Exhibit 2.1
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STOCK PURCHASE AGREEMENT
Dated as of July 5, 2004
by and between
FRANKLIN CAPITAL CORPORATION
and
QUINCE ASSOCIATES, LP
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of July 5,
2004, by and between FRANKLIN CAPITAL CORPORATION, a Delaware corporation (the
"Seller"), and QUINCE ASSOCIATES, LP, a Maryland limited partnership (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Stock Purchase
Agreement (the "Purchase Agreement"), dated as of June 30, 2004, the Seller sold
and the Purchaser purchased, 200,000 shares (the "Excelsior Shares") of the
common stock, $.01 par value, of Excelsior Radio Networks, Inc., a Delaware
corporation ("Excelsior"), for a price of $2.50 per share, or an aggregate price
of $500,000; and
WHEREAS, the Seller proposes to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, (i) 650,000 shares of Excelsior
Common Stock, representing all of the shares of Excelsior Common Stock
beneficially owned by the Seller (the "Remainder Shares") for a price of $2.50
per share and (ii) warrants (the "Warrants") issued on or about (x) October 1,
2002, exercisable for 74,232 shares of Excelsior Common Stock at an exercise
price of $1.20 per share and (y) August 28, 2001, exercisable for 12,879 shares
of Excelsior Common Stock at an exercise price of $1.125 per share, for a price
of $2.50 per share minus the per share exercise price payable under each of the
Warrants, or an aggregate price of $1,739,210 (the "Initial Purchase Price"),
subject to adjustment as provided in Article II (as so adjusted, the "Purchase
Price")(the Warrants and the Remainder Shares are hereinafter sometimes referred
to as the "Acquired Securities").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ACQUIRED SECURITIES
SECTION 1.1 Purchase and Sale of Acquired Securities. Subject to the terms and
conditions set forth in this Agreement, the Seller agrees to sell to the
Purchaser and the Purchaser agrees to purchase from the Seller the Acquired
Securities. The Initial Purchase Price shall be paid in cash at the Closing
(hereinafter defined).
SECTION 1.2 The Closing. (a) The purchase and sale of the Acquired Securities
will take place at a closing (the "Closing") to be held at the offices of
Meltzer, Lippe, Xxxxxxxxx & Breitstone, LLP, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxx
Xxxx 00000. The Closing shall occur at the time agreed to by the Purchaser and
the Seller after the holders of the requisite number of shares of capital stock
of the Seller shall have approved this Agreement and the transactions
contemplated hereby; provided, that, in no event shall the Closing occur later
than December 31,
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2004. In connection with requisite Seller shareholder approval, except as may be
prohibited by applicable law, the Seller's Proxy Statement shall include a
statement to the effect that the Seller's Board of Directors recommends that the
Seller's shareholders vote in favor of the approval of this Agreement and the
transactions contemplated hereby.
(b) At the Closing, the Purchaser shall deliver by certified or bank check
or by wire transfer to the account number designated by the Seller, same day
funds (federal funds) in an amount equal to the Initial Purchase Price.
(c) At the Closing, the Seller shall deliver to the Purchaser, against
payment of the Initial Purchase Price, (x) certificates representing the number
of Remainder Shares purchased by the Purchaser from the Seller and (y) the
Warrants, endorsed in blank or accompanied by a blank stock power or assignment,
as the case may be, duly executed by the Seller.
