Contract
Exhibit
99.2
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO
SELLERS (AS DEFINED BELOW) THAT SUCH REGISTRATION IS NOT REQUIRED.
BACKSTOP
AGREEMENT, dated as of January 3, 2008 (this “Agreement”), by
the Sellers
identified on the signature page hereof (each, a "Seller" and collectively,
the
“Sellers”) and Xxxxxx
Bay Fund, LP, a Delaware limited partnership (collectively, and together
with
any designated affiliate as provided in Section 12 below, the “Investor”).
WHEREAS,
Echo Healthcare Acquisition Corp., a Delaware corporation (“Echo”), has entered
into a
Second Amended and Restated Agreement and Plan of Merger dated October
23, 2007
(the “Merger
Agreement”), pursuant to which Echo will acquire all of the issued and
outstanding shares of capital stock of XLNT Veterinary Care, Inc. (“XLNT”) on the terms
and
subject to the conditions set forth therein (the “Transaction”). The
consummation of the Transaction is subject to, among other things, (1)
the
approval of the proposal approving the Transaction (the “Transaction Proposal”) set
forth in Echo’s definitive proxy statement dated November 12, 2007 by the
affirmative vote of a majority of the shares of Echo’s common stock, par value
$.0001 per share (the “Common
Stock”), (a) issued in its initial public offering (the “IPO”) and
actually voting on
such proposal at the special meeting of the stockholders of Echo (including
any
postponement or adjournment thereof, the “Special Meeting”) and (b)
issued and outstanding as of the November 7, 2007 record date (the “Record
Date”) for the Special Meeting; and (2) less than 20% of the shares of Echo’s
common stock issued in the IPO voting against the Transaction Proposal
and
electing a cash conversion of their shares.
WHEREAS,
the Investor intends to acquire shares of Echo’s Common Stock, in either
open-market purchases or by means of individually negotiated transactions
and
the Sellers are willing to enter into this Agreement to provide the Investor
with the Backstop Right described below.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as
follows:
1.
Definitions. For
purposes of this Agreement, the following defined terms shall have the
following
meanings:
“Additional
Shares” means the
number of shares of Common Stock to be received by Investor in connection
with
the Transaction, equal to 100,000 shares, plus the number of Purchased
Shares
multiplied by 0.3125; provided, that the number of Additional Shares
shall not
be more than 412,500 shares.
1
“Affiliate”
means,
with
respect to any Person, a Person who is an “affiliate” of such first Person
within the meaning of Rule 405 under the Securities Act.
“Backstop
Payment” means the
Interim Backstop Payment (as defined in Section 2) and the Aggregate
Buyback
Amount (as defined in Section 3).
“Backstop
Right” shall mean
the right to receive the Backstop Payments and the other consideration
to be
provided by Sellers to the Investor pursuant to this Agreement.
“Business
Day” means any day
on which the Common Stock is traded on the Principal Market, or, if the
Principal Market is not the principal trading market for the Common Stock,
then
on the principal securities exchange or securities market on which the
Common
Stock is then traded; provided that "Business Day" shall not
include any day on which the Common Stock is scheduled to trade on such
exchange
or market for less than 4.5 hours or any day that the Common Stock is
suspended
from trading during the final hour of trading on such exchange or market
(or if
such exchange or market does not designate in advance the closing time
of
trading on such exchange or market, then during the hour ending at 4:00:00
p.m.,
New York Time).
“Economic
Hedge” means any
hedging or similar transaction, including a short sale, designed to transfer
the
economic risk of some or all of an investment in the Common Stock away
from the
Investor; provided, that
the
Sale of any Total Shares shall not be deemed to be an Economic Hedge.
“Initial
Investment Amount”
as of any date means (i) the aggregate purchase price paid by the Investor
for
all Purchased Shares (inclusive of all reasonable fees and documented
brokers’ fees, commissions or similar transaction costs), but in no event shall
the per Share purchase price for any Purchased Shares exceed $8.10 per
share
without the consent of the Sellers' Representative).
“Lien”
means
any lien, pledge,
claim, charge, mortgage, security interest or other encumbrance of any
kind,
whether arising by contract or by operation of law.
“One
Year Anniversary Date”
shall mean the first anniversary of closing of the Transaction,
or if
such day is not a Business Day, the next Business Day.
