brokers Transactions as permitted by
this Section 5, they shall notify Aris in writing at least five (5) days in
advance of the proposed sale, specifying the details as to the transferor, for
whose account such transfer is allocated, and the number of Shares proposed to
be sold.
7. Additional Transfer Restrictions-Private and Other Sales.
(a) During the first four (4) years following the Closing Date,
Transfers of the Shares (other than in Rule 144 Brokers Transactions
subject to the limitation in amounts and timing set forth in Section 5
above) shall NOT be permitted without the advance written consent of Aris
in each case, which it may withhold in its sole discretion. Without
limiting the
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generality of the foregoing, privately negotiated sales, regardless of
amount, and whether or not involving a significant block or bulk of
Shares, or any sales which are the result of solicitation or offers of
or to a purchaser or purchasers by Davco or the Davco Principals,
shall NOT be permitted during the first four (4) years following the
Closing Date.
(b) Commencing in the fifth year following the Closing Date, Transfers
of the Shares (other than in Rule 144 Brokers Transactions subject to the
limitation in amounts and timing set forth in Section 5 above) for an
all-cash purchase price shall only be permitted subject to successive
rights of first refusal of (1) Aris, and (2) Apollo and CSR, in compliance
with the procedures and limitations set forth in Section 6(c) below.
Transfer of Shares other than for an all-cash purchase price shall not be
permitted.
(c) In the event that from and after the completion of four(4) years
from the Closing Date, either Davco or the Davco Principals desire to
Transfer any Shares (other than in Rule 144 Brokers Transactions subject to
the limitation in amounts and timing set forth in Section 5 above) (such
transferor referred to as a "Selling Shareholder") and intends to accept a
bona fide written offer received from a third party unaffiliated with
Davco, the Davco Principals or Aris (including an offer which is the result
of solicitation by the Selling Shareholder) for any of his Shares of Aris
for an all-cash purchase price, then the Selling Shareholder shall promptly
give to Aris, Apollo and CSR written notice thereof, attaching the written
offer of the third party, and setting forth the number of Shares to be
transferred, the cash purchase price per share to be paid by the third
party, the identity of the third party offeror, evidence of the financial
capability of the third party offeror and details as to the transferor and
for whose account the Shares will be sold. Aris shall have the right, by
written notice to the Selling Shareholder, Apollo and CSR within thirty
(30) days thereafter, to purchase any or all the Shares covered by such
offer at same all-cash purchase price per share set forth in the third
party offer. In the event that Aris shall not elect to exercise such right
of first refusal, or shall elect to exercise such right of first refusal
for less than all of the Shares proposed to be transferred, then Apollo and
CSR shall have the right, by written notice given to the Selling
Shareholder and Aris within a further thirty (30) day period, to purchase
any or all the Shares (which Aris has not elected to purchase) covered by
such offer at the same all-cash purchase price per share set forth in the
third party offer. As between Apollo and CSR, they shall have equal rights
to purchase any such Shares available; if either of Apollo or CSR does not
purchase its full portion of the Shares available to be purchased, the
other of Apollo and CSR shall have the right to purchase the balance.
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To the extent that Aris, Apollo and/or CSR elect to exercise their rights
of first refusal to purchase any Shares covered by such third party offer, a
closing for the purchase of such Shares will be held at a time and place
specified by Aris, Apollo and/or CSR, as applicable, within ninety (90) days of
the Selling Shareholder's original notice of proposed transfer, at which time
the purchaser(s) shall tender the cash purchase price for the Shares to be
transferred to them, and the Selling Shareholder shall transfer such Shares to
the purchaser(s), free and clear of all liens, claims and encumbrances
whatsoever, and shall deliver stock certificates and stock powers therefor
endorsed in blank.
Failure to give any notice during said exercise periods shall be deemed to
be an election not to exercise a right of first refusal as to such offer. The
election by Aris, Apollo or CSR not to exercise their right of first refusal as
to any offer shall not affect their right of first refusal as to any subsequent
offer. If Aris, Apollo and CSR, in the aggregate, elect to exercise their rights
of first refusal, as to less than all the Shares offered by the Selling
Shareholder, then the Selling Shareholder may proceed to transfer the balance of
his or its Shares covered by the third party offer within a period of ninety
(90) days after the original notice of the offer and shall provide Aris, Apollo
and CSR with written notification of the completion of such sale; but if such
sale is not consummated within such 90 day period, the Shares covered by the
offer, if subsequently to be transferred by the Selling Shareholder, will be
subject to the right of first refusal provided by this Section 6(c). A Selling
Shareholder may not initiate the procedure to transfer Shares pursuant to this
Section 6(c) by sending notice more frequently than once every six months.