ARTICLE II
ADDITIONAL PURCHASE PRICE
SECTION 2.1 Sale, Transfer or Exchange of Acquired Securities by Purchaser. Upon
the occurrence of one or more Liquidity Events (as defined in Section 2.2):
(i) at any time on or prior to the one (1) year anniversary of the
Closing, resulting in proceeds of such Liquidity Event, net of out
of pocket expenses reasonably incurred in connection with the
receipt thereof (collectively "Net Proceeds") in excess of $3.00 per
share,
(ii) at any time from and after the one (1) year anniversary of the
Closing and prior to the two (2) year anniversary of the Closing,
resulting in Net Proceeds in excess of $3.50 per share,
(iii) at any time from and after the two (2) year anniversary of the
Closing and prior to the three (3) year anniversary of the Closing,
resulting in Net Proceeds in excess of $4.00 per share,
(iv) at any time from and after the three (3) year anniversary of the
Closing and prior to the four (4) year anniversary of the Closing,
resulting in Net Proceeds in excess of $4.50 per share, or
(v) at any time from and after the four (4) year anniversary of the
Closing and prior to the five (5) year anniversary of the Closing,
resulting in Net Proceeds in excess of $5.00 per share,
the Purchaser shall pay to the Seller, as additional consideration for the sale
of the Acquired Securities, an amount per share equal to eighty (80%) of the Net
Proceeds in excess of the per share amounts set forth above, in accordance with
the following provisions hereof:
(a) In the event a Liquidity Event shall occur with respect to less than
all of the shares of Excelsior Common Stock owned by the Purchaser, the
provisions of this Article II shall apply to that number of the shares of
Excelsior Common Stock owned by the Purchaser as to which a Liquidity Event
shall have occurred which shall be equal to the product of 937,111 shares
multiplied by a fraction, the numerator of which shall be the number of shares
of Excelsior Common Stock as to which the Liquidity Event occurred and the
denominator of which shall be
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the total number of shares of Excelsior Common Stock owned by the Purchaser
immediately prior to the Liquidity Event; the provisions of this subsection (a)
shall apply to subsequent Liquidity Events, until 937,111 shares of Excelsior
Common Stock have been accounted for on behalf of the Seller;
(b) In the event that upon the occurrence of a Liquidity Event, there
shall be no proceeds with respect to any shares of Excelsior Common Stock then
held by the Purchaser (such as a recapitalization resulting in an exchange of
shares having par value for shares having no par value), then the provisions of
this Article II shall apply to the securities received upon such transaction to
the same extent as if such securities were shares of Excelsior Common Stock;
(c) As used herein, "proceeds" from a Liquidity Event means the aggregate
consideration received by the Purchaser, whether in cash, securities, property
or any other form. For the purposes hereof, consideration in any form other than
cash shall be valued at the value ascribed to it in the Liquidity Event, or if
no such value shall have been so ascribed, at its fair market value as of the
date of payment or distribution to the Purchaser, as determined in good faith by
the general partners (or other appropriate governing body) of the Purchaser,
except for the value of consideration in the form of securities, notes or other
evidences of indebtedness, which shall be determined as follows:
(i) the fair market value of any security which is publicly traded
("Marketable Securities") shall be deemed to be the average of the daily closing
prices for the 15 consecutive business days preceding the day of distribution;
the closing price shall be the last reported sales price regular way or, if no
such reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the principal securities
exchange on which the security is listed or admitted to trading, or if not
listed or admitted to trading on any such exchange, the average of the highest
reported bid and lowest reported asked prices as furnished by the National
Association of Securities Dealers, Inc.'s Automated Quotation system, or the
nearest comparable system;
(ii) the fair market value of any security which cannot be
determined pursuant to clause (i) above ("Non-Marketable Securities" and,
together with the Marketable Securities, collectively "Securities") shall be as
determined in good faith by the general partners (or other appropriate governing
body) of the Purchaser; and
(iii) the fair market value of any note, debenture or other evidence
of indebtedness (collectively, "Notes") shall be the outstanding principal
amount thereof as of the day of distribution.
(d) The form of payment to be made to the Seller shall be as follows:
(i) to the extent that the Net Proceeds are paid to the Purchaser in
cash, the payment due to the Seller shall be made in cash;
(ii) to the extent that the Net Proceeds are paid to the Purchaser
in the form of Notes, the payment due to the Seller shall be made by delivery,
at the option of the Purchaser, either of (A) the Notes in kind (including the
rights of the Purchaser in and to any security
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agreements which may have been issued in respect thereof) or (B) payments on the
Notes, in cash as and when received by the Purchaser in payment thereof,
including interest, penalties and fees and any other cash payments received in
respect thereof;
(iii) to the extent that the Net Proceeds are paid to the Purchaser
in the form of Securities (valued as provided in subsection (c) above), the
payment due to the Seller shall be made by delivery of such Securities; and
(iv) to the extent that the Net Proceeds are paid to the Purchaser
in the form of other property ("Other Property"), the payment due to the Seller
shall be made by delivery of such Other Property;
provided, however, that, to the extent Non-Marketable Securities or Other
Property would otherwise be delivered to the Seller but for this proviso, the
Purchaser shall be obligated in lieu thereof to pay the fair market value of
such Non-Marketable Securities and Other Property to the Seller in cash (for
purposes hereof, "Equivalent Cash"), provided further, however, that the
Purchaser shall only be obligated to deliver Equivalent Cash to the Seller with
respect to Non-Marketable Securities and Other Property to the extent that the
total of Equivalent Cash does not exceed $1,000,000, and the Purchaser shall
deliver such Non-Marketable Securities and Other Property to the Seller in
excess of such amount.