“Person”
means
an individual,
corporation, partnership, limited liability company, joint venture, association,
trust, unincorporated organization, charitable or not-for-profit institution
or
organization or other entity or any governmental entity.
“Purchased Shares”
means the number of shares of Common Stock that the Investor acquires
in either
open-market purchases or by means of individually negotiated transactions
between the date of this Agreement and prior to 11:00 p.m. New York time
the day
before the Special Meeting (or, if later, any adjournment or postponement
thereof) is called to order and beneficially owns as of the close of
business on
the date of the Special Meeting, or acquired after such time and before
the
Special Meeting and voted in favor of each item to be considered by stockholders
at the Special Meeting. For the avoidance of doubt,
“Purchased Shares” shall not include (i) any shares of Common Stock
that were (i) acquired by the Investor prior to the beginning of such
period, or
(ii) any Purchased Shares that are subsequently sold or transferred by
the
Investor prior to the date of the Special Meeting.
2
"Rejected
Offer" means a bona
fide written offer to sell any of the Total Shares for cash immediately
available upon settlement (within no more than three Business Days) through
any
of the brokers listed on Schedule 1 attached hereto at a price per share
equal
to or greater than $6.25, which offer was one that the Investor is able
to
immediately accept but is not accepted by Investor; provided, however,
that a "Rejected
Offer" shall not include an offer that was not accepted or a transaction
not
completed for any reason outside the discretion of the Investor.
"Rejected
Shares" means shares
subject to a Rejected Offer.
“Securities
Act” means the
Securities Act of 1933, as amended.
“Sellers’
Representative”
shall mean Windy City, Inc.
“Six
Month Anniversary Date”
shall mean the date that is six months from the closing of the
Transaction, or if such day is not a Business Day, the next Business
Day.
“Total
Shares” means the
Purchased Shares and the Additional Shares.
“Weighted
Average Price”
means, for the Common Stock as of any date, the dollar volume-weighted
average
price for the Common Stock on the principal trading market for the Common
Stock
as of such date (the “Principal Market”) during
the period
beginning at 9:30:01 a.m., New York Time (or such other time as the Principal
Market publicly announces is the official open of trading), and ending
at
4:00:00 p.m., New York Time (or such other time as the Principal Market
publicly
announces is the official close of trading) as reported by
Bloomberg Financial Markets (“Bloomberg”) through its
"Volume at Price" functions, or, if the foregoing does not apply, the
dollar
volume-weighted average price of the Common Stock in the over-the-counter
market
on the electronic bulletin board for such security during the period
beginning
at 9:30:01 a.m., New York Time (or such other time as such market publicly
announces is the official open of trading), and ending at 4:00:00 p.m.,
New York
Time (or such other time as such market publicly announces is the official
close
of trading) as reported by Bloomberg, or, if no dollar volume-weighted
average
price is reported for the Common Stock by Bloomberg for such hours, the
average
of the highest closing bid price and the lowest closing ask price of
any of the
market makers for the Common Stock as reported in the "pink sheets" by
Pink
Sheets LLC. If the Weighted Average Price cannot be calculated for
the Common Stock on a particular date on any of the foregoing bases,
the
Weighted Average Price of such security on such date shall be the fair
market
value as mutually determined by the Backstop Party Representative and
the
Investor. All such determinations to be appropriately adjusted for
any stock dividend, stock split, stock combination or other similar transaction
during the applicable calculation period.
2.
Backstop
Right.
(a)
Interim
Backstop Payment. Subject to the terms and conditions of this
Agreement, if the Interim Investment Amount (as defined below) exceeds
the
Interim Market Value, the Sellers will pay to the Investor an amount
(the “Interim Backstop Payment”)
equal to 50%
of such excess. The Interim Backstop Payment
shall be made no later than the third Business Day following the Six
Month
Anniversary Date (the "Interim Closing") by wire transfer of immediately
available funds to an account or accounts designated in writing by the
Investor
prior to the Interim Closing.
3
(b)
"Interim Investment
Amount" means the Initial Investment Amount, less
(i) proceeds to
the Investor from any sales of any of the Total Shares prior to the Six
Month
Anniversary Date and (ii) the proceeds that would have been payable to
the
Investor pursuant to any Rejected Offer received by Investor prior to
the Six
Month Anniversary Date, had such Rejected Offer been accepted.
