Exhibit 10.5
SUBSCRIPTION AGREEMENT
NEWS COMMUNICATIONS, INC. COMMON STOCK
News Communications, Inc.
000-00 Xxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
1. Application. The undersigned (the "Purchasers"), intending to be
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legally bound, hereby agree to purchase, at the request of the President and
Chief Executive Officer made on behalf of the Company, on January 31, 2000 an
aggregate number of shares (the "Shares") of the common stock (the "Common
Stock") of News Communications, Inc. (the "Company"), at a purchase price of
$1.75 per Share determined by dividing (i) the unpaid principal balance of the
Company's $2,500,000 indebtedness to X.X. Xxxxx Investment Banking Corp. and
Rothschild Recovery Fund L.P., together with accrued and unpaid interest thereon
by (ii) $1.75. Prior to the closing, the Purchasers shall agree as to the
allocation of the number of shares to be purchased by each them and this
Agreement shall be amended in accordance with such understanding.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES ACT OF
ANY STATE. THEY ARE BEING OFFERED PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SECTION 4(2) OF THE SECURITIES ACT. THE SECURITIES MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS THE SECURITIES ARE REGISTERED
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, OR SUCH
SALES AND TRANSFERS ARE MADE PURSUANT TO AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS.
2. Representations and Warranties of the Purchasers. Each of the
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Purchasers represents and warrants, severally and not jointly, to the Company as
follows:
(a) Each Purchaser, in making the decision to enter into this
Agreement and to commit to purchase the Shares, has relied upon independent
investigations made by him and his representatives, if any. No oral
representations have been made or oral information furnished to any
Purchaser in connection with the commitment to purchase of the Shares; and
each Purchaser and/or his advisors have had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Shares.
(b) Each Purchaser has been or will be supplied with or has and
will have sufficient access to all information, including financial
statements and other financial information of the Company, and has been
afforded with an opportunity to ask questions of and receive answers
concerning information to which a reasonable investor would attach
significance in making investment decisions, so that as a reasonable
investor the undersigned has been able to make the undersigned's decision
to commit to purchase the Shares.
(c) As applicable, each Purchaser is able and will be able to
bear the substantial economic risks of an investment in the Shares for an
indefinite period of time, has no need for liquidity in such investment,
has made and will have made commitments to investments that are not readily
marketable which are reasonable in relation to the undersigned's net worth
and, at the present time, could afford a complete loss of such investment.
(d) Each Purchaser has such knowledge and experience in
financial, tax and business matters so as to enable him to utilize the
information made available to him in connection with the commitment to
purchase and the purchase of the Shares to evaluate the merits and risks of
an investment in the Shares and to make an informed investment decision
with respect thereto.
(e) Each Purchaser acknowledges that the purchase of the Shares
involves a high degree of risk and further acknowledges that he can bear
the economic risk of the purchase of the Shares, including the total loss
of his investment. No Purchaser is relying on the Company with respect to
the tax and other economic considerations of an investment in the Shares,
and each Purchaser has relied on the advice of, or has consulted with, only
his own advisor(s).
(g) Each Purchaser has and will have full right and power to
perform pursuant to this Subscription Agreement and make an investment in
the Company and is authorized and otherwise duly qualified to purchase and
hold the Shares and to enter into this Subscription Agreement.
(h) Each Purchaser will be purchasing the Shares for his own
account, for investment and not with a view to resale or distribution
except in compliance with the Securities Act.
(i) Each Purchaser understands that the Shares are being offered
and sold in reliance on an exemption from the registration requirements of
federal and state securities laws under Section 4(2) of the Securities Act
and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings
of each Purchaser set forth herein in order to determine the applicability
of such exemptions and the suitability of each Purchaser to acquire the
Shares. The representations, warranties and agreements contained herein
are true and correct as of the date hereof and may be relied upon by the
Company, and the undersigned will notify the Company immediately of any
adverse change in any such
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representations and warranties which may occur prior to the acceptance of
the subscription and will promptly send the Company written confirmation
thereof. The representations, warranties and agreements of each Purchaser
contained herein shall survive the execution and delivery of this
Subscription Agreement and the purchase of the Shares.
(j) No Purchaser nor any of his respective affiliates or agents
will, directly or indirectly, maintain any short position in the Shares or
any other securities of the Company for so long as any of the Shares are
owned by the undersigned.
