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Exhibit 10.70
STOCK RESALE AGREEMENT
THIS STOCK RESALE AGREEMENT (the "Agreement"), dated as of August 26,
1997, is by and among International Post Limited, a Delaware corporation
("IPL"), Xxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx"), Xxxxxx X. Xxxx ("Xxxx") and Xxxxxx
X. Xxxxxxxx ("Xxxxxxxx") (each, a "Stockholder" and collectively, the
"Stockholders"). Any reference herein to any Stockholder shall be deemed to also
include a reference to the heirs, estate and personal representatives of such
Stockholder. Unless otherwise indicated herein: (i) each capitalized term used
herein shall have the meaning attributed to it in the glossary set forth in
Section 23 hereof; and (ii) each capitalized term used herein but not defined
herein shall have the meaning attributed to it in the Merger Agreement.
W I T N E S S E T H:
WHEREAS IPL, the Stockholders, and Video Services Corporation, a New
Jersey corporation ("Video"), are parties to an Agreement and Plan of Merger,
dated as of June 27, 1997 (the "Merger Agreement"), pursuant to which, inter
alia, Video shall be merged (the "Merger") with and into IPL and shares of Video
Common Stock, shall be converted into the right to receive a number of shares of
IPL Common Stock; and
WHEREAS, IPL and each of the Stockholders desire to make certain
representations, covenants and agreements in connection with the shares of IPL
Common Stock to be received by the Stockholders pursuant to the Merger (the
"Shares").
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. General Restriction on Transfers of Common Stock. No Stockholder shall,
prior to the expiration of six (6) months after the Effective Time, Transfer any
Shares except in accordance with the terms and provisions of this Agreement. The
provisions set forth in Sections 2 through 8 hereof: (i) represent independent
rights of the Stockholders to engage in a Transfer of Shares and the fact that
any such Transfer cannot be completed pursuant to one such provision shall not
be deemed to limit or restrict any Transfer so long as the same may be completed
in compliance with the terms of another provision of this Agreement; and (ii)
represent exceptions to the general six (6) month restriction and shall have no
further application after
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the expiration of such six (6) month period. Any purported Transfer in violation
of this Agreement shall be null and void and of no force and effect and the
purported transferees shall have no rights or privileges in or with respect to
the Shares purported to have been so transferred. IPL shall refuse to recognize
any such Transfer and shall not reflect on its records any change in record
ownership of such Shares purported to have been so transferred.
The terms and provisions of this Agreement shall be applicable to all of the
Shares now or hereafter owned by any Stockholder and by any Permitted
Transferee.
2. Losses Escrow Agreement. The Stockholders shall deposit the Deposited
Shares in accordance with the Losses Escrow Agreement and may, from time to
time, engage in substitution of and for, Shares, in accordance with the terms
thereof.
3. Management Options. The Stockholders may grant to any or all of the
employees of or consultants to, Video or IPL or their respective subsidiaries
immediately prior to the Merger, options (the "Management Options") to purchase
up to 721,529 Shares (including the grants contemplated in Section 4 below). and
may sell the Shares underlying the Management Options to the holders of the
Management Options upon the exercise thereof; provided, however, that any such
grant shall be and may be, made in accordance with Section 7.7 of the Merger
Agreement or pursuant to Section 4 below.
4. New Options. The Stockholders shall grant New Options to Xx. Xxxxxxxx
X. Xxxxx and Xx. Xxxxxxx X. Xxxxxx and may sell the Shares underlying the New
Options to such individuals upon their exercise of the New Options.
5. Permitted Transfers. Each of the Stockholders may Transfer any or all
of its Shares to any Permitted Transferee, provided that such Permitted
Transferee agrees in writing to be bound by the provisions set forth in this
Agreement.
6. Tax Sales by Siracusano. Siracusano may sell Shares as required in
order to discharge (after taking into account applicable transaction costs) up
to $300,000 of any obligation for Taxes resulting from the Merger or any
transaction contemplated pursuant to the Merger Agreement including, without
limitation, the Spin-Off Transaction, the Contribution Agreement, and related
transactions (and any additional sales as may be required to discharge any tax
liability arising from such sales and additional sales) as follows: (A) in a
public or private sale; (B) pursuant to Rule 144 of the Securities Act of 1933,
as amended; (C) pursuant to the Registration Statement; or (D)
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pursuant to the Registration Rights Agreement in accordance with the terms
thereof.
7. Permitted Transfer. The Stockholders may Transfer Shares to the extent
that such Transfer does not reduce the collective ownership of Shares by the
Stockholders and their Permitted Transferees below 50.1% of the outstanding
number of shares of IPL Common Stock at the time of such Transfer.
8. Other Sales. Each of the Stockholders may sell any or all of his Shares
in a transaction provided that each such sale is in compliance with the
provisions of the Tag-Along Rights Agreement.
