STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT ("Agreement"), dated March 3, 1998, by and
between Xxxx Xxx Corporation, a Maryland corporation ("Xxxx Xxx"), and the
other parties signatory hereto (each a "Stockholder").
RECITALS
Xxxx Xxx, The Aristotle Corporation, a Delaware corporation (the
"Company"), and Xxxxxxx, Xxxxx Company, a Delaware corporation (the "Xxxxxxx
Xxxxx") (Xxxxxxx Xxxxx and Company are sometimes individually and
collectively called "Sellers"), are entering into an Asset Purchase Agreement
of even date herewith (as such agreement may be amended from time to time,
the "Purchase Agreement") pursuant to which (and subject to the terms and
conditions specified therein) Xxxx Xxx or its designee ("Purchaser") will
acquire substantially all of the assets of Xxxxxxx Xxxxx and assume certain
specified liabilities (the "Acquisition"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Purchase Agreement.
In consideration of and as a condition to Xxxx Xxx'x entering into the
Purchase Agreement, Xxxx Xxx requires that each Stockholder enter into, and
each such Stockholder has agreed to enter into, this Agreement with Purchaser.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each Stockholder
hereby severally and not jointly represents and warrants to Purchaser as
follows:
1.1 OWNERSHIP OF SHARES. (a) Such Stockholder is the record
holder and beneficial owner of the number of shares of common stock of the
Company, par value $.01 per share (the "Common Stock"), and the number of
shares of capital stock (other than Common Stock) of the Company as is set
forth opposite such Stockholder's name on Schedule I hereto (all such shares
shall constitute the "Existing Shares", and together with any and all shares
of capital stock of the Company acquired of record or beneficially by such
Stockholder in any capacity after the date hereof and prior to the
termination hereof, whether upon exercise of options, conversion of
convertible securities, purchase, exchange or otherwise, shall constitute the
"Shares").
(b) On the date hereof, the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
outstanding shares of Company capital stock owned of record or beneficially
by such Stockholder. Such Stockholder does not have record or beneficial
ownership of any shares of capital stock or rights to acquire
shares of capital stock, whether upon exercise of options, conversion of
convertible securities, purchase, exchange or otherwise not set forth on
Schedule I hereto.
(c) Such Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite such Stockholder's
name on Schedule I and sole voting power with respect to the matters set
forth in Section 2 hereof and sole power to demand dissenter's or appraisal
rights, in each case with respect to all of the Existing Shares set forth
opposite such Stockholder's name on Schedule I, with no restrictions on such
rights.
(d) Such Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by such Stockholder and will have sole voting power with
respect to the matters set forth in Section 2 hereof and sole power to demand
dissenter's or appraisal rights, in each case with respect to all Shares
other than Existing Shares, if any, which become beneficially owned by such
Stockholder, with no restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement.
1.2 POWER; BINDING AGREEMENT. Each such Stockholder which is an
entity has the power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement; the execution, delivery and
performance of this Agreement by such Stockholder has been duly authorized by
its governing body; and no other proceedings on the part of such Stockholder
are necessary to authorize such execution, delivery and performance. Each
such Stockholder which is an individual has the legal capacity, power and
authority to enter into and perform all of such Stockholder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by such Stockholder will not violate any other agreement to which
such Stockholder is a party or by which such Stockholder is bound including,
without limitation, any trust agreement, voting agreement, stockholders'
agreement, voting trust, purchase agreement, partnership or other agreement.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary of or holder of interest in any trust of
which a Stockholder is Trustee whose consent is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby. If such Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder's spouse, enforceable against such person in
accordance with its terms.
1.3 CONSENT AND APPROVALS; NO CONFLICTS. No filing with, and no
permit, authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement by such
Stockholder and the performance by such Stockholder of the obligations of
such Stockholder hereunder. Neither the execution and delivery of this
Agreement by such Stockholder nor the performance by such Stockholder of the
obligations of such Stockholder hereunder nor compliance by such Stockholder
with
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any of the provisions hereof shall (i) conflict with or result in any
breach of any applicable trust, partnership agreement or other agreement or
organizational document applicable to such Stockholder, (ii) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or
by which such Stockholder or any of such Stockholder's properties or assets
may be bound, or (iii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
1.4 NO LIENS. Such Stockholder's Shares and the certificates
representing such Shares are now and at all times during the term hereof will
be held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising under this Agreement.