3. Accredited Investor Status. Each Purchaser further represents and
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warrants that he is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
4. Registration Rights.
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(a) Agreement to Register. At any time from the date of purchase of
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the Shares until the fifth anniversary of the date hereof, at the request
of the Purchasers holding a majority of the Shares (the "Registration
Request"), the Company shall prepare and use its best efforts to file with
the Securities and Exchange Commission (the "SEC") within 60 days of the
Registration Request a registration statement covering the resale of the
Shares (each, a "Registration Statement"), shall use its best efforts to
cause such Registration Statement to become effective as soon as possible
thereafter and to do all other things necessary to cause such Registration
Statement to be declared effective by the SEC (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky and other
state securities laws in such jurisdictions as the Purchasers may
reasonably request, and appropriate compliance with applicable regulations
issued under the Securities Act) and as would permit or facilitate the sale
and distribution of all or such portion of such Shares. The Purchasers
shall have the right to make such Registration Request on one occasion.
(b) If the Purchasers of a majority of the Shares desire to distribute
the Shares by means of an underwriting, they shall make a Registration
Request and so advise the Company and shall select an underwriter
reasonably acceptable to the Company. The Company and the Purchasers
proposing to distribute their Shares through such underwriter shall enter
into an underwriting agreement in customary form with the underwriter
selected for such underwriting by the Company. The Company shall not be
required to effect more than two underwritten offerings of Shares. The
Company shall pay all expenses, other than underwriters' discounts and
commissions and fees and disbursements of experts and counsel retained by
the undersigned, relating to an underwriting of the Shares covered by the
first request, and the Purchasers requesting an underwriting shall pay all
reasonable registration expenses arising from the second such underwriting.
Notwithstanding any other provision of this Section 4, if the underwriter
advises the Purchasers in writing that marketing factors require a
limitation on the number of shares to be underwritten, the number of Shares
that may be included in the registration and underwriting shall be
allocated among the Purchasers, in proportion (as
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nearly as practicable) to the amount of Shares of the Company owned by each
Purchaser; provided, however, that the number of Shares to be included in
such underwriting shall not be reduced unless all other securities are
first entirely excluded from the underwriting.
(c) If, at any time during the five-year period following the
date hereof, the Company proposes to file with the SEC a Registration
Statement with respect to any class of securities (other than pursuant to a
registration statement on Forms S-4 or S-8 or any successor form) under the
Securities Act, the Company shall notify the Purchasers at least twenty
(20) days prior to the filing of the Registration Statement and will offer
to include all or any portion of the Shares in the Registration Statement.
At the written request of any of the Purchasers, delivered to the Company
within ten (10) days after the date of the Company's notice, the Purchaser
shall state the number of Shares that he wishes to sell under the proposed
Registration Statement.
(d) If the Registration Statement is filed with respect to an
underwritten offering, the Company and the Purchasers shall enter into an
underwriting agreement in customary form with the underwriter selected for
such underwriting by the Company. The Company shall pay all expenses,
other than underwriters' discounts and commissions and fees and
disbursements of experts and counsel retained by the Purchasers, relating
to an underwriting of the Shares.
(e) The Purchasers, if reasonably requested by the Company or by
the underwriter with respect to any public offering, shall agree not to
sell, make any short sale of, loan, grant any options for the purchase of,
or otherwise dispose of any of the Shares (other than those included in the
Registration Statement) without the prior written consent of the Company or
such underwriters, as the case may be, for such period of time (not to
exceed one hundred eighty (180) days), from the effective date of such
Registration Statement, or the commencement of the offering, as applicable,
as may be requested by the underwriters, provided that all other holders of
the class of securities being registered pursuant to the Registration
Statement shall make the same agreements as those made by the Purchasers
under this section 4(e);
(f) The Purchasers shall promptly provide the Company with such
non-confidential and non-proprietary information as it shall reasonably
request and that is available to the Purchasers in order to prepare the
Registration Statement;
(g) All reasonable and necessary expenses in connection with the
preparation of the Registration Statement, including, without limitation,
any and all legal, accounting and filing fees, but not including fees and
disbursements of experts and counsel retained by the Purchasers or
underwriting discounts and commissions to be paid by the Purchasers, shall
be borne by the Company;
(h) The Company shall use its best efforts to cause the
Registration Statement to become effective, permitting the sale of the
Shares in accordance with the
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intended method or methods of distribution thereof, and pursuant thereto,
the Company shall as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement
relating on any appropriate form under the Securities Act, which form
shall be available for the sale of the Shares in accordance with the
intended method or methods of distribution thereof and use its best
efforts to cause such Registration Statement to become effective and
keep such Registration Statement effective in accordance with section
4(h)(ii) below;
(ii) prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be necessary
to keep the Registration effective until all such Shares are sold;
cause the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof as set forth in such Registration Statement or