9. Restrictive Stock Legend. IPL will cause each certificate of any
Stockholder evidencing the Shares outstanding during the period the restriction
set forth in Section 1 is in effect to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF AN AGREEMENT DATED AUGUST 26, 1997, AS IT MAY BE
AMENDED, AMONG INTERNATIONAL POST LIMITED, XXXXX X. XXXXXXXXXX, XXXXXX X.
XXXX AND XXXXXX X. XXXXXXXX, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF VIDEO SERVICES CORPORATION.
Upon the expiration of the period during which the provisions of Section 1 are
in effect or in the event that the Shares otherwise cease to be subject to the
restrictions on transfer set forth in this Agreement, IPL shall, upon the
written request of the Stockholder, issue to the Stockholder a new certificate
evidencing such shares without the legend required by this Section 9. Shares
transferred in accordance with Sections 3, 4, 6, 7 and 8 hereof shall be issued
without such legend.
10. Arbitration. Disputes that arise under this Agreement will be resolved
as follows:
(i) except as set forth in the penultimate paragraph of this
Section 10, no party shall bring a civil action arising under or with respect to
this Agreement;
(ii) at any time any party may demand arbitration of any
dispute, arising under or with respect to this Agreement by delivering written
notice thereof to: (x) the parties hereto; and (y) an office of JAMS/Endispute
located in New York City (or,
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if none, then the office of JAMS/Endispute located closest to New York City);
and
(iii) any such arbitration shall be conducted in New York City
according to JAMS/Endispute's Arbitration Rules then in effect applicable to
disputes of the types submitted to arbitration and the results of such
arbitration shall be final and binding on the parties.
In the event that JAMS/Endispute is not available to provide such arbitration
services with respect to any such dispute, then that dispute shall be resolved
by final, binding arbitration in New York City by three arbitrators pursuant to
the rules then prevailing of the American Arbitration Association applicable to
disputes of the type submitted to arbitration. Judgement on the award rendered
by any of the above referenced arbitrators may be confirmed and entered in and
by any court having jurisdiction.
Notwithstanding the foregoing, each party specifically reserves the right
to seek equitable remedies in a court of competent jurisdiction.
11. Representations and Warranties of the Stockholders. Each Stockholder
represents and warrants to IPL as follows: This Agreement has been duly executed
and delivered by the Stockholder and constitutes the valid and binding agreement
of the Stockholder, enforceable against the Stockholder in accordance with its
terms.
12. Notices, etc. All notices, requests, demands, waivers, consents,
approvals or other communications to any party hereunder shall be in writing and
shall be deemed to have been duly given if: (i) delivered personally to such
party; or (ii) sent to such party by telegram or telecopy, with a copy sent on
the same day via overnight delivery to the following addresses:
If to IPL, to:
International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax#: (000) 000-0000
If to Siracusano, to:
Xxxxx X. Xxxxxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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If to Buck, to:
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
c/o Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
All notices to IPL shall also be sent to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Fax #: (000) 000-0000
All notices to the Stockholders shall also be sent to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
Fax #: (000) 000-0000
or to such other address as the addressee may have specified in notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications shall be deemed to have been given and
received as of the date so delivered, telegraphed or telecopied.
13. Amendments, Waivers, etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by each of the parties hereto.
14. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including without limitation in the case of any
corporate party hereto any corporate successor by merger or otherwise.
15. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and
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understandings relating to such subject matter. There are no representations,
warranties or covenants by the parties hereto relating to such subject matter
other than those expressly set forth in this Agreement. In the event of any
conflict between the terms and provisions of this Agreement and the terms and
provisions of the Merger Agreement, the terms and provisions of the Merger
Agreement shall prevail.
16. Severability. Each party agrees that, should any court or other
competent authority hold any provision of this Agreement or part hereof to be
null, void or unenforceable, or order any party to take any action inconsistent
herewith or not to take an action consistent herewith or required hereby, the
validity, legality and enforceability of the remaining provisions and
obligations contained or set forth herein shall not in any way be affected or
impaired thereby.
17. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any right, power or remedy by such party.
18. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
19. Third Party Beneficiaries. Except as expressly provided herein, this
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder. .
20. Governing Law. This Agreement shall be governed by, and interpreted
under, the laws of the State of New York applicable to contracts made and to be
performed therein without regard to conflict of laws principles.
21. Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
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require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together constitute an instrument. Each counterpart may consist of a number of
copies each signed by less than all, but together signed by all, the parties
hereto.
23. Glossary. The following terms as used in this Agreement shall have the
meanings indicated below:
"Deposited Shares" has the meaning set forth in the Escrow
Agreement.
"Permitted Transferee" with respect to a Transfer by any individual
Stockholder, means any immediate family member (including without limitation,
any spouse or former spouse, child or trust for the benefit of such individuals)
or Affiliate or entity beneficially owned by one or more such Persons.
"Transfer" with respect to a share of IPL Common Stock, means the
sale, assignment, transfer, pledge, hypothecation, gift or other disposition of
such share, or the encumbrance or granting of any rights, options or interests
whatsoever in or in respect of such share.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
INTERNATIONAL POST LIMITED
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
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/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