8. Restriction on Acquisitions of Additional Aris Shares Except for the
Shares issued on the Closing Date, neither Davco nor the Davco Principals, nor
any affiliate or family member thereof shall, directly or indirectly, purchase
or acquire any shares of Aris Common Stock or other capital stock, securities or
debt instruments of Aris (or its subsidiaries) of any class, except with the
advance written consent of Aris in each instance.
9. Voting Agreements. For so long as ▇▇▇▇▇▇▇ ▇. Ramat is Chairman, Chief
Executive Officer or President of Aris, Davco and the Davco Principals agree
that upon any matter submitted to or requiring the vote of the holders of Aris
Common Stock (including without limitation, for the election of Directors of
Aris), they will vote all of the shares of Aris Common Stock owned by them or
their affiliates(including without limitation, the Shares) for the
recommendations, proposals and nominations of the Board of Directors of Aris,
and on the Closing Date and from time to time thereafter, Davco and the
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Davco Shareholders shall execute and deliver such proxies and other
documentation to effectuate such obligation.
10. Registration Rights.
(a) Davco and the Davco Principals shall be entitled to certain
"piggyback" registration rights with respect to the Shares to the extent
and in accordance with the terms and procedures set forth in this Section
10; provided, however, that under no circumstances shall they be entitled
to demand registration rights. The Shares owned by Davco and the Davco
Principals which at the time of a registration by Aris may be entitled to
registration rights under this Section 10 are referred to as the "Eligible
Shares"; the Eligible Shares shall be defined to include those specific
Shares issued to Davco and the Davco Principals on the Closing Date
pursuant to the Asset Purchase Agreement which at the time of registration
are still owned by Davco and/or the Davco Principals. Registration rights
granted herein to Davco and the Davco Principals shall not be transferable
or assignable.
(b) Aris shall advise Davco and the Davco Principals by written notice
at least fifteen (15) days prior to the filing by Aris of any underwritten
registration statement under the Securities Act covering Aris Common
Stock(other than on Form S-8 or equivalent successor form) and in which the
"Existing Major Shareholders" (as defined herein) would be eligible to have
their shares of Aris Common Stock included in such registration on a
"piggyback" basis pursuant to the Equity Registration Rights Agreement
dated June 30, 1993 between Aris and the Existing Major Shareholders (the
"Registration Rights Agreement") and will upon the written request of Davco
and the Davco Principals specifying the number of Eligible Shares requested
to be included, include in any such registration statement the requested
Eligible Shares to the same proportionate extent as if Davco and the Davco
Principals were Existing Major Shareholders (to the extent of such
requested Eligible Shares) and the Existing Major Shareholders' shares of
Aris Common Stock were eligible for inclusion in such registration
statement on a "piggyback" basis pursuant to the Registration Rights
Agreement, after giving effect to all adjustments, allocations,
reallocations and limitations provided for in the Registration Rights
Agreement (such portion of the Eligible Shares which may be included in the
proposed registration collectively referred to as the "Registerable
Shares"). The Existing Major Shareholders are defined as Apollo, CSR,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and trusts
affiliated with, or for the benefit of family members of, such persons, who
are parties to the Registration Rights Agreement.
(c) Davco and the Davco Principals shall furnish Aris with appropriate
information in connection with any
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registration of the Registerable Shares as Aris may request. All costs
and expenses of such registration statement covering the Registerable
Shares shall be borne by Aris, except that Davco and the Davco
Principals shall bear the fees of their own counsel, pay any and all
taxes applicable to the sale of the securities sold by the them and
pay any underwriting discounts or commission applicable to any of the
securities sold by them.
(d) Whenever a registration statement relating to any of the
Registerable Shares is filed under the Securities Act, Aris will indemnify
and hold harmless each of Davco and the Davco Principals as a holder of the
Registrable Shares covered by such registration statement to the same
extent (and subject to the same limitations and exclusions) as Aris would
be required to indemnify the Existing Major Shareholders who would be
entitled to participate in such registration on a "piggyback basis"
pursuant to the Registration Rights Agreement, and Davco and the Davco
Principals will indemnify Aris to the same extent (and subject to the same
limitations and exclusions) as the Existing Major Shareholders would be
required to indemnify Aris if they were to participate in such registration
pursuant to the Registration Rights Agreement, in each case under the same
terms, conditions and procedures as set forth in the Registration Rights
Agreement.
(e) The parties hereto acknowledge and agree that the registration
rights granted to Davco and the Davco Principals hereunder shall expire and
shall no longer be exercisable five (5) years from the Closing Date.
(f) Davco and the Davco Principals agree that they will not Transfer
any shares of Aris Common Stock during the five (5) business days prior to,
and during the sixty (60) day period beginning on, the effectiveness of any
registration statement with respect to Aris Common Stock or other
securities of Aris.