1.5 RELIANCE BY PURCHASER. Such Stockholder understands and
acknowledges that (i) Purchaser is entering into the Purchase Agreement in
reliance upon such Stockholder's execution, delivery and performance of this
Agreement, and (ii) the irrevocable proxy is granted in Section 2.2 in
consideration of the execution and delivery of the Purchase Agreement, and in
recognition of Xxxx Xxx'x potential role in attracting the interest of other
persons or entities in the acquisition of Xxxxxxx Xxxxx.
1.6 REVIEW OF PURCHASE AGREEMENT. Such Stockholder has reviewed,
in consultation with counsel, and understands the terms of this Agreement and
the Purchase Agreement.
1.7 BROKERS. No agent, broker, investment banker, financial
advisor or other person or entity is or will be entitled to any brokerage
commission, finder's fee or like payment in connection with any of the
transactions contemplated by this Agreement or the Purchase Agreement based
upon such arrangements made by or on behalf of such Stockholder.
2. AGREEMENT TO VOTE; PROXY.
2.1 VOTING. Each Stockholder hereby agrees that, until the
Termination Date (as defined in Section 6), at any meeting of the
stockholders of the Company and at any adjournment thereof, however called,
or in connection with any written consent of the stockholders of the Company,
such Stockholder shall vote (or cause to be voted) the Shares held of record
or beneficially by such Stockholder (i) in favor of the Acquisition, the
execution and delivery by the Company of the Purchase Agreement and the
approval of the
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terms thereof and each of the other actions contemplated by the Purchase
Agreement and this Agreement and any actions required in furtherance hereof
and thereof; and (ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Purchase Agreement or of such Stockholder
under this Agreement; and (iii) against the following actions (other than the
Acquisition and the transactions with Purchaser contemplated by the Purchase
Agreement): (a) any Acquisition Proposal or any other extraordinary corporate
transaction, such as an acquisition, consolidation or other business
combination involving the Company or Xxxxxxx Xxxxx; (b) a sale, lease,
exchange, transfer or other disposition, directly or indirectly, of all or a
substantial portion of the consolidated assets of Xxxxxxx Xxxxx and the
Company, a sale of capital stock of the Company or Xxxxxxx Xxxxx or a
reorganization, recapitalization, dissolution or liquidation of the Company
or Xxxxxxx Xxxxx; (c) any change in the board of directors of the Company;
(d) any change in the present capitalization of the Company or any other
matter which could in any way dilute, reduce or adversely affect the
aggregate voting power or rights, on a Fully-Diluted Basis of the Shares; or
(e) any other action, including, without limitation, any amendment of the
charter or by-laws of the Company which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Acquisition or the transactions contemplated by the Purchase
Agreement or this Agreement or the consummation or contemplated economic
benefits of any of the foregoing; provided, however, that notwithstanding the
terms of subclause (iii) of this Section 2.1, the Company shall be permitted
to engage in any Permitted Company Transaction. Such Stockholder shall not
enter into any agreement or understanding with any person or entity prior to
the Termination Date to vote or give instructions after the Termination Date
in any manner inconsistent with clauses (i), (ii) or (iii) of this Section
2.1 or the provisions of the preceding sentence. It is expressly understood
and agreed by each of the Stockholders that this Agreement is intended to,
and does hereby, create and constitute a voting agreement within the meaning
of Section 218(c) of the DGCL, and not a voting trust agreement under Section
218(a) thereof.
2.2 PROXY. EACH STOCKHOLDER HEREBY CONSTITUTES AND APPOINTS XXXXX
XXXXXXXXXX, R. XXXXX XXXXXXX OR ANY OTHER EMPLOYEE OF XXXX XXX DESIGNATED BY
EITHER OF THEM TO ACT FOR SUCH STOCKHOLDER AS HIS, HER OR ITS PROXY, WITH
FULL POWER OF SUBSTITUTION IN EACH, TO REPRESENT SUCH STOCKHOLDER FOR
PURPOSES OF VOTING THE SHARES AS EXPRESSLY PROVIDED IN SECTION 2.1. EACH
STOCKHOLDER AGREES THAT THIS PROXY SHALL CONSTITUTE A DULY-EXECUTED AND
DELIVERED PROXY PURSUANT TO SECTION 212 OF DGCL, THAT THE PROXY SHALL BE
IRREVOCABLE, GIVEN THAT IT IS COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO
SUPPORT AN IRREVOCABLE POWER. EACH STOCKHOLDER HEREBY REVOKES, EFFECTIVE UPON
THE EXECUTION AND DELIVERY HEREOF, ALL OTHER PROXIES THAT SUCH STOCKHOLDER
MAY HAVE HERETOFORE APPOINTED OR GRANTED, AND NO SUBSEQUENT PROXY SHALL BE
GIVEN OR WRITTEN CONSENT EXECUTED (OR IF GIVEN OR
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EXECUTED, SHALL NOT BE EFFECTIVE) BY SUCH STOCKHOLDER WITH RESPECT THERETO
FROM THE DATE HEREOF UNTIL THE TERMINATION DATE.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE SHARES. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST AND IS EXECUTED
AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION
212(e) OF THE DGCL.
