Exhibit 10.47
EXHIBIT XVII
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MARKETING SPECIALISTS CORPORATION
PREFERRED STOCK PURCHASE
AGREEMENT
DATED AS OF JANUARY 26, 2001
7,568 SHARES OF
SERIES B CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF PREFERRED STOCK..................................1
1.1. Authorization of Preferred Stock....................1
1.2. Purchase Price and Closing..........................1
1.3. Use of Proceeds.....................................2
1.4. Notes...............................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................2
2.1. Organization, Standing and Power....................2
2.2. Authority...........................................2
2.3. Enforceability......................................3
2.4. Valid Issuance......................................3
2.5. Capitalization......................................3
2.6. No Violation........................................3
2.7. Reports and Financial Statements....................4
2.8. Litigation..........................................4
2.9. Registration Rights Agreement.......................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.......................4
3.1. Authorization.......................................4
3.2. Purchase for Own Account............................4
3.3. Disclosure of Information...........................5
3.4. Investment Experience...............................5
3.5. Accredited Investor Status..........................5
3.6. Restricted Securities...............................5
3.7. Governmental Consents...............................5
3.8. Further Limitations on Disposition..................5
3.9. Legends.............................................6
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS...................6
4.1. Representations and Warranties......................6
4.2 Consents............................................6
5. DEFINITIONS...........................................................7
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6. INDEMNIFICATION.......................................................8
6.1. General Indemnity...................................8
6.2. Indemnification Procedure...........................8
6.3. Indemnification Limitations.........................9
7. MISCELLANEOUS.........................................................9
7.1. No Waiver; Cumulative Remedies......................9
7.2. HSR.................................................9
7.3. Amendments, Waivers and Consents....................9
7.4. Notices............................................10
7.5. Binding Effect; Assignment.........................11
7.6. Survival of Representations and Warranties.........11
7.7. Severability.......................................11
7.8. Governing Law......................................11
7.9. Headings...........................................11
7.10. Counterparts.......................................11
7.11. Closing Condition Waivers..........................11
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PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is dated this
26th day of January 2001, by and between Marketing Specialists Corporation, a
Delaware corporation (the "Company"), and MS Acquisition Limited, a Texas
limited partnership (the "Purchaser").
PRELIMINARY STATEMENTS
A. The Purchaser is a stockholder of the Company and is the holder of a
certain promissory note, dated November 7, 2000, signed by the Company, in the
amount of $2,500,000 (the "Promissory Note"). The Promissory Note has accrued
interest as of the date hereof in the amount of $67,962.20.
B. The Purchaser desires to return the Promissory Note to the Company in
consideration of the purchase of shares of the Company's 8.0% Series B
Convertible Paid-In-Kind Preferred Stock, $0.01 par value, (the "Preferred
Stock"), directly from the Company, subject to the terms and conditions set
forth herein.
C. The Purchaser also desires to purchase additional shares of Preferred
Stock for cash in the amount of $5,000,037.80, directly from the Company,
subject to the terms and conditions set forth herein.
D. The Company desires to sell shares of Preferred Stock to the Purchaser,
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
STATEMENT OF AGREEMENT
1. PURCHASE AND SALE OF PREFERRED STOCK
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1 1. AUTHORIZATION OF PREFERRED STOCK. The Company has authorized the
issuance and sale of 7,568 shares (the "Shares") of its authorized but unissued
shares of the Preferred Stock, having the rights set forth in the Certificate of
Incorporation of the Company.
1.2. PURCHASE PRICE AND CLOSING. The Company agrees to issue and sell to
the Purchaser, and in consideration of, and in express reliance upon, the
representations, warranties, terms and conditions contained in this Agreement,
the Purchaser agrees to purchase the Shares at a purchase price of $1,000 per
share, for an aggregate purchase price of $7,568,000 (the "Purchase Price").
