EXHIBIT 10.1
AGREEMENT AND PLAN
OF
REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") entered into as
of this 24th day of February, 1997, by and among Hope X. Xxxxxx ("HEC"),
Xxxxxxx X. Xxxxxx ("CEC"), Xxxxx X. Xxxxxxxxxx ("JEA"), Xxxxxx X. Xxxxxxxxxx
("XXX"), Looscaunagh Investments L.L.C., a Delaware limited liability company
("Looscaunagh"), Glacier Capital L.L.C., a Delaware limited liability company
("Glacier"), Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, solely in their capacities as
co-Trustees to Irrevocable Trust For Descendants of Hope Xxxxxx Xxxxxx, Dated
November 12, 1993 (the "Xxxxxx Family Trust"), Xxxxxx X. Xxxxxxxxxx and Xxxxxx
Xxxxxxxxx, III, solely in their capacities as co-Trustees to Xxxxx X. and
Xxxxxxx X. Xxxxxxxxxx Trust, Dated November 15, 1993 (the "Xxxxxxxxxx Family
Trust"), Bazaguma Limited Partnership, a Connecticut limited partnership
("Bazaguma"), Wave Investments, L.L.C., a Connecticut limited liability company
("Wave Investments"), Wave Air, Inc., a Delaware corporation ("Wave Air"),
(HEC, CEC, Looscaunagh, Glacier and Xxxxxx Family Trust are sometimes referred
to herein as the "Xxxxxx Family" and JEA, XXX, Xxxxxxxxxx Family Trust,
Bazaguma, Wave Investments and Wave Air are sometimes referred to herein as the
"Xxxxxxxxxx Family" and with the Xxxxxx Family, collectively the "Principal
Parties"), and Cypress Capital L.L.C. ("Cypress"), Banyan Investments L.L.C.
("Banyan"), Xxxx Capital L.L.C. ("Xxxx"), The Corotoman Company, L.L.C.
("Corotoman"), each a Delaware limited liability company (Cypress, Banyan, Xxxx
and Corotoman, collectively, the "Corotoman Group Companies").
W I T N E S S E T H:
WHEREAS, the Xxxxxx Family and the Xxxxxxxxxx Family intend and desire to
separate their respective direct and indirect business interests in the
Corotoman Group Companies (the "Reorganization"); and
WHEREAS, the Principal Parties desire to evidence their agreements with
respect to the Reorganization in this Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE to take the actions specified
below and to make all reasonable efforts to conclude the Reorganization on the
following principles, terms and conditions as soon as practicable:
SECTION I
AGREEMENTS AND TRANSACTIONS
. GENERAL. The Reorganization shall be comprised of a series of
transactions intended to close simultaneously on the Closing Date (as defined
below).
. TRANSACTIONS RELATING TO CYPRESS.
. OPERATING AGREEMENTS. On or before the Closing Date, the
Xxxxxx Family members of Cypress and the Xxxxxxxxxx Family members of Cypress,
as set forth on SCHEDULE A hereto, shall execute the existing Cypress Operating
Agreement in the form attached as EXHIBIT A hereto.
. REDEMPTION. On the Closing Date, Cypress shall fully redeem,
and the Xxxxxx Family members of Cypress shall surrender, the interests of the
Xxxxxx Family members in Cypress in exchange for the consideration specified on
SCHEDULE A hereto.
. TRANSACTIONS RELATING TO BANYAN.
. OPERATING AGREEMENTS. On or before the Closing Date, the
Xxxxxx Family members of Banyan and the Xxxxxxxxxx Family members of Banyan, as
set forth on SCHEDULE B hereto, shall execute the existing Banyan Operating
Agreement in the form attached as EXHIBIT B hereto.
. SATISFACTION OF DEBT. On or before the Closing Date, Banyan
shall transfer to Corotoman the assets listed on SCHEDULE B hereto, in full
satisfaction of all outstanding debt to Corotoman related to the acquisition of
such assets.