3. CERTAIN COVENANTS OF STOCKHOLDERS. Except in accordance with the
terms of this Agreement, each Stockholder hereby severally covenants and
agrees as follows:
3.1 NO SOLICITATION. No Stockholder shall (or shall permit any of
its Affiliates or Representatives to), directly or indirectly, encourage,
solicit or initiate inquiries or proposals from, or provide any confidential
information to, or participate in any discussions or negotiations with, any
person or entity (other than Xxxx Xxx and its Affiliates and their respective
directors, officers, employees, representatives and agents) concerning any
Acquisition Proposal. Each Stockholder will immediately notify Xxxx Xxx of
the terms of any proposal, discussion, negotiation or inquiry (and will
disclose to Xxxx Xxx any written materials received by such Stockholder in
connection with such proposal, discussion, negotiation, or inquiry) and the
identity of the party making such proposal or inquiry which it may receive in
respect of any such transaction and will keep Xxxx Xxx apprised of the status
of any such proposals, discussions, negotiations or inquiries.
3.2 RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE. Prior
to the Termination Date, no Stockholder shall, directly or indirectly: (i)
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer
for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute, any or
all of such Stockholder's Shares or any interest therein, including any trust
income or principal, except in each case to a Permitted Transferee who is or
agrees to become bound by this Agreement in a writing executed by Xxxx Xxx;
(ii) except as contemplated by this Agreement, grant any proxies or powers of
attorney with respect to any Shares, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares; or (iii) take
any action that would make any representation or warranty of such Stockholder
contained herein to be untrue or incorrect or have the effect of preventing
or disabling such Stockholder from performing such Stockholder's obligations
under this Agreement.
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3.3 RESTRICTIVE COVENANTS.
(a) Each Stockholder recognizes that Purchaser's business interests
require the fullest practical protection and confidential treatment of all
information not generally known within the relevant trade group or by the
public, including all documents, writings, memoranda, business plans,
illustrations, designs, plans, processes, programs, inventions, computer
software, reports, sources of supply, customer lists, supplier lists, trade
secrets, and all other valuable or unique information and techniques
acquired, developed or used by Xxxxxxx Xxxxx relating to its businesses,
operations, employees and customers (hereinafter collectively termed
"Protected Information"). Each Stockholder expressly acknowledges and agrees
that Protected Information constitutes trade secrets, confidential and
proprietary business information of Purchaser. Protected Information shall
not include information which is or becomes part of the public domain through
no breach of this Agreement by either Seller. Each Stockholder acknowledges
that Protected Information is essential to the success of business, and it is
the policy of Purchaser to maintain as secret and confidential Protected
Information, which gives Purchaser a competitive advantage over those who do
not know the Protected Information and is expressly and implicitly protected
by Purchaser from unauthorized disclosure. Accordingly, each Stockholder
agrees to hold such Protected Information in a fiduciary capacity, to keep
secret and to treat confidentially and not to, and not to permit any other
person or entity to, directly or indirectly, appropriate, divulge, disclose
or otherwise disseminate to any other person or entity nor use in any manner
for either Seller's or any other person's or entity's purposes or benefit any
Protected Information, and not to use or aid others in using any such
Protected Information in competition with Purchaser or a Related Affiliate
except to the extent that disclosure is required by law. This obligation of
non-disclosure of information shall continue to exist for so long as such
information remains Protected Information.
(b) If, at the time of enforcement of this Section 3.3, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area.
4. CERTAIN EVENTS. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and shall
be binding upon any person or entity to which legal or beneficial ownership
of such Shares shall pass, whether by operation of law or otherwise,
including, without limitation, such Stockholder's heirs, guardians,
administrators or successors or as a result of any divorce.
5. STOP TRANSFER. Each Stockholder agrees with, and covenants to,
Purchaser that such Stockholder shall not transfer, and shall not request
that the Company register the transfer (book-entry or otherwise) of, any
certificate or uncertificated interest representing any of such Stockholder's
Shares, unless such transfer is made in compliance with this Agreement.
