EXHIBIT 10.2
Execution Copy
STOCK PURCHASE AGREEMENT
BETWEEN
SUNSHINE II, LLC
AND
FRANKLIN CAPITAL CORPORATION
Dated October 3, 2002
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated October 3, 2002 (this "Agreement"),
by and between SUNSHINE II, LLC, a Colorado limited liability company (the
"Purchaser"), and FRANKLIN CAPITAL CORPORATION, a Delaware corporation (the
"Seller").
W I T N E S S E T H:
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, 773,196 shares (the "Shares") of
common stock, $0.01 par value (the "Common Stock"), of Excelsior Radio Networks,
Inc., a Delaware corporation (the "Company"), for the purchase price and upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
Article I
CERTAIN DEFINED TERMS
1.1 Certain Definitions.
For purposes of this Agreement, the following terms shall have the
meanings set forth as follows:
"Affiliate" means, with respect to any person, any other person
controlling, controlled by or under common control with such person.
"Lien" means any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, charge, option, right of first offer, right of first
refusal, pre-emptive right, easement, servitude, transfer restriction of any
kind, including, without limitation, under any shareholder or similar agreement,
encumbrance, any other third party rights of any kind or any other restriction
or limitation whatsoever.
Article II
SALE AND PURCHASE OF SHARES
2.1 Sale and Purchase of Shares. Upon the terms and subject to the
conditions contained herein, on the date hereof the Seller hereby sells,
assigns, transfers, conveys and delivers to the Purchaser, and the Purchaser
hereby purchases from the Seller, the Shares.
Article III
PURCHASE PRICE AND PAYMENT
3.1 Amount of Purchase Price. The purchase price for the Shares is an
aggregate amount equal to $1,500,000 (the "Purchase Price").
3.2 Payment of Purchase Price. The Purchaser shall pay the Purchase
Price to the Seller on the date hereof by wire transfer of immediately available
funds into an account designated by the Seller. Prior to or simultaneously with
the payment by the Purchaser of the Purchase Price, the Seller shall cause the
Company to deliver to the Purchaser a stock certificate (the "Certificate") in
the name of the Purchaser representing the Shares.
Article IV
REPRESENTATION AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser that:
4.1 Ownership and Transfer of Shares. The Seller is the record and
beneficial owner of the Shares, free and clear of any and all Liens. The Seller
has the corporate power and authority to sell, transfer, assign and deliver such
Shares as provided in this Agreement, and such delivery will convey to the
Purchaser good and marketable title to such Shares, free and clear of any and
all Liens and restrictions on transfer.
4.2 Binding Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Seller and is a valid and binding
agreement of the Seller enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally.
4.3 Organization. The Seller is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
4.4 No Breach. The execution, delivery and performance by the Seller
of this Agreement and the consummation by the Seller of the transactions
contemplated hereby do not, with or without the giving of notice or the passage
of time or both, (a) violate the provisions of any law, rule or regulation
applicable to the Seller; (b) violate the Certificate of Incorporation or
by-laws of the Seller or any judgment, decree, order or award of any court,
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governmental body or arbitrator applicable to the Seller of the Shares; or (c)
conflict with or result in a material breach or termination of, or constitute a
material default under, any indenture, mortgage, deed of trust or other
instrument or agreement to which either the Seller or the Company is a party or
by which any of the Shares being sold hereunder is or may be bound.
4.5 Capitalization. The authorized capital stock of the Company
consists of (i) 10,00,000 shares of Common Stock, of which 2,500,000 shares are
issued and outstanding as of the date hereof and are held by the persons set
forth on Schedule 4.5, and (ii) 100,000 shares of preferred stock, par value
$1.00 per share, 20,000 shares of which have been designated as Series A
Convertible Preferred Stock (the "Series A Convertible Preferred Stock"), 15,000
shares of which are issued and outstanding as of the date hereof and are held by
the persons set forth on Schedule 4.5. The Company has granted or currently
expects to grant options and warrants to purchase additional shares of Common
Stock to the persons, and on the terms, set forth on Schedule 4.5. Except as set
forth on Schedule 4.5, there are no other outstanding options, warrants or other
instruments exercisable into or rights to acquire any shares of capital stock of
the Company. Upon delivery to the Purchaser of the Certificate in accordance
with and pursuant to Section 3.2 of this Agreement, such Shares shall be duly
authorized, validly issued, fully paid and non-assessable, free and clear of all
pledges, Liens. Except as set forth herein, the Seller is not a party to any
agreement or understanding, and, to the Seller's knowledge, there is no
agreement or understanding between any persons, that restricts the voting or
giving of written consents with respect to any securities of the Company that
are owned by the Seller.