(e) As used herein, "Excelsior Common Stock" means (i) shares of Common
Stock, par value $.01 per share, of Excelsior, (ii) options or warrants to
purchase or rights to subscribe for shares of Common Stock of Excelsior, (iii)
any securities by their terms convertible into or exchangeable for shares of
Common Stock of Excelsior, and (iv) options or warrants to purchase or rights to
subscribe for securities by their terms convertible or exchangeable for shares
of Common Stock of Excelsior.
(f) All Net Proceeds payable to the Seller pursuant to this Article II
shall be paid by the Purchaser as promptly as possible after receipt thereof by
the Purchaser.
(g) If a state of facts shall occur which, without being specifically
controlled by the provisions of this Article II, would not fairly protect the
rights of the Seller to receive additional consideration for the sale of its
Acquired Securities in accordance with the essential intent and principles of
such provisions, then the Purchaser and the Seller agree to act in good faith to
make an adjustment in the application of such provisions, in accordance with
such essential intent and principles, so as to protect such rights to receive
additional consideration. Without limiting the generality of the foregoing, the
provisions of this Article II shall apply, in the case of any Liquidity Event,
whether the shares of Excelsior Common Stock are then owned by the Purchaser or
any of its Affiliates, or any of their respective officers, directors,
shareholders, employees or other related parties.
(h) As used herein, "Affiliate" means, with respect to any person or
entity, any person or entity that, directly or indirectly, controls, is
controlled by or is under common control with such person or entity. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect
to any person or entity, means the possession, directly or indirectly, of the
power to direct
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or cause the direction of the management and policies of such person or entity,
whether through the ownership of voting securities, by contract or otherwise.
SECTION 2.2 Liquidity Event. For the purposes of this Article II, a "Liquidity
Event" shall mean any of the following:
(a) any sale, exchange or transfer by the Purchaser of shares of Excelsior
Common Stock, including without limitation in a public offering;
(b) any acquisition of Excelsior by means of a merger or other form of
corporate reorganization in which outstanding shares of Excelsior are exchanged
for securities or other consideration issued, or caused to be issued, by the
acquiring corporation or other entity or any subsidiary thereof (other than a
mere reincorporation transaction);
(c) a sale of all or substantially all of the assets of Excelsior,
followed or accompanied by a distribution or dividend to its shareholders or a
Liquidation (as defined below), or
(d) the liquidation, dissolution or winding up of Excelsior, whether
voluntary or involuntary, resulting in the distribution of any of the assets or
surplus funds of Excelsior to the holders of shares of Excelsior Common Stock (a
"Liquidation").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
SECTION 3.1 Ownership and Transfer of Acquired Securities. The Seller is the
record and beneficial owner of the Acquired Securities, free and clear of any
and all Liens except for the restrictions set forth in Sections 8.3, 8.4 and 8.5
of the Preferred Stock Purchase Agreement dated August 28, 2001 by and between
Excelsior and the other parties thereto (the "Contract Rights"). The Seller has
the power and authority to sell, transfer, assign and deliver the Acquired
Securities as provided in this Agreement, and such delivery will convey to the
Purchaser good and marketable title to the Acquired Securities, free and clear
of any and all Liens and restrictions on transfer except for the Contract
Rights. As used herein "Lien" means any lien, pledge, mortgage, deed of trust,
security interest, claim, lease, charge, option, right of first offer, right of
first refusal, pre-emptive right, easement, servitude, transfer restriction of
any kind, including, without limitation, under any shareholder or similar
agreement, encumbrance, any other third party rights of any kind or any other
restriction or limitation whatsoever.
SECTION 3.2 Organization. The Seller is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
SECTION 3.3 Binding Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Seller and is a valid and binding
agreement of the Seller enforceable against it in accordance with its terms,
subject to applicable bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally.
SECTION 3.4 No Breach. The execution, delivery and performance by the Seller of
this Agreement and the consummation by the Seller of the transactions
contemplated hereby do not, with or without the giving of notice or the passage
of time or both, (a) violate the provisions of any law, rule or regulation
applicable to the Seller; (b) violate the Certificate of Incorporation or
by-laws of the Seller or any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to the Seller or the Acquired
Securities; or (c) conflict with or result in a material breach or termination
of, or constitute a material default under, any indenture, mortgage, deed of
trust or other instrument or agreement to which either the Seller or Excelsior
is a party or by which any of the Acquired Securities is or may be bound.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
SECTION 4.1 Investment Intention. (a)The Purchaser is acquiring the Acquired
Securities for its own account, for investment purposes only and not with a view
to the distribution (as such term is used in Section 2(11) of the Securities Act
of 1933, as amended (the "Securities Act")) thereof. The Purchaser understands
that the Acquired Securities have not been registered under the Securities Act
and cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available.