(c)
"Interim Market Value"
shall mean the product of (i) the arithmetic average of the Weighted
Average
Price for the Common Stock for the 20 consecutive Business Days ending
on the
Six Month Anniversary Date, multiplied by (ii) the number of Total Shares
held
by the Investor as of the Six Month Anniversary Date, excluding Rejected
Shares.
3.
One
Year
Anniversary Purchase Obligation.
(a)
Purchase
and Sale. Subject to the terms and conditions of this
Agreement, the Sellers jointly and severally agree to purchase (the "Purchase Obligation") from
the Investors, and the Investors agree to sell to the Sellers, all of
the
Buyback Shares (as defined below) for an aggregate consideration equal
to the
Aggregate Buyback Amount (as defined below).
(b)
Definitions.
"Aggregate
BuybackAmount" means
the Initial
Investment Amount, less the
sum of (i)
the Interim Backstop Payment, (ii) proceeds to the Investor from any
sales of
any of the Total Shares prior to the One Year Anniversary Date, and (iii)
the
proceeds that would have been payable to the Investor pursuant to any
Rejected
Offer received by Investor prior to the One Year Anniversary Date and
not
accepted had, such Rejected Offer been accepted.
"Buyback
Shares" means the
Total Shares held by the Investor (together with its Affiliates) as of
the One
Year Anniversary Date, excluding any Rejected Shares.
"One
Year Market Value" means
the product of the arithmetic average of the Weighted Average Price for
the
Common Stock for the 20 Consecutive Business Days ending on the One Year
Anniversary Date, multiplied by the number of Buyback Shares.
(c)
Maximum
Payment Obligations. Notwithstanding anything in this
Agreement to the contrary, in no event shall Sellers be obligated under
the
Backstop Right or the Purchase Obligation to make payments in an amount
that
would cause the sum of (a) the Interim Backstop Payment plus (b) the
Aggregate
Buyback Amount less (c) the One Year Market Value, to exceed the Initial
Investment Amount less $1,000,000 (the "Maximum Payment
Obligation"). If such calculation would otherwise exceed the Maximum
Payment Obligation, then the Interim Backstop Payment and/or Aggregate
Buyback
Amount will be appropriately reduced.
4
(d)
Closing. The
closing of the Purchase Obligation shall take place no later than the
third
Business Day following the One Year Anniversary Date (the “Buyback
Closing”). At the closing of such transaction and upon payment of the
Aggregate Buyback Amount, the Investor shall, subject to Section 4 hereof,
(x)
if Echo’s transfer agent, if any, is participating in the Depository Trust
Company’s (“DTC”) Fast Automated Securities Transfer Program, credit the
aggregate number of Buyback Shares to the Sellers’ or their designee’s balance
accounts with DTC, if any, through its Deposit/Withdrawal at Custodian
system or
(y) if Echo’s transfer agent is not participating in the DTC Fast Automated
Securities Transfer Program or if the foregoing is not applicable, deliver
to
the Sellers or to one or more assignees or substitute purchasers designated
by
the Sellers, at the principal office of Echo, certificates representing
all the
Buyback Shares free and clear of all Liens, which certificates shall
have
affixed thereto stock powers in the appropriate form for
transfer. The Aggregate Buyback Amount for the Buyback Shares shall
be payable to the Investor in cash in U.S. dollars by delivery to the
Investor
of the amount thereof by wire transfer of immediately available funds
to an
account or accounts, designated in writing by the Investor prior to the
Buyback
Closing.
(e)
Adjustments. In
the event of changes in the outstanding Common Stock of Echo by reason
of stock
dividends, stock splits or other similar events, shall be correspondingly
adjusted to give the Investor, upon settlement of the Purchase Obligation,
the
same aggregate payment as the Investor would have been entitled to had
the
Purchase Obligation been settled immediately prior to such
event. This Agreement need not be changed or amended
because of any adjustment in the number, class, and kind of the Common
Stock.
4.
Conditions.