4.6 Disclosure. No representation or warranty contained in this
Agreement, and no statement contained in any schedule furnished to the Purchaser
pursuant to any provision of this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements herein or therein, in the light of the circumstances under which they
were made, not misleading.
Article V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller that:
5.1 Investment Intention. (a) The Purchaser is acquiring the Shares
for its own account, for investment purposes only and not with a view to the
distribution (as such term is used in Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act") thereof. The Purchaser understands that
the Shares have not been registered under the Securities Act and cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available.
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(b) The Purchaser is (i) an "accredited investor" within the meaning
of Rule 501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Shares, and (iv) able to afford the loss of is
investment in the Shares.
(c) The Purchaser understands that the Shares are being offered and
sold by the Seller in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Seller is relying upon the accuracy of, and Buyer's
compliance with, Buyer's representations, warranties and covenants set forth in
this Agreement to determine the availability of such exemption and the
eligibility of Buyer to purchase the Shares;
(d) The Purchaser acknowledges that in making its decision to
purchase the Shares it has been given an opportunity to ask questions of and to
receive answers from the Company's executive officers, directors and management
personnel concerning the terms and conditions of the private sale of the Shares
by the Seller.
(e) The Purchaser understands that the Shares have not been approved
or disapproved by the Securities and Exchange Commission or any state securities
commission and that the foregoing authorities have not reviewed any documents or
instruments in connection with the offer and sale to it of the Shares and have
not confirmed or determined the adequacy or accuracy of any such documents of
instruments.
5.2 Binding Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Purchaser and is a valid and binding
agreement of the Purchaser enforceable against it in accordance with is terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally.
5.3 No Breach. The execution, delivery and performance by the
Purchaser of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby do not, with or without the giving of notice or
the passage of time or both, (a) violate the provisions of any law, rule or
regulation applicable to the Purchaser, (b) violate the Operating Agreement of
the Purchaser or any judgment, decree, order or award of any court, governmental
body or arbitrator applicable to the Purchaser, or (c) conflict with or result
in a material breach or termination of, or constitute a material default under,
any indenture, mortgage, deed of trust or other instrument or agreement to which
the Purchaser is a party.
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Article VI
INDEMNIFICATION
6.1 Indemnification by the Seller.
From and after the date hereof, the Seller shall indemnify and hold
the Purchaser, its Affiliates, and their respective directors, officers,
employees, shareholders, members, partners, agents, successor and assigns
(collectively "Purchaser Claimants" and individually "Purchaser Claimant")
harmless, and defend each of them, from and against any and all demands, claims,
actions, liabilities, losses, costs, damages or expenses whatsoever (including
without limitation attorneys' fees and expenses) (collectively, "Claims")
asserted against, imposed upon or incurred by the Purchaser Claimants resulting
from, attributable to or arising out of any inaccuracy or breach, or, with
respect to any third party, resulting from, attributable to or arising out of
any inaccuracy or alleged inaccuracy or breach or alleged breach, of any
representation, warranty or covenant of the Seller contained herein. The
Purchaser Claimants' right to indemnification shall not be limited or affected
in any way by any investigation of the Seller or of the Company by the Purchaser
prior to the date hereof.
6.2 Indemnification by the Purchaser
From and after the date hereof, the Purchaser shall indemnify and
hold the Seller, its Affiliates, and their respective directors, officers,
employees, shareholders, members, partners, agents, successor and assigns
(collectively "Seller Claimants" and individually "Seller Claimant") harmless,
and defend each of them, from and against any and all Claims asserted against,
imposed upon or incurred by the Seller Claimants resulting from, attributable to
or arising out of any inaccuracy or breach, or, with respect to any third party,
resulting from, attributable to or arising out of any inaccuracy or alleged
inaccuracy or breach or alleged breach, of any representation or warranty of the
Purchaser contained herein. The Seller Claimants' right to indemnification shall
not be limited or affected in any way by any investigation of the Purchaser by
the Seller prior to the date hereof.
