Exhibit 10.48
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of June 29, 1998
between HA-LO INDUSTRIES, INC., an Illinois corporation ("HA-LO"), and
XXXXXXXXXX XXXX & CO. INCORPORATED, an Illinois corporation ("Xxxxxxxxxx Xxxx").
RECITALS
X. Xxxxxxxxxx Xxxx and HA-LO are parties to that certain Exclusive
Premium Purchasing Agreement, dated January 11, 1995, as amended by a First
Amendment, dated December 27, 1995
(collectively, the "Purchasing Agreement").
B. Pursuant to two Warrants, each dated January 10, 1996 (collectively,
the "Warrants"), HA-LO granted to Xxxxxxxxxx Xxxx the right to purchase an
aggregate of 518,917 shares (preadjustment) of HA-LO's Common Stock, no par
value (the "Warrant Shares"), on specified terms and conditions.
C. On July 7, 1997, Xxxxxxxxxx Xxxx filed voluntary petitions for
relief under Chapter 11 of Title XI of the United States Code (the "Bankruptcy
Proceeding").
D. HA-LO has certain pre-petition claims in the Bankruptcy Proceeding
(collectively, the "Pre-Petition Claim").
X. Xxxxxxxxxx Xxxx and HA-LO desire to amend the Purchasing Agreement
and the Warrants in certain respects, to cause the Pre- Petition Claim to be
satisfied and withdrawn and to memorialize certain other agreements between
them, all as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. SATISFACTION OF PRE-PETITION CLAIM. At the Closing (as such term is
defined in Section 6), Xxxxxxxxxx Xxxx shall pay $2,500,000 (the "Satisfaction
Amount") to HA-LO in satisfaction of the Pre-Petition Claim and in consideration
of the other agreements and covenants of HA-LO contained herein. The
Satisfaction Amount shall be payable by wire transfer of immediately available
funds to an account designated in writing by HA-LO. Promptly upon receipt of the
Satisfaction Amount, HA-LO shall file any and all documents that may be
reasonably required in order to waive and/or withdraw the Pre-Petition Claim.
2. AMENDMENT TO PURCHASING AGREEMENT. At the Closing, Xxxxxxxxxx Xxxx
and HA-LO shall each execute and deliver an amendment to the Purchasing
Agreement in the form attached hereto as Exhibit A (the "Amendment to Purchasing
Agreement").
3. AMENDMENTS TO WARRANTS. At the Closing, HA-LO shall execute and
deliver to Xxxxxxxxxx Xxxx amendments to the Warrants in the forms attached
hereto as Exhibits B and C (the "Amendments to Warrants").
4. REGISTRATION OF THE WARRANT SHARES. Promptly upon payment of the
Satisfaction Amount, HA-LO shall use all reasonable efforts to effect the
registration of the Warrant Shares under the Securities Act of 1933 (the
"Securities Act") by performing the following:
(a) The registration shall be effective through an S-3
Registration Statement (or such other applicable form) ("Registration
Statement") covering the Warrant Shares and filed with the Securities
and Exchange Commission ("Commission"). HA-LO shall cause each
Registration Statement to become and remain effective for a period of
five (5) years from the effectiveness thereof.
(b) HA-LO shall identify and cause there to be provided at all
times to the Holders (as such term is defined in the Warrants) a
transfer agent for all of the Warrants Shares required to be registered
under this Agreement.
(c) HA-LO shall provide, or cause there to be provided, such
certificates, instruments and any other documents required under the
Securities Act requested by the Commission in connection with the sale
by any Holder of Warrant Shares covered by a Registration Statement or
otherwise necessary or reasonably required in connection with or to
facilitate the sale of Warrant Shares in accordance with this
Agreement.
(d) HA-LO shall file with the appropriate stock exchange or
trading system a notification form for the listing of additional shares
with respect to the Warrant Shares at the time and in the manner
required by such exchange.
(e) HA-LO shall prepare and file with the Commission such
required amendments and supplements to the Registration Statement as
may be necessary to update and keep such Registration Statement
effective and to comply with the provisions of the Securities Act with
respect to the sale of the Warrant Shares; provided, however, that
nothing herein shall require HA-LO to disclose any confidential
information concerning its business, results of operations or
contemplated activities not otherwise required to be disclosed so long
as the period of time during which updating is required in order to
permit sale of Warrant Shares but not effected shall not exceed 90 days
in any calendar year.
(f) All expenses incurred by HA-LO and effecting the
registration pursuant to this Agreement, including without
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limitation all registration and filing fees with any governmental
entity, printing expenses and fees and disbursements of counsel for
HA-LO shall be paid by and be the sole obligation of HA-LO. All selling
commissions applicable to sales of Warrant Shares and all fees and
disbursements of counsel of a Holder in connection therewith or
otherwise shall be paid by and be the sole obligation of the applicable
Holder.