. REDEMPTION. On the Closing Date, Banyan shall fully redeem,
and the Xxxxxx Family members of Banyan shall surrender, the interests of the
Xxxxxx Family members of Banyan in exchange for the consideration set forth on
SCHEDULE B hereto.
. TRANSACTIONS RELATING TO XXXX.
. REDEMPTION. On the Closing Date, Xxxx shall fully redeem,
and the Xxxxxx Family members of Xxxx shall surrender, the interests of the
Xxxxxx Family members of Xxxx as set forth on SCHEDULE C hereto, in exchange
for the consideration set forth thereon.
. DISTRIBUTION TO COROTOMAN. On or before the Closing Date,
Xxxx shall distribute to Corotoman the interests specified on SCHEDULE D
hereto. On the Closing Date, Corotoman shall in turn distribute to the Xxxxxx
Family members of Corotoman such interests, which shall include certain
investment rights as set forth on SCHEDULE D, pursuant to SUBPARAGRAPH 5.C.
below.
. TAX ALLOCATIONS. The parties agree that the current
allocations of income and loss contained in the limited liability company
agreement of Xxxx do not reflect the economic interests of the members of Xxxx
in its income or loss for 1996 in light of this Agreement. Accordingly, the
allocation provisions of such agreement shall be amended to provide that for
1996, the income or
loss of Xxxx shall be
allocated as set forth on SCHEDULE H, or all of the members of Xxxx shall
consent, on or prior to the Closing Date, to such allocation.
. TRANSACTIONS RELATING TO COROTOMAN.
. REDEMPTION. On the Closing Date, Corotoman shall fully
redeem, and the Xxxxxx Family members of Corotoman shall surrender, the
interests of the Xxxxxx Family members, as set forth on SCHEDULE E hereto, in
exchange for certain investment interests and an assumption of certain
liabilities as set forth below.
. CAI WIRELESS SYSTEMS, INC. STOCK. On the Closing Date, in
one or more transfers, Corotoman shall, as part of the redemption pursuant to
SUBPARAGRAPH 5.A. above, distribute pro rata to its members all of its shares
of common stock of CAI Wireless Systems, Inc. ("CAI"). The allocation of
specific share certificates shall be as provided on SCHEDULE F1 hereto.
. OTHER ASSETS. On the Closing Date, Corotoman shall, as part
of the redemption pursuant to SUBPARAGRAPH 5.A. above, distribute to the Xxxxxx
Family members the assets set forth on SCHEDULE F2.
. LIABILITIES. In connection with the redemption pursuant to
SUBPARAGRAPH 5.A. above:
. MARGIN ACCOUNTS. On the Closing Date, JEA shall assume
all obligations on the margin account(s) of Corotoman, or such accounts shall
otherwise have been satisfied, as specified on SCHEDULE G hereto.
. PAYABLES. The payables and funding commitments of the
Corotoman Group Companies, shall remain the post-closing responsibility of the
applicable Corotoman Group Companies, except that on or before the Closing
Date, the Xxxxxx Family shall have made arrangements to pay thirty thousand
dollars ($30,000) of legal fees to Day, Xxxxx & Xxxxxx.
. TAX ALLOCATIONS. The parties agree that the current
allocations of income and loss contained in the limited liability company
agreements of Corotoman and Xxxx do not reflect the economic interests of the
members of Corotoman and Xxxx in their income or loss for 1996 and 1997 viewed
in light of this Agreement. Accordingly, the allocation provisions of such
agreement shall be amended to provide that the income or loss of Corotoman for
1996 shall be allocated among its members as set forth on SCHEDULE H, or all of
the members of Corotoman shall consent, on or prior to the Closing Date, to
such allocation. For 1997, the Xxxxxx Family members shall be allocated no net
income or loss from any of the Corotoman Group Companies.
. OTHER AGREEMENTS.
. CEC LETTER. On the Closing Date, JEA shall execute the
letter with respect to CEC in the form attached as EXHIBIT C hereto (the "CEC
Letter"). In the event that JEA, Corotoman or Xxxx is requested to provide a
reference or similar such information in regard to CEC, JEA, Corotoman or Xxxx
will confirm the statements contained in the CEC Letter, and JEA, Corotoman or
Xxxx will confirm that CEC resigned his employment to pursue other business
opportunities, but will not provide any further information or comments.