This
Agreement and the Backstop Right shall automatically terminate and become
null
and void if (i) the Investor (together with any assignees) does not utilize
its
reasonable best efforts to acquire at least 750,000 Purchased Shares
for a price
not to exceed $8.10 per share on or prior to the close of business on
the first
Business Day prior to the Special Meeting, (ii) Echo does not receive
the
requisite stockholder approval at the Special Meeting (or any adjournment
thereof) to consummate the Transaction, (iii) Echo does not consummate
the
Transaction, (iv) Investor does not fulfill in all material respects
its
obligations set forth in Section 7 below or (v) Investor breaches in
any
material respect the representations and warranties contained in Section
6
below.
5.
Representations
And Covenants Of Sellers. Sellers hereby jointly and severally
represent, warrant and covenant to the Investor, as follows:
(i)
Power;
Due Authorization; Binding Agreement. Sellers have full legal
capacity, power and authority to execute and deliver this Agreement,
to perform
their obligations hereunder, and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and
delivered by Sellers and constitutes a valid and binding agreement of
Sellers,
enforceable against Sellers in accordance with its terms, except that
enforceability may be subject to the effect of (a) any applicable bankruptcy,
reorganization, receivership, conservatorship, insolvency, moratorium
or other
similar laws affecting or relating to the enforcement of creditors’ rights
generally and to general principles of equity and (b) any laws relating
to the
availability of specific performance, injunctive relief, or other equitable
remedies, regardless of whether considered in a proceeding in law or
equity.
5
(ii)
No
Conflicts. The execution and delivery of this Agreement by
Sellers does not, and the performance of the terms of this Agreement
by Sellers
will not, (a) require Sellers to obtain the consent or approval of, or
make any
filing with or notification to, any governmental or regulatory authority,
domestic or foreign (other than the Securities and Exchange Commission
(the
“SEC”)), (b) require the consent or approval of any other Person pursuant
to any
agreement, obligation or instrument binding on Sellers or their properties
and
assets, (c) conflict with or violate any organizational document or law,
rule,
regulation, order, judgment or decree applicable to Sellers or by which
any
property or asset of Sellers is bound, or (d) violate any other agreement
to
which the Sellers are a party, including, without limitation, any voting
agreement, stockholders agreement, irrevocable proxy, voting trust, or
the Stock
Purchase Agreement.
(iii)
Other
Arrangements. If,
in the sole
discretion of the Investor, any other investor receives consideration
that is in
the aggregate more favorable to such other investor than the aggregate
consideration to the Investor contemplated hereby, the Investor shall
have the
option, to receive such other consideration on the same terms provided
to the
other Investor in lieu of the consideration granted hereby.
(iv)
Accredited
Investor. Each Seller is an “accredited investor”
as defined in Rule 501(a)(1), (2), (3), (7) or (8) promulgated
under the
Securities Act.
(v)
Disclosure.
The per share amount to be distributed to holders of Common Stock who
exercise
conversion rights in connection with the Transaction is not less than
$8.10. The financial information provided by Sellers to Investor
fairly presents the financial position of such Seller.
6.
Certain
Additional Covenants Of Sellers.
(a)
Further
Assurances. Subject to the terms and conditions set forth in
this Agreement, Sellers will use their best efforts, as promptly as is practicable, to
take or cause to be taken all
actions, and to do or cause to be done all other things, as are necessary,
proper or advisable and consistent with the terms and conditions of this
Agreement, to consummate and make effective the transactions contemplated
by
this Agreement and the letter from certain of the Sellers to Investor
dated as
of the date of this Agreement (the "Letter Agreement") to refrain
from taking any actions that are contrary to, inconsistent with or against,
or
would frustrate the essential purposes of, the transactions contemplated
by this
Agreement and the Letter Agreement.
(b)
Disclosure. Sellers
will advise Echo of the material terms and conditions of this Agreement
(and any
similar agreements entered into with any other Person) such that Echo
can
promptly publicly disclose the terms hereof (if Echo determines that
such
disclosure is appropriate) on one or more Current Reports on Form 8-K;
provided,
however, that Sellers
shall request that the identity of Investor, its affiliates, and/or their
principals, officers, directors, shareholders, agents, attorneys, consultants,
and the like not be disclosed (unless Echo determines that such disclosure
is
required).
6
(c)
Purchase
Volume Limits. Without the prior written consent of the
Investor, Sellers will not directly or indirectly, prior to the One Year
Anniversary Date, purchase Common Stock on any Business Day exceeding
15% of
daily trading volume for the Common Stock on the Principal Market on
such
day.