11. General Provisions.
(a) This Agreement (together with the Asset Purchase Agreement and the
other documentation executed in connection therewith) contains all of the
terms of the understanding between Davco, the Davco Principals, AMC and
Aris with respect to the subject matter hereof and, except as expressly set
forth herein or therein, no representation has been made by or relied upon
by either party hereto. This Agreement may not be changed or modified
except in a writing signed by the each of the parties hereto.
(b) Each of Davco and the Davco Principals represents and warrants
that he and it is not a party to any agreement, contract or understanding,
which would in any way
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restrict or prohibit him from undertaking or performing the terms and
conditions of this Agreement.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Each party hereto for himself or
itself and his or its successors and assigns hereby consents to personal
jurisdiction over him or it in the courts of the State of New York and of
any federal court located in such state in connection with any action or
proceeding arising out of, or related to, this Agreement. Each party hereto
agrees that service of process upon him or it may be made in any manner
permitted by the laws of the State of New York, and in addition,
specifically agrees that service of will be deemed sufficient for personal
jurisdiction over him or it if service is made by registered or certified
mail at the address of such party set forth above. Each of Davco and the
Davco Principals, for itself, himself its and his heirs, personal
representatives, successors and assigns, agrees that no action, suit or
proceeding of any kind may be brought, and no claim may be asserted
(whether by counter-claim, cross-claim or otherwise) by it, him or them
against Aris or any affiliates thereof with respect to any matter arising
from this Agreement, except in the courts of the State of New York and the
federal courts located in the State of New York.
(d) All notices and other communications hereunder shall be in writing
and deemed to have been duly given if personally delivered or mailed, first
class, postage prepaid, certified mail, return receipt requested, to the
other party hereto at its or his address above written or at such other
address as either of the parties may designate in conformity with the
foregoing. All notices to Aris or AMC shall be sent to ▇▇▇▇▇▇▇ ▇. Ramat,
President of Aris. Copies of all notices to Aris, AMC, Apollo or CSR shall
be sent to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Copies of all notices to Davco or the
Davco Principals shall be sent to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Att: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(e) No waiver of any breach of any terms hereof shall be effective
unless made in writing signed by the party against whom enforcement of the
waiver is sought, and no such waiver shall be construed as a waiver of any
subsequent breach of that term or of any other term of the same or
different nature.
(f) This Agreement shall be binding upon the parties hereto and their
heirs, executors, administrators, successors and assigns. Neither Davco nor
the Davco Principals may assign any of its or their rights or obligations
under this Agreement. The liquidation and dissolution of Davco shall not
modify, reduce, or release any obligation of Davco or the Davco
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Principals under this Agreement, all of which shall remain in full force
and effect and enforceable against the Davco Principals, notwithstanding
the liquidation and dissolution of Davco. Davco shall not be permitted to
dissolve or liquidate except pursuant to the procedures set forth in the
Asset Purchase Agreement.
(g) This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
(h) The provisions and covenants set forth in this Agreement are for
the benefit of the parties to this Agreement, Apollo and CSR and not for
the benefit of any creditor or other person, and no creditor or other
person shall have any right to enforce the provisions and covenants against
any party hereto.
(i) If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, or as to any jurisdiction, such
provision shall be deemed to be modified or restricted to the extent and in
the manner necessary to render the same valid and enforceable, or shall be
deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted
by law as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
(j) Each of the parties hereto shall cooperate and take such actions,
and execute such other documents as may be reasonably requested by the
other in order to carry out the provisions and purposes of this Agreement.
(k) Notwithstanding any other provision of this Agreement, it is
understood and agreed that CSR and Apollo are beneficiaries of certain
obligations of Davco, the Davco Principals and Aris set forth herein, that
CSR and Apollo have countersigned this Agreement solely as beneficiaries of
such obligations and to confirm that they may enforce such obligation
against Davco, the Davco Principals and Aris, and neither CSR
[balance of page intentionally left blank]
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nor Apollo shall have any obligation to Davco, the Davco Principals or Aris by
reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
DAVCO INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Individually
ARIS MANAGMENT CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. RAMAT
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Name: ▇▇▇▇▇▇▇ ▇. Ramat
Title: Chairman
ARIS INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. RAMAT
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Name: ▇▇▇▇▇▇▇ ▇. Ramat
Title: President
APOLLO ARIS PARTNERS, L.P.
(Beneficiary)
By: AIF-II, L.P., its General Partner
By: Apollo Advisors, L.P., its General
Partner
By: Apollo Capital Management, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
/s/ ▇▇▇▇▇▇▇ ▇. RAMAT
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▇▇▇▇▇▇▇ ▇. Ramat, individually
(Beneficiary)
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