. INDEMNIFICATION OBLIGATIONS. JEA hereby agrees to indemnify
and hold harmless HEC from and against any losses, claims, demands, damages or
liabilities of any kind as a named defendant in any claim or litigation
involving securities law matters brought against Corotoman or CAI, including
but not limited to: (i) the class action suit brought in the U.S. District
Court, Northern District of New York by Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx and
Xxxxxx Ravens against Corotoman, JEA, XXX, HEC, CAI and Xxxx Xxxxxxxxxx
("Xxxxxxxxxx"), Civil Action No. 96-CV-1857, (ii) the class action suit brought
in the U.S. District Court, Northern District of New York by Xxxxxx Xxxxxxx
against CAI, JEA, XXX, HEC and Corotoman, Civil Action No. 97-CV-0037 and (iii)
the class action suit brought in the U.S. District Court, Northern District of
New York by Xxxxxx Xxxxx and Xxxx X. Xxxxx against CAI, JEA, XXX, HEC,
Xxxxxxxxxx, Corotoman and Xxxx X. Xxxxxx, Civil Action No. 97-CV-0088, but
excluding any loss, claim, demand, damage or liability of HEC that is
determined by final and non-appealable judgment of a court of competent
jurisdiction to have resulted primarily from actions taken by HEC in bad faith
or from HEC=s wilful misconduct, which actions are not currently known by JEA
or his counsel. JEA shall have the right to undertake, through counsel of his
own choosing and at his own expense, the settlement or defense thereof, and HEC
shall cooperate with him in connection therewith; PROVIDED, HOWEVER, that HEC
may participate in such settlement or defense through counsel chosen by HEC,
provided that the fees and expenses of such counsel shall be borne by HEC.
. ACCESS TO RECORDS. After the close of the transactions
contemplated herein, (i) the Xxxxxxxxxx Family shall have a right of reasonable
access, in connection with any post-closing audit or litigation, to any and all
records transferred to or retained by the Xxxxxx Family pursuant to
SUBPARAGRAPH 4.D. of SECTION IV below; and (ii) the Xxxxxx Family shall have a
right of reasonable access, in connection with any post-closing audit or
litigation, to any and all records transferred to or retained by the Xxxxxxxxxx
Family or the Corotoman Group Companies.
. CERTAIN XXXXXX FAMILY INVESTMENT RIGHTS. JEA hereby agrees
to undertake (or cause to be undertaken) the obligations set forth in SECTION 2
of SCHEDULE D hereto.
. CAI WIRELESS SYSTEMS, INC. STOCK. From the date hereof
through the date ninety (90) days following the Closing Date, the Xxxxxxxxxx
Family on the one hand, and the Xxxxxx Family, on the other hand, shall not be
entitled to sell more than fifty-two percent (52%) and forty-eight percent
(48%), respectively, of the aggregate number of shares of Common Stock of CAI
eligible for sale by the account of Corotoman pursuant to Rule 144(e)(1) under
the Securities Act of 1933, as amended, without the prior written consent of
the other such party. From the date hereof through ninety (90) days following
the Closing Date, JEA shall promptly cause CAI to notify HEC when the trading
window is open for affiliates of CAI.
. CHARITABLE OBLIGATIONS. The obligations of The Corotoman
Foundation, Inc. shall have been cancelled prior to the Closing Date.
SECTION II
REPRESENTATIONS AND WARRANTIES
. GENERAL. Each party hereby represents and warrants to each of the
other parties as of the Closing Date as follows:
. AUTHORITY. Such party has full power and authority to enter
into this Agreement and the other documents contemplated hereby and to perform
such party=s obligations hereunder and thereunder.
. VALID EXECUTION AND DELIVERY. This Agreement has been, and
the other documents contemplated hereby required to be delivered by such party
will be, duly and validly executed and delivered by such party.