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6. TERMINATION. The obligations of the Stockholders under Section 2.2
shall terminate concurrently with termination of the Purchase Agreement in
accordance with Section 12.1 thereof and the obligations of the Stockholders
under Sections 2.1, 3.1, 3.2 and 5 shall terminate upon the first to occur of
(i) September 15, 1998, and (ii) the Closing. The "Termination Date" for
purposes of this Agreement with respect to the termination of the
Stockholders' obligations pursuant to any Section hereof shall mean the date
on which the Stockholders' obligations under such Section terminate pursuant
to the foregoing. The obligations of the Stockholders under Section 3.3
shall terminate in the event that the Purchase Agreement is terminated in
accordance with Section 12.1 thereof. Except as set forth in this Section 6,
all other agreements and obligations of the parties hereto shall survive the
Closing and/or the Termination Date, as applicable.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT; ASSIGNMENT. (a) This Agreement, together
with the Schedules attached hereto and the definitions in the Purchase
Agreement, represent the entire agreement and understanding of the parties
hereto with reference to the transactions contemplated herein and therein,
and no representations, warranties or covenants have been made in connection
with this Agreement other than those expressly set forth herein. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements among the parties relating to
the subject matter of this Agreement and all prior drafts thereof, all of
which are merged into this Agreement.
(b) This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors, heirs,
representatives and assigns, as the case may be; provided, however, that no
party shall assign or delegate this Agreement or any of the rights or
obligations created hereunder without the prior written consent of the other
party. Notwithstanding the foregoing, Purchaser shall have the unrestricted
right to assign this Agreement and all or any part of its rights hereunder to
any Affiliate of Purchaser, but in such event Purchaser shall remain fully
liable for the performance of all of such obligations in the manner
prescribed in this Agreement. Nothing in this Agreement shall confer upon
any person or entity not a party to this Agreement, or the legal
representatives of such person or entity, any rights (including, without
limitation, rights as a third party beneficiary) or remedies of any nature or
kind whatsoever under or by reason of this Agreement.
7.2 AMENDMENTS. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived, and
consents may be provided, only by a written instrument signed by Purchaser
and Stockholders or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof; nor shall any
waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such
right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party
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may otherwise have at law or in equity. Notwithstanding the foregoing,
Schedule I may be supplemented by Purchaser by adding the name and other
relevant information concerning any stockholder of the Company who is or
agrees to be bound by the terms of this Agreement without the agreement of
any other party hereto, and thereafter such added stockholder shall be
treated as a "Stockholder" for all purposes of this Agreement.
7.3 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopier or facsimile or
similar writing), shall be given to such party at its address or facsimile
number set forth below or at such other addresses as shall be furnished by
any party by like notice to the others. Except as otherwise expressly
provided herein, each such notice, request or other communication shall be
effective upon the earlier of (i) actual receipt, and (ii) receipt of
confirmation of delivery, in each case at the address specified in this
Section. Any notice, request or communication delivered by telecopier,
facsimile or similar means shall be confirmed by hard copy delivered as soon
as practicable.
(a) if to Purchaser, to:
Xxxx Xxx Corporation
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx Xxxxx
Senior Vice President, Secretary
and General Counsel
Fax No. 000-000-0000
(b) if to any Stockholder, to:
The Aristotle Corporation
c/o Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Stanford X. Xxxxxxx, Xx.
Fax No. 000-000-0000
or such other address or persons as the parties may from time to time
designate in writing in the manner provided in this Section.
7.4 GOVERNING LAW; CONSENT TO JURISDICTION; VENUE. This Agreement
shall be governed by, and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Delaware; provided,
however, that any interpretation or application of Section 3.3(d) shall be
governed by the Illinois Trade Secret Act. As a further inducement to
Purchaser to enter into this Agreement and the Additional Documents, and in
consideration thereof, Stockholders covenant and agree (i) that any state
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or federal court within New Castle County, Delaware shall have exclusive
jurisdiction of any action or proceeding relating to, or arising under or in
connection with this Agreement and the Additional Documents and the
Stockholders consent to personal jurisdiction of such courts and waive any
objection to such courts' jurisdiction, (ii) that service of any summons and
complaint or other process in any such action or proceeding may be made by
registered or certified mail directed to each Stockholder, as the case may
be, at their respective addresses set forth in Section 6.3 above, and service
so made shall be deemed to be completed upon the earlier of actual receipt or
three days after the same shall have been posted as aforesaid, the
Stockholders hereby waiving personal service thereof. The parties hereto
agree that any claim or suit between or among any of the parties hereto
relating to or arising under or in connection with this Agreement or any of
the Additional Documents may only be brought in and decided by the state or
federal courts located in the County of New Castle, State of Delaware, such
courts being a proper forum in which to adjudicate such claim or suit, and
each party hereby waives any objection to each such venue and waives any
claim that such claim or suit has been brought in an inconvenient forum.