Subject to the terms and conditions contained herein, the closing of the
purchase and sale of the Shares to be acquired by the Purchaser from the Company
under this Agreement (the "Closing") shall take place promptly upon satisfaction
of all the conditions contained in Section 4 of this Agreement shall have been
satisfied or waived, or at such other time and date as the Purchaser and the
Company may agree (the "Closing Date"), at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Four Times Square, Xxx Xxxx, XX 00000, or such other
location as the parties mutually agree. At the Closing, the Company will deliver
to the Purchaser a certificate of the Secretary or an Assistant Secretary of the
Company, dated the Closing Date, (a) attesting to corporate action taken by the
Company, including resolutions of the Board of Directors authorizing (i) the
execution, delivery and performance by the Company of this Agreement and (ii)
the issuance of the Shares, and (b) verifying that the Certificate of
Incorporation of the Company and the Bylaws of the Company currently on file
with the Commission are true, correct and complete as of the Closing Date. As
soon as practicable after the closing, but in any event not later than seven
business days, the Company will deliver to the Purchaser certificates evidencing
the Shares to be purchased by the Purchaser hereunder. At or before the Closing,
in full satisfaction of the Purchase Price, Purchaser shall deliver to the
Company (i) the Promissory Note and (ii) $5,000,037.80 by wire transfer of
immediately available funds.
1.3. USE OF PROCEEDS. The Company shall use the cash proceeds from the sale
of the Shares for general corporate purposes including, without limitation,
working capital.
1.4. NOTES. Upon delivery to the Purchaser of the certificates evidencing
the Shares, the Promissory Notes shall be fully paid and the Company shall have
no further obligations thereunder.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
2.1. ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite power and authority to own or lease its
properties and to carry on its business as presently conducted. There is no
pending or, to the Company's knowledge, threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of the Company. The
Company's operating subsidiaries are entities duly organized, validly existing
and in good standing under the laws of each such subsidiary's state of
organization, and each has the requisite power and authority to own or lease its
properties and to carry on its business as presently conducted. There is no
pending or, to the Company's knowledge, threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of any of the Company's
operating subsidiaries.
2.2. AUTHORITY. The Company has all requisite corporate power and authority
to enter into this Agreement, to issue and sell the Shares and to carry out its
obligations hereunder. The issuance and sale of the Shares by the Company to the
Purchaser has been unanimously approved by an independent committee of the Board
of Directors of the Company.
2.3. ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Company and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except as the same may be
limited by the terms of this Agreement or by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
2.4. VALID ISSUANCE. Upon consummation of the transactions contemplated
hereby and the issuance and delivery of certificates representing the Shares to
the Purchaser, the Shares will be validly issued, fully paid, non-assessable
and, except as created by Purchaser, free of preemptive rights or similar rights
of stockholders of the Company and free and clear of any liens or other
encumbrance.
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2.5. CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company consists of 50,000,000 shares of Common Stock, 4,000,000
shares of Restricted Common Stock and 1,000,000 shares of preferred stock. As of
November 13, 2000, (i) 25,912,809 shares of Common Stock and 72,736 shares of
Restricted Common Stock were validly issued and outstanding, fully paid and
non-assessable, (ii) no shares of Series A 8.0% Convertible Paid-In-Kind
Preferred Stock were issued and outstanding, and (iii) 12,397 shares of the
Preferred Stock were issued and outstanding.
2.6. NO VIOLATION. The execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder and the
consummation by the Company of the transactions contemplated by this Agreement
will not (a) contravene any provision of the Certificate of Incorporation or
Bylaws of the Company, (b) violate or conflict with any material law, statute,
ordinance, rule, regulation, decree, writ, injunction, judgment, ruling or order
of any governmental authority or of any arbitration award which is either
applicable to, binding upon, or enforceable against the Company, (c) conflict
with, result in any breach of, or constitute a default under, or give rise to a
right to terminate, amend, modify, abandon or accelerate, any material agreement
which is applicable to, binding upon or enforceable against the Company, (d)
result in or require the creation or imposition of any lien or other encumbrance
upon or with respect to any of the material property or assets of the Company,
(e) give to any individual or entity a right or claim against the Company, which
would have a Material Adverse Effect on the Company; or (f) require the consent,
approval, authorization or permit of, or filing with or notification to, any
governmental authority, any court or tribunal or any other person, except (i) to
the extent necessary, consents under (A) the Second Amended and Restated Credit
Agreement dated March 30, 2000, as amended, among the Company, the lenders set
forth on Schedule 1 thereto and First Union National Bank as agent for the
lenders, and (B) the Credit Agreement dated March 30, 2000 , as amended, among
the Company and certain of its subsidiaries, as borrowers, the lenders named
therein and The Chase Manhattan Bank, as Agent which such consents have been
obtained, (ii) pursuant to the Exchange Act and the Securities Act and
applicable inclusion requirements of any stock exchange on which the Common
Stock is listed, (iii) filings required under the securities or blue sky laws of
the various states or (iv) filings required under the HSR Act, if any
(collectively, "Required Consents").