7.
Representations
And Warranties Of
Investor. Investor hereby represents and warrants to the
Sellers as follows.
(a)
Organization,
Good Standing And Qualification. Investor is duly organized
and validly existing under the laws of the state or other jurisdiction
of its
organization. Investor has all requisite power and authority to
execute and deliver this Agreement.
(b)
Ownership
Of Securities. As of the date of the Buyback Closing: (i) the
Total Shares to be sold will be beneficially owned by the Investor and
(ii) the
Investor shall have voting power and dispositive power with respect to
all of
the Buyback Shares held by it. On the date of the Buyback Closing,
the Investor shall transfer valid title to all of the Buyback Shares
to be
transferred hereby to Sellers free from all Liens, and the Buyback Shares
shall
be freely transferable to the Sellers except for restrictions on transfer
pursuant to state and/or federal securities laws.
(c)
Authorization;
Binding Obligations; Governmental Consents. All actions on the
part of Investor, its officers, directors and equity owners necessary
for the
authorization of this Agreement and the Letter Agreement performance
of all
obligations of Investor hereunder have been taken prior to the date
hereof. This Agreement is a valid and binding obligation of Investor,
enforceable in accordance with its terms, except as limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors’ rights generally; and (ii)
general principles of equity that restrict the availability of equitable
remedies. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with,
any
federal, state or local governmental authority on the part of Investor
is
required in connection with the consummation of the transactions contemplated
by
this Agreement (other than Form 3 and/or Form 4 filings or other SEC
filings).
(d)
No
Economic Xxxxxx. Between December 14, 2007, and the date
hereof, the Investor has not engaged, directly or indirectly, in any
Economic
Hedge with respect to the Common Stock.
8.
Conditions
To Backstop Rights. Investor agrees that the following shall
be conditions to its right to receive the Backstop Payments:
(a)
At the Special Meeting or any meeting of the stockholders of Echo, however
called, or any postponement or adjournment thereof, or in connection
with any
solicitation of votes of the stockholders of Echo by written consent,
Investor
shall not vote for any action or agreement that would have prevented
or
materially delayed the consummation of the Transaction or any other transactions
contemplated by this Agreement or the Merger Agreement, or that would
have been
contrary to or inconsistent with, or result in a breach by the Sellers
of, or
would have frustrated the essential purposes of this Agreement or the
Merger
Agreement. The Investor shall use its commercially reasonable efforts
to take
such actions as Sellers may reasonably request in order to assist the
brokers in
obtaining due authorization from any Person from whom the Investor acquired
the
Purchased Shares (the “Record Date Seller”) in favor of the Transaction Proposal
and the Merger Agreement and all other proposals submitted by Echo for
vote of
its stockholders relating to the Transaction.
7
(b)
Between the date hereof and the One Year Anniversary Date, the Investor
shall
not have engaged, directly or indirectly, in any Economic Hedge with
respect to
the Total Shares.
9.
Certain
Covenants Of
Investor.
(a)
The Investor agrees that any acquisition of Purchased Shares will be
made in
accordance with the provisions of this Agreement.
(b)
For so long as the Sellers have any payment obligations under this Agreement,
the Investor shall give the Sellers written notice (which may be by email)
of
any sales or transfers of Purchased Shares within five (5) Business Days
of such
sale or transfer, including the number of shares transferred and the
proceeds
therefrom.
(c)
Subject to the terms and conditions set forth in this Agreement, Investor
will
use its commercially reasonable efforts, as promptly as is practicable,
to take
or cause to be taken all actions, and to do or cause to be done all other
things, as are necessary, proper or advisable and consistent with the
terms and
conditions of this Agreement, to consummate and make effective the transactions
contemplated by this Agreement to refrain from taking any actions that
are
contrary to, inconsistent with or against, or would frustrate the essential
purposes of, the transactions contemplated by this Agreement.