Article VII
VOTING AGREEMENT
7.1 Voting for Directors.
(a) Each of the Purchaser and the Seller hereby agrees that upon the
earlier to occur of (x) the date upon which the Company holds its next meeting
of shareholders and (y) November 30, 2002, at any annual, special or other
meeting of the holders of Common Stock, however called, or in connection with
any written consent of the holders of Common Stock in lieu of a meeting, each of
the Seller and the Purchaser shall vote (or cause to be voted) all of the shares
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of Common Stock and, if applicable, any other securities of the Company, over
which such party has voting power, whether such power exists now or is acquired
by such party after the date of this Agreement, in favor of the election of
directors to the Board of Directors of the Company (the "Board") as follows:
(i) if the Seller owns, at the time of such election,
thirty percent (30%) or more of the fully diluted
capital stock of the Company, three (3) persons
designated by the Seller and four (4) persons
designated by the Purchaser;
(ii) if the Seller owns, at the time of such election,
twenty percent (20%) or more, but less than thirty
percent (30%), of the fully diluted capital stock of
the Company, two (2) persons designated by the Seller
and five (5) persons designated by the Purchaser;
(iii) if the Seller owns, at the time of such election, ten
percent (10%) or more, but less than twenty percent
(20%), of the fully diluted capital stock of the
Company, one (1) person designated by the Seller and
six (6) persons designated by the Purchaser.
(iv) if the Seller owns, at the time of such election,
less than ten percent (10%) of the fully diluted
capital stock of the Company, seven (7) persons
designated by the Purchaser.
For purposes hereof, the percentage of the fully diluted capital
stock of the Company owned at any time by the Seller shall be computed by
dividing (i) the number of shares of Common Stock or any other securities,
options, warrants or similar instruments convertible into Common Stock then
beneficially owned (as defined in subsection 7.1(c) below, without regard to the
60-day limitation referred to therein) by the Seller by (ii) the sum of (x) the
total number of shares of Common Stock issued and outstanding at such time, (y)
the total number of shares of Common Stock that would be issued if all shares of
Series A Converted Preferred Stock issued and outstanding at such time were
immediately converted into Common Stock and (z) the total number of shares that
would be issued if all options, warrants or similar instruments were immediately
exercised, and any security issued in connection therewith that is convertible
into Common Stock were immediately converted into Common Stock.
(b) In the event that any person designated by either the Seller or
the Purchaser (as the case may be, the "Designating Party") and elected as a
director pursuant to subsection 7.1(a) above ceases to be a director for any
reason before his or her term expires, and so long as the obligations of each of
the Seller and the Purchaser pursuant to this Section 7.1 continue, each of the
Seller and the Purchaser shall vote (or cause to be voted) all of the shares of
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Common Stock and, if applicable, any other securities of the Company, over which
such party has voting power, whether such power exists now or is hereafter
acquired by such party, in favor of another person designated by the Designating
Party.
(c) Each of the Seller and the Purchaser shall continue to vote (or
cause to be voted) all of the shares of Common Stock and, if applicable, any
other securities of the Company, over which such party has voting power, whether
such power exists now or is acquired by such party after the date of this
Agreement, at every occasion described in subsections 7.1(a) and (b) above, in
accordance with such subsections until such time as such party no longer
beneficially owns (as defined in Rule 13d-3 promulgated pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), without
reference to the 60-day limitation contained therein), nor has the right to
acquire any shares of Common Stock pursuant to any warrant, option, purchase
agreement or any other agreement.
7.2 Size of Board. The Seller shall not at any time, without the
prior written consent of the Purchaser, vote or cause to be voted any shares of
Common Stock and, if applicable, any other security of the Company, over which
the Seller has voting power, whether such power exists now or is hereafter
acquired by the Seller, or allow any director designated by the Seller pursuant
to Section 7.1 to vote in favor of increasing the size of the Board beyond seven
(7) directors.
7.3 New Shares. In the event of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting any of the shares of Common Stock and,
if applicable, any other security of the Company, owned by either of the Seller
or the Purchaser, then the terms of this Agreement shall apply to any of the
shares of capital stock or other securities of the Company held by such party
immediately following the effectiveness of the events described above, as though
they were shares of Common Stock held as of the date hereof.
7.4 Restrictions on Transfer. Neither the Seller nor the Purchaser
may transfer any capital stock of the Company owned by such party on or after
the date hereof without the prior written consent of the other party hereto
unless the transferee in such transfer agrees with the Purchaser and the Seller
in writing to be bound by the terms of this Article VII; any purported transfer
without such an agreement or without the prior written consent of the applicable
party in the absence of such an agreement shall be deemed null and void.