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2.7. REPORTS AND FINANCIAL STATEMENTS. From January 1, 1997 to the date
hereof, except where failure to have done so did not and would not have a
Material Adverse Effect on the Company, the Company (including any predecessor
entities) has filed all reports, registrations and statements, together with any
required amendments thereto, that it was required to file with the Commission,
including, but not limited to, Forms 10-K, Forms 10-Q, Forms 8-K and proxy
statements (collectively, the "Company Reports"), copies of all of which have
been delivered to the Purchaser. As of their respective dates (but taking into
account any amendments filed prior to the date of this Agreement), the Company
Reports complied in all material respects with all the rules and regulations
promulgated by the Commission and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
2.8. LITIGATION. With the exception of XXXXX X. XXXXXXXX, C.A. No.
18099-NC, XXXXXX X. XXXX, C.A. No. 18103-NC, and XXXX X. XXXXXXXX, C.A. No.
18135-NC, there is no action, suit or other legal or administrative proceeding
or governmental investigation pending, or, to the knowledge of the Company,
threatened, anticipated or contemplated against, by or affecting the Company
which questions the validity or enforceability of this Agreement or the
Registration Rights Agreement or the transactions contemplated hereby or
thereby.
2.9. REGISTRATION RIGHTS AGREEMENT. The Company acknowledges and agrees
that the Common Stock issuable upon conversion of the Shares will be eligible
for registration pursuant to the terms of the Registration Rights Agreement by
and among the Purchaser, the Company and certain other parties thereto.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as follows:
3.1. AUTHORIZATION. This Agreement constitutes the Purchaser's valid and
legally binding obligation, enforceable in accordance with its terms except as
may be limited by (a) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally, and (b) the effect of rules of law governing the
availability of equitable remedies. The Purchaser represents that the Purchaser
has full power and authority to enter into this Agreement.
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3.2. PURCHASE FOR OWN ACCOUNT. The Shares to be purchased by the Purchaser
hereunder shall be acquired for investment for the Purchaser's own account, not
as a nominee or agent, and not with a view to the public resale or distribution
thereof, and the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Purchaser represents
that the Purchaser has not been formed for the specific purpose of acquiring the
Shares.
3.3. DISCLOSURE OF INFORMATION. The Purchaser has received or has had full
access to all the information it considers necessary or appropriate to make an
informed investment decision with respect to the Shares to be purchased under
this Agreement. The Purchaser further has had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
offering of the Shares and to obtain additional information (to the extent the
Company possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to the
Purchaser or to which the Purchaser had access.
3.4. INVESTMENT EXPERIENCE. The Purchaser understands that the purchase of
the Shares involves substantial risk. The Purchaser acknowledges that the
Purchaser is able to fend for itself, can bear the economic risk of the
Purchaser's investment in the Shares and has such knowledge and experience in
financial or business matters that the Purchaser is capable of evaluating the
merits and risks of this investment in the Shares and protecting its own
interests in connection with this investment.
3.5. ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited investor"
within the meaning of Regulation D promulgated under the Securities Act.
3.6. RESTRICTED SECURITIES. The Purchaser understands that the Shares are
characterized as "restricted securities" under the Securities Act inasmuch as
they are being acquired from the Company in a transaction not involving a public
offering and that under the Securities Act and applicable regulations thereunder
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. Further, the Purchaser represents that the
Purchaser is familiar with Rule 144 of the Commission, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act. The Purchaser understands
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that the Company is under no obligation to register any of the securities sold
hereunder except as provided in the Registration Rights Agreement.
3.7. GOVERNMENTAL CONSENTS. No filings are required to be made, or consents
to be obtained, from any governmental authority to consummate the transactions
contemplated hereby, including the filing of any notification required under the
HSR Act.
3.8. FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) the Purchaser shall have furnished the Company at the expense of
the Purchaser or its transferee, with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require
registration of such securities under the Securities Act or is in
compliance with Rule 144 of the Securities Act.
Notwithstanding the provisions of subparagraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required for any transfer
of Shares to (A) a partner of the Purchaser, (B) a retired partner of the
Purchaser who retires after the date hereof, or (C) the estate of any such
partner; provided that in each of the foregoing cases the transferee agrees in
writing to be subject to the terms of this Section 3 to the same extent as if
the transferee were an original purchaser hereunder.