. LEGAL, VALID AND BINDING OBLIGATION. This Agreement
constitutes, and the documents contemplated hereby required to be delivered by
such party when executed and delivered will constitute, the legal, valid and
binding obligations of such party, enforceable against such party in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium and other laws affecting creditors= rights generally from time to
time in effect and to general equitable principles.
. CERTAIN PARTIES. As of the Closing Date, each of the entities
transferring assets or property in connection with the Reorganization hereby
represents and warrants to each of the parties receiving assets or property,
whether directly or through another party, as follows:
. CONSENTS. Other than as set forth on SCHEDULE I hereto, the
execution, delivery and performance of this Agreement by such party and the
other documents contemplated hereby do not require the approval or consent of
any third party.
. GOOD TITLE. Other than as set forth on SCHEDULE J hereto,
such party has, and will transfer on the Closing Date, good title to any and
all stock or investment interests to be transferred by, or redeemed from, such
party as a result of this Agreement, free and clear of all liens, charges,
pledges, claims, agreements and encumbrances of any kind.
. NO REPRESENTATION. Each party agrees and acknowledges that none of
the other parties, nor any of their respective directors, officers, employees,
members or agents, nor any of their respective counsel or representatives makes
any representation as to (i) the value of any stock or investment interests and
related rights transferred or redeemed as a result of this Agreement, or (ii)
the operations of any of the investments of any Corotoman Group Company in the
companies listed on SCHEDULE K hereto.
. REPRESENTATIONS OF JEA. JEA hereby represents and warrants to the
Xxxxxx Family as of the Closing Date as follows:
. FINANCIAL STATEMENTS. The Corotoman Group Companies have
provided to the Xxxxxx Family true and complete copies of the unaudited
financial statements of such entities for the preceding three (3) years and
unaudited interim financial statements (the "Financial Statements") through the
date hereof which are in accordance with the books and records of such
entities, are consistent with past practice (other than showing cash versus
accruals) and, taken as a whole, present fairly the financial condition and
results of operation and cash flows as of the dates and for the periods set
forth therein.
. LIABILITIES. The Corotoman Group Companies have, except as
disclosed on SCHEDULES F1, G and J hereto or otherwise described to the Xxxxxx
Family in writing, only the liabilities disclosed on the Financial Statements
and have no other material liabilities, actual or contingent, of any kind or
nature whatsoever, other than liabilities arising in the ordinary course of
business. Except as set forth in PARAGRAPHS 2, 4, 5 AND 6 of SCHEDULE J with
respect to HEC, no such liabilities are assessable to HEC, or CEC, as
individual members of the Xxxxxx Family.
. COROTOMAN TAX RETURNS; TAXES. Corotoman has filed all tax
returns that it was required to file through the date hereof. All such tax
returns were correct and complete in all respects. All taxes owed by Corotoman
(whether or not shown on any tax return) have been timely paid. Corotoman is
not currently the beneficiary of any extension of time within which to file any
tax return. Corotoman has withheld and paid all taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, member or other third party.
. CAI STOCK SALES. Corotoman has provided to the Xxxxxx Family
a true and complete record of all sales of CAI common stock held in its name
from its inception through the date hereof.
. ACCURACY OF INFORMATION. Except as otherwise disclosed to
the Xxxxxx Family, no statement made by JEA or any of the Corotoman Group
Companies, including in any schedule or exhibit attached hereto, contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements contained herein or therein, taken as a whole, not misleading.
. NO TRANSACTIONS CONTEMPLATED. None of JEA, Corotoman,
Banyan, Cypress or Xxxx is currently participating in any transaction for the
sale, gift, disposition or transfer of any of its assets, except in the
ordinary course of business, nor does there exist any binding agreement for the
same.
. TRANSACTIONS WITH AFFILIATES. JEA and the Corotoman Group
Companies have disclosed to the Xxxxxx Family all current and pre-existing
transactions of each of the Corotoman Group Companies with their respective
Affiliates. For purposes of this Agreement, "Affiliate" means, with respect to
any Corotoman Group Company, a person, partnership, joint venture, association,
corporation, limited liability company, trust or other entity that directly
controls, is controlled by or is under common control with such Corotoman Group
Company.