(d)
Without the prior written consent of the Sellers’ Representative, the Investor
will not directly or indirectly, prior to the One Year Anniversary Date
sell
Common Stock exceeding 15% of the average trading volume on any Business
Day on
which the Weighted Average Price is less than $6.25 per share without
the
consent of the Sellers' Representative; provided, however
that if the
Investor (i) has given the Sellers' Representative written notice by
5:00 pm New
York Time on any Business Day offering to sell a specified percentage
of the
following Business Day's trading volume to Sellers at the following Business
Day's Weighted Average Price and (ii) the Sellers' Representative has
not
accepted such offer by 8:30 a.m. New York Time on the next Business Day
then the
Investor may sell up to the specified trading volume on such next Business
Day.
(e)
The Investor will not enter into any Economic Xxxxxx with respect to
the Total
Shares prior to the One Year Anniversary Date.
10.
Amendments. This
Agreement may be amended from time to time by a written instrument executed
and
delivered by the parties.
8
11.
Remedies. The
parties hereto agree and acknowledge that money damages may not be an
adequate
remedy for any breach of the provisions of this Agreement and that the
parties
will have the right to injunctive relief, in addition to all of its rights
and
remedies at law or in equity, to enforce the provisions of this
Agreement. Nothing contained in this Agreement will be construed to
confer upon any person who is not a signatory hereto or any successor
or
permitted assign of a signatory hereto any rights or benefits, as a third
party
beneficiary or otherwise.
12.
Investor
Substitution. Investor shall have the right to substitute any
other person or entity ("Person") as a purchaser or holder of the Total
Shares
hereunder, by written notice to the Sellers, which notice shall be signed
by
both the Investor and such Person, shall contain such Person’s agreement to be
bound by this Agreement and shall contain a confirmation by such Person
of the
accuracy with respect to it of the representation and warranties set
forth in
Section
7. Upon receipt of such notice, any reference to Investor in
this Agreement (other than in this Section 12),
shall be
deemed to refer to such Person in addition to or in lieu of the Investor
(as
applicable).
13.
General
Provisions.
(a)
Notices. Except
as otherwise provided herein, any offer, acceptance, notice or communication
required or permitted to be given pursuant to this Agreement shall be
deemed to
have been duly and sufficiently given for all purposes by a party if
given by
the party, or an officer, trustee, or other personal or legal representative
of
such party, or by any other person authorized to act for such party,
if in
writing and delivered personally to the party or to an officer, trustee
or other
personal or legal representative of the party, or any other person authorized
to
act for such party to whom such notice shall be directed, or sent by
overnight
delivery service, or certified or registered mail, postage and registration
prepaid, return receipt requested, or by facsimile to such party’s home or
business address as reflected on the signature pages hereto or other
address as
such party may designate to each of the other parties hereto by a notice
complying with the requirements of this Section 13(a). Any such
notice shall be deemed to have been given on the date on which the same
was
delivered in the case of personal delivery, post-marked in the case of
certified
or registered mail or overnight delivery service, or dated in the case
of a
facsimile.
(b)
Assignments
and Transfers. Other than as contemplated in Section
12, the
parties hereto shall have no right to assign or transfer this Agreement
or any
of their respective rights hereunder (including, without limitation,
the
Backstop Right).
(c)
Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns, personal representative, estates,
heirs and
legatees of the parties hereto.
9
(d)
Miscellaneous. This
Agreement and the Letter Agreement sets forth the entire understanding
of the
parties hereto with respect to the transactions contemplated
hereby. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term
or
provision hereof. The headings in this Agreement are for convenience
of reference only and shall not alter or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts
which together shall constitute one instrument and shall be governed
by and
construed in accordance with the domestic substantive laws of the State
of New
York, without regard to principles of conflicts of laws. Delivery of
an executed signature page by facsimile or other electronic transmission
shall
be effective as delivery of a manually signed counterpart of this
Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
10
IN
WITNESS WHEREOF, the parties have caused this Backstop Right Agreement
to be
executed and delivered by their duly authorized representatives as of
the date
first written above.
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SELLERS:
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WINDY
CITY, INC.
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By:
_______________________________
Xxxx Xxxxxx
Presdient
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___________________________________
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Xxxx
X. Xxxxxxxx
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___________________________________
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Xxxx
Xxxxxx
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CHICAGO
INVESTMENTS, INC.
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___________________________________
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By:
Xxxx Xxxxxx
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President
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[signatures
continued on following
page]
11
[signatures
continued from previous page]
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INVESTORS
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XXXXXX
BAY FUND, LP
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___________________________________
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By:
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