3.9. LEGENDS. It is understood that the certificates evidencing the Shares
will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT, OR THE COMPANY
HAS RECEIVED AN OPINION
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OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO IT AND ITS COUNSEL, THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
(b) Any legend imposed or required by the applicable state securities laws,
the Registration Rights Agreement or any other ancillary agreement.
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to purchase the Shares is subject to the
satisfaction by the Company, or waiver by the Purchaser, on or prior to the
Closing Date, of the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Company set forth in this Agreement that is qualified as to
Material Adverse Effect or materiality shall be true and correct, and each of
the representations and warranties of the Company set forth in this Agreement
not so qualified shall be true and correct in all material respects, in each
case as of the date of this Agreement and as of the Closing Date as though made
on and as of the Closing Date (except to the extent in either case that such
representations and warranties speak as of another date).
4.2. CONSENTS. The Company shall have obtained all necessary consents to
the transactions contemplated by this Agreement under each of (a) the Second
Amended and Restated Credit Agreement dated March 30, 2000, among the Company,
the lenders set forth on Schedule 1 thereto and First Union National Bank as
agent for the lenders, and (b) the Credit Agreement dated March 30, 2000 among
the Company and certain of its subsidiaries, as borrowers, the lenders named
therein and The Chase Manhattan Bank, as Agent.
5. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
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"Agreement" means this Preferred Stock Purchase Agreement, including all
amendments, modifications and supplements thereto.
"Closing" shall have the meaning assigned to such term in Section 1.2.
"Closing Date" shall have the meaning assigned to such term in Section 1.2.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the common stock of the Company, par value $.01
per share.
"Company" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"Indemnified Party" shall have the meaning assigned to such term in Section
6.2.
"Material Adverse Effect" means any material adverse effect on (a) the
business, assets, operations or financial condition of the Company and its
subsidiaries, taken as a whole, (b) the ability of the Company to perform its
obligations under this Agreement or the Registration Rights Agreement or (c) the
binding nature, validity or enforceability of this Agreement or the Registration
Rights Agreement.
"Purchaser" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Registration Rights Agreement" means the Registration Rights Agreement for
the RMSI Stockholders, dated as of August 18, 1999, by and among the Company,
the Purchaser and the other parties thereto.
"Securities Act" means the Securities Act of 1933, as amended.
9
"Shares" shall have the meaning assigned to such term in Section 1.1.
6. INDEMNIFICATION
6.1. GENERAL INDEMNITY. The Company agrees to indemnify and save harmless
the Purchaser and its directors, officers, affiliates, successors and assigns
from and against any and all losses, liabilities, deficiencies, costs, damages
and expenses (including, without limitation, reasonable attorneys' fees, charges
and disbursements) incurred by the Purchaser as a result of any inaccuracy in or
breach of the representations, warranties or covenants made by the Company in
this Agreement. The Purchaser agrees to indemnify and save harmless the Company
and its directors, officers, affiliates, successors and assigns from and against
any and all losses, liabilities, deficiencies, costs, damages and expenses
(including, without limitation, reasonable attorneys' fees, charges and
disbursements) incurred by the Company as a result of any inaccuracy in or
breach of the representations, warranties or covenants made by the Purchaser
herein.
6.2. INDEMNIFICATION PROCEDURE. Any party entitled to indemnification under
this Section 6 (an "Indemnified Party") will give written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
promptly after the discovery by such party of any matters giving rise to a claim
for indemnification; provided that the failure of any party entitled to
indemnification hereunder to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Section 6 except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any action, proceeding or claim is brought against an
Indemnified Party in respect of which indemnification is sought hereunder, the
indemnifying party shall be entitled to participate in and, unless in the
reasonable judgment of the Indemnified Party a conflict of interest between it
and the indemnifying party may exist in respect of such action, proceeding or
claim, to assume the defense thereof, with counsel reasonably satisfactory to
the Indemnified Party. In the event that the indemnifying party advises an
Indemnified Party that it will contest such a claim for indemnification
hereunder, or fails, within thirty (30) days of receipt of any indemnification
notice to notify, in writing, such person of its election to defend, settle or
compromise, at its sole cost and expense, any action, proceeding or claim (or
discontinues its defense at any time after it commences such defense), then the
Indemnified Party may, at its
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option, defend, settle or otherwise compromise or pay such action, proceeding or
claim. In any event, unless and until the indemnifying party elects in writing
to assume and does so assume the defense of any such claim, proceeding or
action, the Indemnified Party's costs and expenses arising out of the defense,
settlement or compromise of any such action, proceeding, claim or proceeding
shall be losses subject to indemnification hereunder. The Indemnified Party
shall cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action, proceeding or claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party which relates to such action,
proceeding or claim. The indemnifying party shall keep the Indemnified Party
fully informed at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the indemnifying party elects to defend
any such action, proceeding or claim, then the Indemnified Party shall be
entitled to participate in such defense with counsel of its choice at its sole
cost and expense. The indemnifying party shall not be liable for any settlement
of any action, claim or proceeding effected without its written consent,
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. Anything in this Section 6 to the contrary
notwithstanding, the indemnifying party shall not, without the Indemnified
Party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof which imposes any future obligation on
the Indemnified Party or which does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the Indemnified Party, a
release from all liability in respect of such claim, proceeding or action. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred. The
indemnity agreements contained herein shall be in addition to (a) any cause of
action or similar right of the Indemnified Party against the indemnifying party
or others, and (b) any liabilities the indemnifying party may be subject to
pursuant to the law.