. CAPITALIZATION. To the best of JEA=s knowledge, based on
reasonable investigation, (i) the capitalization of each of the investment
interests distributed to the Xxxxxx Family pursuant to this Agreement is as set
forth on SCHEDULE K, and (ii) the current capital structure of each of the
Corotoman Group Companies, Wave Air, Aquatic Development Group, Inc. ("ADG"),
Xxxx Partners (I) L.L.C., Crest Partners (I) LLC ("Crest Partners"), Crest
Funding Partners, L.P. ("Crest Funding"), Crest International Holdings LLC
("Crest International"), Crest Participating Pool LLC ("Participating Pool"),
The CableShoppe, Inc. ("CableShoppe"), Corgast, L.L.P. ("Corgast") and TelQuest
Systems, Inc. is as set forth on SCHEDULE K.
SECTION III
CONFIDENTIALITY
Each party hereto agrees that such party shall, prior to and after the
Closing Date, maintain the Confidential Information (as defined below) of each
other party hereto in confidence and shall not disclose, nor cause to be
disclosed, to any third party any Confidential Information of any other party
without the prior written consent of such party, except disclosure may be made
to the counsel, accountants and professional advisors of a party, provided they
have been informed of the confidential nature of the proprietary information
and have agreed to treat it as confidential and except as may be required
pursuant to a valid court order or subpoena, by federal, state or local tax
authorities, to comply with applicable federal and state securities laws or to
enforce the provisions hereof. Each party will also take reasonable
precautions to prevent the inadvertent exposure of Confidential Information to
unauthorized persons or entities. As used herein, "Confidential Information"
shall mean (i) for all parties hereto, EXHIBITS A, B and D of, and SCHEDULES D,
F1, G, H and J to this Agreement and any information regarding Celerity
Partners I, L.P., (ii) for the Xxxxxxxxxx Family and the Corotoman Group
Companies, any information regarding Crest International, Crest Partners, Crest
Funding, Participating Pool, CableShoppe, ADG, or Corgast and any personal
financial information regarding JEA, and (iii) for the Xxxxxx Family, any
information regarding Horus Therapeutics, Inc., British American, LLC or Laurel
Lake, L.L.C., SCHEDULE F2 and any personal financial information regarding HEC
or CEC. Each party hereto further agrees to recognize any outstanding or
future confidentiality obligations with regard to Wave International, Inc. and
Wave Transnational, L.L.C. "Confidential Information" shall not include
information that (w) has become generally known to the public without breach of
any obligation of confidentiality of any party hereto or any third party; (x)
is communicated to a third party with the express written consent of the
disclosing party; (y) is communicated to a party with respect to a business
they will keep; or (z) was independently developed by a party or was acquired
by such party from a third party (except if developed or acquired in such
party=s fiduciary representative capacity in connection with any other party).
SECTION IV
CLOSING
. RELEASE. Each party hereto agrees to execute and exchange, on the
Closing Date, mutually satisfactory general releases, in the form attached as
EXHIBIT D hereto (the "Release"), in favor of all parties, and all directors,
officers, employees and members of the parties; PROVIDED, HOWEVER, that nothing
contained in this Agreement or in any document referred to herein or executed
in connection with the transactions contemplated hereby (including, without
limitation, the Release) shall release, remise, compromise, waive or discharge
or be deemed to constitute a release, discharge, waiver or compromise by any
party of, or otherwise impact or affect in any way, any claim which any party
ever had, now has or may have against any attorneys or legal representatives in
connection with services rendered in such capacity to any of the parties
hereto.
. TIME AND PLACE. The closing of the transactions contemplated
hereby shall occur on the date hereof (the "Closing Date"), and shall take
place at the offices of Day, Xxxxx & Xxxxxx, or at such other place and such
other time as the parties may mutually agree.