7.5 Specific Performance.
Each of the Seller and the Purchaser agrees that the remedy at law
for any breach of this Article VII will be inadequate and that the Seller and
the Purchaser shall be entitled to specific performance of this Article VII in
addition to any other appropriate relief or remedy. EITHER PARTY HERETO MAY, IN
ITS SOLE DISCRETION, APPLY TO ANY COURT OF THE UNITED STATES LOCATED IN THE
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STATE OF DELAWARE OR ANY DELAWARE STATE COURT FOR SPECIFIC PERFORMANCE OR
INJUNCTIVE OR SUCH OTHER RELIEF AS SUCH COURT MAY DEEM JUST AND PROPER IN ORDER
TO ENFORCE THIS ARTICLE VII OR PREVENT ANY VIOLATION HEREOF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE SELLER AND THE PURCHASER WAIVE ANY
OBJECTION TO THE IMPOSITION OF SUCH RELIEF.
Article VIII
MISCELLANEOUS
8.1 Survival of Representations, Warranties and Covenants. The
parties hereto hereby agree that the representations, warranties and covenants
contained in this Agreement or in any certificate, document or instrument
delivered in connection herewith, shall survive the execution and delivery of
this Agreement, and the sale of the Shares hereunder, regardless of any
investigation made by the parties hereto.
8.2 Expenses. The Seller and the Purchaser shall each bear its own
expenses incurred in connection with the negotiation and execution of this
Agreement and the consummation of the transaction contemplated hereby, it being
understood that in no event shall the Company bear any of such costs and
expenses.
8.3 Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given if
delivered, telecopied or mailed, by certified mail, return receipt requested,
first-class postage prepaid, to the parties at the following addresses:
If to Franklin, to:
Franklin Capital Corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Sunshine, to:
Sunshine II, LLC
0000 X.X. 00xx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any party from time to time may change its address for the purpose of
notices to that party by giving a similar notice specifying a new address, but
no such notice will be deemed to have been given until it is actually received
by the party sought to be charged with the contents thereof.
8.4 Further Assurances. The Seller and the Purchaser each agrees to
execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transaction contemplated hereby.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflicts of laws provisions thereof, except that Article VII hereof shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of laws provisions thereof.
8.6 Table of Contents and Headings. The table of contents and section
headings of this Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this Agreement.
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8.7 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
8.8 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity not a party to this
Agreement except as provided below. Subject to Section 7.4 hereof, no assignment
of this Agreement or of any rights or obligations hereunder may be made by the
either the Seller or the Purchaser (by operation of law or otherwise) without
the prior written consent of the other party hereto and any attempted assignment
without the required consents shall be void; provided, however, that either
party hereto may assign its rights under Article VII hereof to any transferee of
any securities of the Company owned by such party without the prior written
consent of the other party.
8.9 Consent to Jurisdiction and Service of Process.
(a) THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT OR STATE COURT IN
THE STATE OF NEW YORK, COUNTY OF NEW YORK, HAVING SUBJECT MATTER JURISDICTION
OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE
PURCHASER AND THE SELLER HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVE ANY OBJECTION EACH OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, PERSONAL
JURISDICTION OF ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE PURCHASER TO BRING PROCEEDINGS
AGAINST THE SELLER IN THE COURTS OF ANY OTHER JURISDICTION.
(b) THE PURCHASER AND THE SELLER HEREBY AGREE THAT SERVICE OF THE
SUMMONS AND COMPLAINT AND ALL OTHER PROCESS WHICH MAY BE SERVED UPON EITHER
PARTY IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED, A COPY OF SUCH PROCESS TO SUCH PARTY
AT THE ADDRESS TO WHICH NOTICES TO SUCH PARTY ARE THEN TO BE SENT PURSUANT TO
SECTION 8.3 HEREOF AND THAT PERSONAL SERVICE OF PROCESS SHALL NOT BE REQUIRED.
NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT SERVICE OF PROCESS BY ANY OTHER
METHOD PERMITTED BY LAW.
8.10 Waiver of Jury Trial.
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THE PURCHASER AND THE SELLER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DEALINGS BETWEEN OR AMONG THEM RELATING TO THE SUBJECT MATTER
OF THE TRANSACTION CONTEMPLATED HEREBY AND ANY RELATIONSHIP THAT IS BEING
ESTABLISHED AMONG ANY OF THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. THE PURCHASER AND THE SELLER ACKNOWLEDGE THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. THE PURCHASER
AND THE SELLER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, AND WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT. THE PURCHASER AND THE SELLER ALSO WAIVE ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE PURCHASER.
8.11 Entire Agreement. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written understandings and
agreements of the parties related to the transactions contemplated hereby.
8.12 Counterparts. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
SUNSHINE II, LLC
By: /s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Manager
FRANKLIN CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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