(b) The Purchaser is (i) an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Acquired Securities, and (iv) able to afford the
loss of its investment in the Acquired Securities.
(c) The Purchaser understands that the Acquired Securities are being
offered and sold by the Seller in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Seller is relying upon the accuracy of, and the
Purchaser's compliance with, the Purchaser's representations, warranties and
covenants set forth in this Agreement to determine the availability of such
exemption and the eligibility of the Purchaser to purchase the Acquired
Securities.
(d) The Purchaser acknowledges that in making its decision to purchase the
Acquired Securities it has been given an opportunity to ask questions of and to
receive answers from Excelsior's executive officers, directors and management
personnel concerning the terms and conditions of the private sale of the
Acquired Securities by the Seller.
(e) The Purchaser understands that the Acquired Securities have not been
approved or disapproved by the Securities and Exchange Commission or any state,
securities commission and that the foregoing authorities have not reviewed any
documents or instruments in connection
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with the offer and sale to it of the Acquired Securities, and have not confirmed
or determined the adequacy or accuracy of any such documents of instruments.
SECTION 4.2 Binding Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Purchaser and is a valid and binding
agreement of the Purchaser enforceable against it in accordance with is terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally.
SECTION 4.3 No Breach. The execution, delivery and performance by the Purchaser
of this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby do not, with or without the giving of notice or the passage
of time or both, (a) violate the provisions of any law, rule or regulation
applicable to the Purchaser, (b) violate the Operating Agreement of the
Purchaser or any judgment, decree, order or award of any court, governmental
body or arbitrator applicable to the Purchaser, or (c) conflict with or result
in a material breach or termination of, or constitute a material default under,
any indenture, mortgage, deed of trust or other instrument or agreement to which
the Purchaser is a party.
ARTICLE V
INDEMNIFICATION
SECTION 5.1 Indemnification by the Seller. From and after the date hereof, the
Seller shall indemnify and hold the Purchaser, its Affiliates, and their
respective directors, officers, employees, shareholders, members, partners,
agents, successor and assigns (collectively "Purchaser Claimants" and
individually "Purchaser Claimant") harmless, and defend each of them, from and
against any and all demands, claims, actions, liabilities, losses, costs,
damages or expenses whatsoever (including without limitation attorneys' fees and
expenses) (collectively, "Indemnified Claims") asserted against, imposed upon or
incurred by the Purchaser Claimants resulting from, attributable to or arising
out of any inaccuracy or breach, or, with respect to any third party, resulting
from, attributable to or arising out of any inaccuracy or alleged inaccuracy or
breach or alleged breach, of any representation, warranty or covenant of the
Seller contained herein. The Purchaser Claimants' right to indemnification shall
not be limited or affected in any way by any investigation of the Seller or of
the Company by the Purchaser prior to the date hereof.
SECTION 5.2 Indemnification by the Purchaser. From and after the date
hereof, the Purchaser shall indemnify and hold the Seller, its Affiliates, and
their respective directors, officers, employees, shareholders, members,
partners, agents, successor and assigns (collectively "Seller Claimants" and
individually "Seller Claimant") harmless, and defend each of them, from and
against any and all Indemnified Claims asserted against, imposed upon or
incurred by the Seller Claimants resulting from, attributable to or arising out
of any inaccuracy or breach, or, with respect to any third party, resulting
from, attributable to or arising out of any inaccuracy or alleged inaccuracy or
breach or alleged breach, of any representation or warranty of the Purchaser
contained herein. The Seller Claimants' right to indemnification shall not be
limited or affected in any way by any investigation of the Purchaser by the
Seller prior to the date hereof.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Survival of Representations, Warranties and Covenants. The parties
hereto hereby agree that the representations, warranties and covenants contained
in this Agreement or in any certificate, document or instrument delivered in
connection herewith, shall survive the execution and delivery of this Agreement,
and the sale of the Acquired Securities hereunder, regardless of any
investigation made by the parties hereto.
SECTION 6.2 Expenses. The Seller and the Purchaser shall each bear its own
expenses incurred in connection with the negotiation and execution of this
Agreement and the consummation of the transaction contemplated hereby, it being
understood that in no event shall Excelsior bear any of such costs and expenses.