6.3. INDEMNIFICATION LIMITATIONS. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to make claims under Section 6.1 hereof only
to the extent that the aggregate amount of losses arising from such claims does
not exceed $7,568,000. Nothing contained in this Section 6.3 shall be construed
to limit the indemnification obligations of the Company afforded to any holder
of Shares under the Registration Rights Agreement afforded to any director or
officer of the Company under its organizational documents, state law or
otherwise.
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70 MISCELLANEOUS
7.1. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy thereunder. The remedies
therein provided are cumulative and not exclusive of any remedies provided by
law.
7.2. HSR. If required by applicable law, each of the Purchaser and the
Company agree to cooperate in the preparation of, and file, any required
notification form pursuant to the HSR Act with respect to the acquisition by the
Purchaser of shares of the Company's Common Stock issuable to the Purchaser upon
conversion of the Preferred Stock.
7.3. AMENDMENTS, WAIVERS AND CONSENTS. Any provisions in this Agreement
to the contrary notwithstanding, and except as hereinafter provided, changes in,
termination or amendments of or additions to this Agreement may be made, and
compliance with any provision set forth herein may be omitted or waived, if the
Company shall obtain consent thereto in writing from the Purchaser. Any waiver
or consent may be given subject to satisfaction of conditions stated therein and
any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
7.4. NOTICES. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed by
prepaid first class mail, return receipt requested, or mailed by overnight
courier prepaid to the parties at the following addresses or facsimile numbers.
To the Company: Marketing Specialists Corporation
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile Number: 000-000-0000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
00
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile Number: 214-969-4343
To the Purchaser: MS Acquisition Limited
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 7.4 be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.4 be deemed given upon successful transmission, (iii)
if delivered by mail in the manner described above to the address as provided in
this Section 7.4 be deemed given upon the earlier of the third business day
following mailing or upon receipt and (iv) if delivered by overnight courier to
the address as provided in this Section 7.4 be deemed given on the earlier of
the first business day following the date sent by such overnight courier or upon
receipt. Any party from time to time may change its address, facsimile number or
other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
7.5. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of each of the Company and the Purchaser and their
respective heirs, successors and assigns, except that the Company shall not have
the right to delegate its obligations hereunder.
7.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement, or any other instrument or document delivered
in
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connection herewith, shall survive the execution and delivery hereof or
thereof for a period of 12 months after the date hereof.
7.7. SEVERABILITY. The provisions of this Agreement and the terms of the
Shares are severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of a provision
contained in this Agreement or the terms of the Shares shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement or the terms of the Shares, but this Agreement and
the terms of the Shares shall be reformed and construed as if such invalid or
illegal or unenforceable provision, or part of a provision, had never been
contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
7.8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
7.9. HEADINGS. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
7.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each or which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.11. CLOSING CONDITION WAIVERS. At any time prior to the Closing Date, any
party hereto may (a) extend the time for the performance of any of the
obligations or other acts of any other party hereto, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, and (c) waive compliance with any of the agreements
or conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party granting such waiver but such waiver or failure
to insist upon strict compliance
14
with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or future failure.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
MARKETING SPECIALISTS
CORPORATION
By:
-----------------------------------------
Name: Title:
MS ACQUISITION LIMITED
By: MSSC Acquisition Corp., its General Partner
By: /S/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO PREFERRED STOCK PURCHASE AGREEMENT]