. CONDITIONS TO CLOSING. The parties shall be obligated to
consummate each of the transactions contemplated by this Agreement, subject to
the following conditions with respect to each such transaction; PROVIDED,
HOWEVER, that the failure of a party to satisfy the respective conditions set
forth below shall not relieve such party from its obligation to consummate the
transactions contemplated by this Agreement:
. Obtaining the required consents or approvals set forth, or
required to be set forth, on SCHEDULE I hereto;
. The execution and delivery by applicable third parties of all
other documents contemplated hereby as set forth on SCHEDULE L hereto;
. The performance and compliance by the parties with all
agreements and conditions contained in this Agreement required to be performed
or complied with by them prior to or on the Closing Date; and
. The representations and warranties in SECTION II of this
Agreement of each of the parties shall be true and correct on the Closing Date.
. CLOSING DELIVERIES. The applicable parties shall deliver the
following at the closing of the transactions contemplated by this Agreement:
. The execution and delivery of the Cypress Operating
Agreement, the Banyan Operating Agreement and the mutual Releases, each in the
form attached as an exhibit hereto.
. The resignation of HEC, CEC and any other Xxxxxx family
member from any office in any of the Corotoman Group Companies;
. The execution and delivery of all other documents
contemplated hereby as set forth on SCHEDULE L hereto;
. The transfer of all books, records and files relating to all
investment interests distributed to any member of the Xxxxxx Family; and
. The balance sheet of Corotoman as of the Closing Date, a copy
of which is attached hereto as EXHIBIT E.
SECTION V
MISCELLANEOUS
. NOTICES. Any notices necessary or required hereunder shall be in
writing and shall be given to the parties by hand, by nationally recognized
overnight courier service, by Express, registered or certified mail, postage
prepaid, return receipt requested, at the addresses set forth below or by
facsimile.
If to HEC or Looscaunagh:
000 Xxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
Fax No.: 000-000-0000
If to CEC or Glacier:
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
If to JEA or Bazaguma:
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
If to XXX:
x/x Xxxx Xxxxxx Cafe
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
If to Wave Investments, Wave Air or the Corotoman Group Companies:
00 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
If to the Xxxxxx Family Trust:
c/o Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxx
c/o Newport Partners
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Fax No.: 000-000-0000
If to the Xxxxxxxxxx Family Trust:
c/o Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxx Xxxxxxxxx, III, Esq.
Any notice to HEC, CEC, Glacier, Looscaunagh or the Xxxxxx Family Trust
shall be copied to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxxx X. Carp, Esq.
Any notice to HEC, Looscaunagh or the Xxxxxx Family Trust shall also be
copied to:
Xxxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
Any notice to JEA, XXX, Bazaguma, Wave Investments, the Xxxxxxxxxx Family
Trust or Wave Air shall be copied to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxx Xxxxxx, Esq.
Any notice to the Corotoman Group Companies shall be copied to:
Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxx Xxxxxxxxx, III, Esq.
Notices shall be deemed to have been received upon the date of delivery,
if delivered by hand; one (1) day following the date of deposit with any
nationally recognized overnight courier service or with the U.S. Postal Service
as Express mail; three (3) days following the date of deposit with the U.S.
Postal Service as registered or certified mail, postage prepaid; and when
confirmed in writing, if delivered by facsimile, whether by manual or
electronic re-transmission receipt, by the party for whom transmission is
intended. Any party may change its notice address by written notice to the
other parties.
. SURVIVAL. The representations and warranties set forth in SECTION
II hereof shall expire upon the closing of the Reorganization and each party
agrees that it shall not bring any action, suit, proceeding or claim based upon
or in respect of any such representation or warranty.
. FURTHER ASSURANCES; ADDITIONAL DOCUMENTS. The parties shall take
such action and shall execute, or cause to be executed, such additional
documents before, on or after the applicable Closing Date, including without
limitation those documents set forth on SCHEDULE L hereto, as may be necessary
or desirable to effectuate the terms of this Agreement or to otherwise evidence
the transactions contemplated hereby.