SECTION 6.3 Notices. All notices, advises and communications to be given or
otherwise made to any party to this Agreement shall be deemed to be sufficient
if contained in a written instrument delivered in person, by facsimile confirmed
by telecopier answer back, sent by air courier or sent by first class registered
or certified mail, postage prepaid, addressed to such party at the address set
forth below or at such other address as may hereafter be designated in writing
by the addressee to the other parties listed below:
If to the Seller: FRANKLIN CAPITAL CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Meltzer, Lippe, Xxxxxxxxx & Breitstone, LLP
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Purchaser: QUINCE ASSOCIATES, LP
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 0-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices, advises and communications shall be deemed to have been
received, (a) in the case of personal delivery, on the date of such delivery,
(b) in the case of delivery by facsimile, on the date of such delivery and
receipt of telecopier answer back, (c) in the case of delivery by air courier,
on the business day following the day of dispatch and (d) in the case of
mailing, on the third business day following such mailing.
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SECTION 6.4 Brokers; Finders. The Seller and the Purchaser each represents and
warrants that it has dealt with no broker, finder, commission agent or advisor
in connection with the transactions contemplated by this Agreement. The Seller
and the Purchaser each agrees to indemnify, defend and hold harmless the other
against any brokerage fee, commission, finder's fee, or financial advisory fee
due to any person, firm or corporation acting on the indemnifying party's or the
indemnifying party's principals or employees behalf in connection with the
transactions contemplated by this Agreement.
SECTION 6.5 Amendment; Waiver. Neither this Agreement, nor any provision hereof,
may be amended, modified, supplemented or waived, except by a written instrument
executed by the Seller and the Purchaser.
SECTION 6.6 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
SECTION 6.7 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 any term or prevision hereof.
SECTION 6.8 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof and thereof and supersede and cancel all prior representations,
alleged warranties, statements, negotiations, undertakings, letters,
acceptances, understandings, contracts and communications, whether verbal or
written, among the parties hereto and thereto or their respective agents with
respect to or in connection with the subject matter hereof.
SECTION 6.9 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
permitted successors and assigns of the parties hereto. No party hereto may
assign its rights or delegate its obligations under this Agreement without the
prior written consent of the other party hereto, except that the Purchaser or
the Seller may assign this Agreement to any of its Affiliates; provided that the
assignor shall continue to be liable for all terms and provisions of this
Agreement.
SECTION 6.10 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED THEREIN BY AND AMONG RESIDENTS OF SUCH STATE.
SECTION 6.11 Consent to Jurisdiction and Service of Process.
(a) THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT OR STATE COURT IN
THE STATE OF NEW YORK, COUNTY OF NEW YORK
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OR COUNTY OF NASSAU, HAVING SUBJECT MATTER JURISDICTION OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE PURCHASER AND THE
SELLER HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE
ANY OBJECTION EACH OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, PERSONAL JURISDICTION OF;
ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE PURCHASER TO BRING PROCEEDINGS AGAINST THE SELLER IN THE
COURTS OF ANY OTHER JURISDICTION.
(b) THE PURCHASER AND THE SELLER HEREBY AGREE THAT SERVICE OF THE SUMMONS
AND COMPLAINT AND ALL OTHER PROCESS WHICH MAY BE SERVED UPON EITHER PARTY IN ANY
SUCH SUIT, ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING BY REGISTERED MAIL,
RETURN RECEIPT REQUESTED, A COPY OF SUCH PROCESS TO SUCH PARTY AT THE ADDRESS TO
WHICH NOTICES TO SUCH PARTY ARE THEN TO BE SENT PURSUANT TO SECTION 6.3 HEREOF
AND THAT PERSONAL SERVICE OF PROCESS SHALL NOT BE REQUIRED. NOTHING HEREIN SHALL
BE CONSTRUED TO PROHIBIT SERVICE OF PROCESS BY ANY OTHER METHOD PERMITTED BY
LAW.
SECTION 6.12 Waiver of Jury Trial.
THE PURCHASER AND THE SELLER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DEALINGS BETWEEN OR AMONG THEM RELATING TO THE SUBJECT MATTER
OF THE TRANSACTION CONTEMPLATED HEREBY AND ANY RELATIONSHIP THAT IS BEING
ESTABLISHED AMONG ANY OF THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. THE PURCHASER AND THE SELLER ACKNOWLEDGE THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS, THE PURCHASER
AND THE SELLER FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, AND WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
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COURT, THE PURCHASER AND THE SELLER ALSO WAIVE ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE PURCHASER.
SECTION 6.13 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date written above.
SELLER:
FRANKLIN CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman
PURCHASER:
QUINCE ASSOCIATES, LP
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
President