supplement to the prospectus; provided, however, that the Company may,
from time to time, request that the Purchasers immediately discontinue
the disposition of the Shares if the Company determines, in the good
faith exercise of its reasonable business judgment, that the offering
and disposition of the Shares could materially interfere with bona
fide financing, acquisition or other material business plans of the
Company or would require disclosure of non-public information, the
premature disclosure of which could materially and adversely affect
the Company (it being acknowledged that the Company is not required to
disclose in such request any such transaction, plan or non-public
information), so long as the Company promptly after the disclosure of
such transaction, plan or non-public information complies with this
section 4(h)(ii);
(iii) notify the Purchasers and the underwriter, if any,
promptly, and (if requested by any such person) confirm such advice in
writing, (A) when the prospectus or any prospectus supplement or post-
effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the SEC for
amendments or supplements to the Registration Statement or the
prospectus or for additional information, (C) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (D)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation of any proceedings for such purpose and
(E) subject to the proviso below, of the happening of any event as a
result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact
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required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing
and, subject to section 4(g)(ii) above, at the request of any such
person, prepare and furnish to such person a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided, however, the
Company need not disclose the event if it otherwise has not disclosed
such event to the public;
(iv) if requested by the underwriter or any of the
Purchasers, promptly incorporate in a prospectus supplement or post-
effective amendment such information as the underwriter and the
Purchaser agree should be included therein relating to the plan of
distribution with respect to such Shares, including, without
limitation, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
offering of the Shares to be sold in such offering; and make all
required filings of such prospectus supplements or post-effective
amendments as soon as notified of the matters to be incorporated in
such prospectus supplements or post-effective amendments;
(v) deliver to the Purchasers and the underwriters, if any,
without charge, as many copies of the prospectus (including each
preliminary prospectus) in conformity with the requirement of the
Securities Act and any amendments or supplements thereto as such
persons may reasonably request and such other documents as they may
reasonably request to facilitate the prior sale or other disposition
of the Shares;
(vi) prior to any public offering of Shares, register or
qualify or cooperate with the Purchasers, or the underwriters, if any,
in connection with the registration or qualification of such Shares
for offer and sale under the securities or blue sky laws of such
jurisdictions as the Purchasers or underwriters, if any, reasonably
requests in writing and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Shares covered by the Registration Statement; provided, however, that
the Company shall not be required to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or would subject the
Company to any tax in any such jurisdiction where it is not then so
subject; and
(vii) with a view to making available the benefits of
certain rules and regulations of the SEC which may at any time permit
the sale of Shares to the public without registration, during such
time as a public market exists for its equity securities, the Company
agrees to:
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(A) make and keep public information available, as
those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date of the
first registration under the Securities Act filed by the Company
for an offering of its equity securities to the general public;
(B) use its best efforts to file with the SEC in a
timely manner all reports and other documents required of the
Company under the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (at any time after it
has become subject to such reporting requirements); and
(C) furnish to the Purchasers forthwith upon request a
written statement by the Company as to the Company's compliance
with the reporting requirements of said Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company and such other reports
and documents of the Company as the Purchasers may reasonably
request in availing itself of any rule or regulation of the SEC
allowing a holder to sell any such securities without
registration;
(i) Notwithstanding the provisions of this section 4 to the
contrary, the Company:
(i) may require the Purchasers to furnish to the Company
such information regarding the distribution of such securities as the
Company may from time to time reasonably request in writing, and the
Company may limit such registration rights to situations where a
proposed distribution of Shares is to be effected forthwith upon the
effectiveness of the Registration Statement; and
(ii) may require each of the Purchasers to covenant that he
has not taken, and will not take, directly or indirectly, any action
designed, or which might reasonably be expected, to cause or result
in, under the Exchange Act or otherwise, or which has caused or
resulted in, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares; and
(j) each Purchaser agrees by acquisition of such Shares that,
upon receipt of the request referred to in the proviso of section 4(h)(ii)
or of any notice from the Company of the happening of any event of the kind
described in section 4(h)(iii) hereof (other than as provided in section
4(h)(iii)(A) hereof), such Purchaser shall forthwith discontinue
disposition of Shares until he is advised in writing by the Company that
the use of the prospectus may be resumed, and has received copies of any
additional or supplemental documents or filings that are incorporated by
reference in the prospectus, and, if so directed by the Company, each
Purchaser shall deliver to the Company (at the Company's expense) all
copies other than permanent file copies then in the Purchaser's
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possession, of the prospectus covering such Shares current prior to the
time of receipt of such notice.
5. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the
Purchasers against any losses, claims, damages, liabilities or expenses,
joint or several, to which the Purchasers may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law
or regulations, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent of
the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, any preliminary
prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a
material fact required to be stated therein or necessary to make the
statements in any of them not misleading, (ii) in whole or in part, any
inaccuracy in the representations and warranties of the Company contained
herein, or (iii) any failure of the Company to perform its obligations
hereunder or under law; and will reimburse the Purchasers for any legal and
other expenses as such expenses are reasonably incurred by the Purchasers
in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Statement, any
preliminary prospectus, or any amendment or supplement thereto in reliance
upon and in conformity with information furnished to the Company by each of
the Purchasers expressly for the inclusion in any Registration Statement or
any preliminary prospectus. This indemnity agreement will be in addition
to any liability that the Company may otherwise have. The Company will
not, without the prior written consent of the Purchasers, settle or
compromise or consent to the entry of any judgment in any pending or
threatened action or claim or related cause of action or portion of such
cause of action in respect of which indemnification may be sought hereunder
(whether or not the Purchasers are parties to such action or claim), unless
such settlement, compromise or consent includes an unconditional release of
the Purchasers from all liability arising out of such action or claim (or
related cause of action or portion thereof).
(b) Each of the Purchasers, severally and not jointly, agrees to
indemnify and hold harmless each of the other Purchasers, the Company, each
of its directors, each of its officers who sign any Registration Statement,
and each person, if any, who controls the Company within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, or any such director, officer, or
controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or at
common law or
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otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Purchasers), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon (i) any
untrue or alleged untrue statement of any material fact contained any
Registration Statement, any preliminary prospectus, or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Registration Statement, any
preliminary prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with information furnished to the Company by a
Purchaser expressly for the use in any Registration Statement or any
preliminary prospectus; and will reimburse the Company, or any such
director, officer, or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer, or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. As to each Purchaser, in no event shall any indemnity under this
subsection (b) exceed the net proceeds from sale of the number of Shares
sold by such Purchaser. This indemnity agreement will be in addition to any
liability which each Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 5, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may have
to any indemnified party for contribution or otherwise than under the
indemnity agreement contained in this Section 5 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action
is brought against any indemnified party and such indemnified party seeks
or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with all other indemnifying parties similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the
preceding
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sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel, approved
by the Purchasers in the case of paragraph (a), representing the
indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) If the indemnification provided for in this Section 5 is
required but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under subsections (a),
(b) or (c) in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of any losses, claims, damages, liabilities or expenses referred to
herein (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company and the Purchasers from any other
persons, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and
directors of the Company who also may be liable for contribution) (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Purchasers from the offering of the Shares or any
public offering of the Shares, as the case may be or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
and the Purchasers in connection with the statements or omissions or
inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Purchasers, on the other, shall be deemed
to be in the same proportion as the total net proceeds from the sale of the
Shares (before deducting expenses) received by the Company bear to the
total compensation received by the Purchasers hereunder. The relative
fault of the Company and the Purchasers shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
or the inaccurate or the alleged inaccurate representation and/or warranty
relates to information supplied by the Company or the Purchasers and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in subsection (c) of this Section 5, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth
in subsection (c) of this Section 5 with respect to notice of commencement
of any actions shall apply if a claim for contribution is to be made under
this subsection (d); provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
subsection
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(c) for purposes of indemnification. The Company and the Purchasers agree
that it would not be just and equitable if contribution pursuant to this
Section 5 were determined solely by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in this Section 5. Notwithstanding the
provisions of this Section 5, the Purchasers shall not be required to
contribute any amount in excess of the amount of compensation received by
each of them. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
6. Miscellaneous.
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(a) This Agreement shall survive the death or disability of the
undersigned and shall be binding upon the undersigned's heirs, executors,
administrators, successors and permitted assigns.
(b) This Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto with respect to
the subject matter hereof and together supersede all prior discussions or
agreements in respect thereof.
(c) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute a single document.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Any dispute arising out
of or in connection with this Agreement shall be settled by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. The location of any hearing shall be New York, New York.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement this 28th
day of July, 1999.
Number of Shares Purchased: 129,400 /s/ Xxxxxx X. Xxxx, Xx.
---------------- -----------------------
Xxxxxx X. Xxxx, Xx.
Total Purchase Price: $226,450
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Number of Shares Purchased: 853,500 /s/ J. Xxxxxx Xxxxx
---------------- -------------------
J. Xxxxxx Xxxxx
Total Purchase Price: $1,493,625
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Number of Shares Purchased: 445,671 /s/ Xxxxxx X. Xxxxx
--------------- -------------------
Xxxxxx X. Xxxxx
Total Purchase Price: $779,924
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