(g) To the extent necessary, each Holder shall timely furnish
such information as may be reasonably requested by HA-LO for inclusion
and/or necessary to the preparation of a Registration Statement or
other filing ancillary thereto. The information supplied by such Holder
for inclusion in the Registration Statement shall not, at the time of
such Registration Statement is declared effective, contain any untrue
statement of material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(h) The information supplied by HA-LO for inclusion in the
Registration Statement shall not, at the time such Registration
Statement is declared effective, contain any untrue statement of
material fact supplied by HA-LO or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading.
(i) To the extent required by the Rule and Regulations of the
Commission, the Holders hereby consent to the use of their respective
names in any Registration Statement prepared by HA-LO.
5. MATTERS PERTAINING TO THE BANKRUPTCY PROCEEDING.
(a) Prior to the execution of this Agreement, Xxxxxxxxxx Xxxx
shall have obtained Bankruptcy Court Approval of the Agreement and the
transactions contemplated hereby (the "Approval"), and take all actions
reasonably necessary to expedite receipt thereof.
(b) Xxxxxxxxxx Xxxx shall have made any and all filings with
the Bankruptcy Court as may be reasonably required for Xxxxxxxxxx Xxxx
to assume the Purchasing Agreement, it being agreed and understood that
such assumption shall be a condition to Closing.
6. CLOSING. For purposes of this Agreement, the "Closing" of the
transactions contemplated hereby shall occur within ten (10) business days
following the Approval (which Approval shall be evidenced by an order of the
Bankruptcy Court which is both final
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and not subject to appeal) shall have been received. Xxxxxxxxxx Xxxx and HA-LO
each agree and acknowledge, effective as of the Closing, that no breach by the
other will be deemed to exist (and that no state of affairs will be deemed to
exist which, with the passage of time, the giving of notice or both, would
constitute a breach) under the Purchasing Agreement (as amended by the Amendment
to Purchasing Agreement), all such breaches and potential breaches, if any,
being deemed to have been either cured or waived without any additional action
on the part of either of the parties.
7. ENTIRE AGREEMENT. This Agreement, together with the Exhibits hereto,
set forth the entire understanding of the parties hereto and supersedes all
prior oral or written agreements between them relative to the subject matter
hereof, and merge all prior and contemporaneous discussion between them.
8. MODIFICATION. The parties to this Agreement may, by a
written instrument executed by both of them, amend, modify or
supplement this Agreement.
9. FURTHER ASSURANCES. Each of the parties hereto will, at any time and
from time to time after the Closing, upon the request of the other party, do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, all such further acts, deeds instruments and documents as may be
reasonably required for the consummation of the transactions contemplated
hereby.
10. WAIVER OF PROVISIONS. The terms, covenants and conditions of this
Agreement may be waived only by a written instrument executed by the party
waiving compliance. The failure by either party at any time to require
performance of any provisions hereof shall, in no manner, affect the right at a
later date to enforce the same.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12. LAW TO GOVERN. The validity, construction and enforceability of
this Agreement shall be governed in all respects by the laws of the State of
Illinois, without regard to its conflict of law rules.
13. JURISDICTION AND VENUE. The parties hereto agree that all actions
or proceedings initiated by any party hereto and arising directly or indirectly
out of this Agreement which are brought pursuant to judicial proceedings shall
be litigated in the United States Bankruptcy Court for the District of Delaware,
or in the event that the bankruptcy case for Xxxxxxxxxx Xxxx has been closed or
such court cannot or will not exercise jurisdiction, then in the United States
District Court for the Northern District of Illinois, or in the event that such
court cannot or will not
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exercise jurisdiction, then in the Circuit Court in and for the County of Xxxx,
Illinois. The parties hereto expressly submit and consent in advance to such
jurisdiction and agree that service of summons and complaint or other process or
papers may be made by registered or certified mail addressed to the relevant
party at the address to which notices are to be sent pursuant to Section 14 of
this Agreement. The parties hereto waive any objection that any of the foregoing
jurisdictions is an inconvenient forum or an improper forum based on lack of
venue.
14. NOTICES AND OTHER COMMUNICATIONS. Every notice or other
communication required, contemplated or permitted by this Agreement by any party
shall be in writing and shall be delivered by personal delivery, confirmed
telecopy, private courier service or postage pre-paid, returned receipt
requested, certified mail, addressed to the party to whom intended at the
following address:
(a) If to HA-LO: HA-LO Industries, Inc.
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: 000-000-0000
With a copy to:
Xxxx, Gerber & Xxxxxxxxx
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: 000-000-0000
(b) If to Xxxxxxxxxx
Xxxx: Xxxxxxxxxx Xxxx & Co. Incorporated
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telecopy: 000-000-0000
With a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telecopy: 000-000-0000
or at such other address as the intended recipient previously shall have
designated by written notice.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an
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original instrument, but all such separate counterparts shall
constitute one in the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date set forth above.
XXXXXXXXXX XXXX & CO. INCORPORATED
By:
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Its:
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HA-LO INDUSTRIES, INC.
By:
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Its:
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EXHIBIT INDEX
A. Second Amendment to Exclusive Premium Purchasing Agreement.
B. Amendment to Warrant covering 345,946 shares of Common Stock of HA-LO.
C. Amendment to Warrant covering 172,971 shares of Common Stock of HA-LO.
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