7.5 ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that in addition to any other remedy at law or in
equity, the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
7.6 COUNTERPARTS; TERMS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement. All references
herein to Sections, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require. All
references to singular or plural or masculine or feminine shall include the
other as the context may require.
7.7 DESCRIPTIVE HEADINGS. The section headings contained in this
Agreement are solely for convenience of reference and shall not affect the
meaning or interpretation of this Agreement or of any term or provision
hereof.
7.8 SEVERABILITY. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term
or provision hereof.
7.9 DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(a) "beneficially own" or "beneficial ownership" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of
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the same securities by the same holder, securities beneficially owned by a
person shall include securities beneficially owned by all other persons with
whom such person would constitute a "group" as described in Section 13(d)(3)
of the Exchange Act.
(b) "Permitted Transferees" means, with respect to a
Stockholder, any of the following persons: (i) the spouse of such
Stockholder, provided that at all relevant times of determination such
Stockholder is not separated or divorced from, or is not involved in
separation or divorce proceedings with, such spouse; (ii) the issue of such
Stockholder; (iii) any charitable foundation or similar organization founded
by such Stockholder; (iv) a trust of which there are no principal
beneficiaries other than (A) such Stockholder, (B) such Stockholder's spouse
(provided that at all relevant times of determination such Stockholder is not
separated or divorced from, or is not involved in separation or divorce
proceedings with, such spouse), (C) the issue of such Stockholder, or (D) any
charitable foundation or similar organization founded by such Stockholder;
(v) the legal representative of such Stockholder in the event such
Stockholder becomes mentally incompetent; and (vi) the beneficiaries under
(A) the will of such Stockholder or the will of such Stockholder's spouse, or
(B) a trust described in clause (iv) above.
(c) "person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization
or other entity.
(d) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
7.10 STOCKHOLDER CAPACITY. Notwithstanding anything herein to the
contrary, no person executing this Agreement who is, or becomes during the
term hereof, a director of the Company makes any agreement or understanding
herein in his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or her
fiduciary duties as a director of the Company. Each Stockholder has executed
this Agreement solely in his or her capacity as the record or beneficial
holder of such Stockholder's Shares.
7.11 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
7.12 FURTHER ASSURANCES. Each Stockholder and Purchaser shall
execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the
transactions contemplated hereby.
7.13 DOCUMENTATION. This Agreement was initially prepared by
Purchaser's legal counsel as a matter of convenience only, and such documents
have been thoroughly reviewed by Stockholders and their respective legal
counsel and the input of
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Stockholders and their legal counsel was properly considered, and, therefore,
no interpretation will be made in favor of any of the parties or signatories
or any of their Affiliates with respect to this Agreement for the reason that
such documents were prepared by Purchaser's legal counsel.
7.14 WAIVERS OF TRIAL BY JURY. STOCKHOLDERS AND PURCHASER HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE ADDITIONAL
DOCUMENTS, AND CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS
IS DEEMED APPROPRIATE BY THE COURT.
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IN WITNESS WHEREOF, Purchaser and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
XXXX XXX CORPORATION, a Maryland corporation
By: /s/ Xxxx XxXxxxxxxx
-------------------------------------
Name: Xxxx XxXxxxxxxx
Title: Senior Vice President
STOCKHOLDERS:
CHAPARRAL INTERNATIONAL Re, a Turks
and Caicos Islands Co.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
/s/ Xxxx Xxxxxxxx
----------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx-Xxxx
----------------------------------------
Xxxxx Xxxxxx-Xxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Fair
----------------------------------------
Xxxxxxx Fair
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GENEVE CORPORATION, as parent of Chaparral
International Re,
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
The undersigned hereby acknowledges the terms of this Agreement and
covenants not to permit the registration of any transfer in violation of
Section 5 hereof.
THE ARISTOTLE CORPORATION
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman
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SCHEDULE I
Name Shares
---- ------
Chaparral International Re* 568,131*
Xxxx Xxxxxxxx 38,827 Common Stock
Xxxxx Xxxxxx-Xxxx 29,226 Common Stock
Xxxxxx Xxxxx 8,327 Common Stock
Xxxxxxx Fair 25,900 Common Stock
* Geneve Corporation, the parent of Chaparral International Re, claims
beneficial ownership of these shares, 489,131 of which are Series E
Convertible Preferred Stock, $.01 par value per share, and 79,000 of which
are Common Stock.
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