. INTENTION TO BE BINDING. This Agreement is intended to be a legal
and valid agreement, binding upon the parties in accordance with its terms.
. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties, any members, stockholders, directors thereof, and
their respective heirs, executors, administrators, successors and assigns.
. COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which need not contain the signatures of all of the
parties, but all of which taken together shall constitute one agreement.
. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut, without regard to
conflicts of law rules.
. AMENDMENT. This Agreement may be changed, modified or amended from
time to time only in a writing signed by the parties.
. WAIVER. No waiver of any provision of this Agreement or any breach
hereunder shall be deemed a waiver of any other provision or subsequent breach,
nor shall any such waiver constitute a continuing waiver. A waiver shall be
effective only if in writing and signed by the waiving party.
. GENDER. All nouns, pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
context may require.
. ENTIRE AGREEMENT. This Agreement, together with all Schedules
hereto and all other documents contemplated hereby, constitute the entire
agreement between the parties relating to the subject matter hereof and
supersede all prior and contemporaneous oral and written understandings between
the parties.
. SEVERABILITY. If any part of this Agreement, or the application
thereof to any person or circumstance, is held for any reason invalid or
unenforceable by a court of competent jurisdiction, it shall be deemed
severable, and the validity of the remainder of this Agreement or the
application of such provision to other persons or circumstances shall not be
affected thereby.
. LEGAL FEES. Except as provided in SUBPARAGRAPH 5.D.II. of SECTION
I above, the Principal Parties shall pay their own fees and expenses, including
all fees of counsel or other advisors in connection with the Reorganization.
None of the Principal Parties shall be entitled to reimbursement from any of
the Corotoman Group Companies for any such fees or expenses, including without
limitation any fees or expenses incurred in connection with the negotiation or
execution of this Agreement or any due diligence or other costs related to or
arising out of the Reorganization contemplated hereby. Without limiting the
generality of the foregoing, the Xxxxxx Family shall not be responsible for any
fees to Day, Xxxxx & Xxxxxx in excess of thirty thousand dollars ($30,000), as
set forth in SECTION I, SUBPARAGRAPH 5.D.II. above.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
/s/
Hope X. Xxxxxx
/s/
Xxxxxxx X. Xxxxxx
/s/
Xxxxx X. Xxxxxxxxxx
/s/
Xxxxxx X. Xxxxxxxxxx
LOOSCAUNAGH INVESTMENTS L.L.C.
By: /S/
Xxxxxxx X. Xxxxxx
An Authorized Member
GLACIER CAPITAL L.L.C.
By: /S/
Xxxxxxx X. Xxxxxx
An Authorized Member
XXXXX X. AND XXXXXXX X. XXXXXXXXXX TRUST,
DATED NOVEMBER 15, 1993
By: /S/
Xxxxxx Xxxxxxxxx, III, as co-Trustee
By: /S/
Xxxxxx X. Xxxxxxxxxx, as co-Trustee
BAZAGUMA LIMITED PARTNERSHIP
By: Niskayuna Management, Inc.
Its General Partner
By: /S/
Xxxxxxx X. Xxxxxxxxxx
President
WAVE INVESTMENTS, L.L.C.
By: /S/
Xxxxx X. Xxxxxxxxxx
Its Managing Member
WAVE AIR, INC.
By: /S/
Xxxxx X. Xxxxxxxxxx
President
THE COROTOMAN COMPANY, L.L.C.; CYPRESS CAPITAL
L.L.C.; BANYAN INVESTMENTS L.L.C..
By: /S/
Xxxxx X. Xxxxxxxxxx
Their Managing Member
XXXX CAPITAL L.L.C.
By: The Corotoman Company, L.L.C.
Its Managing Member
By: /S/
Xxxxx X. Xxxxxxxxxx
An Authorized Member
IRREVOCABLE TRUST FOR DESCENDANTS OF HOPE XXXXXX
XXXXXX, DATED NOVEMBER 12, 1993
By: /S/
Xxxxxx X. Xxxxxx, as co-Trustee
By: /S/
Xxxx X. Xxxxxx, as co-Trustee