STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated the 2nd day of
July, 1997, between BRIARCLIFF INTERNATIONAL LTD., a British Virgin Islands
corporation ("Seller"), and THE MARQUEE GROUP, INC., a Delaware corporation
("Buyer").
Recitals
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A. Seller owns 250 shares (the "Shares") of common stock, par value $1.00
("Common Stock") of ProServ, Inc., a Delaware corporation (the "Company").
B. Xxxxxx X. Dell ("Dell") and Buyer have entered into a Purchase and Sale
Agreement dated as of June 15, 1997 (the "Dell Agreement") pursuant to which
Dell has agreed to sell, among other things, 880 shares of Common Stock (the
"Dell Shares") to Buyer.
C. Seller desires to sell, and Buyer desires to purchase, the Shares for
the consideration and upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other
consideration, the receipt and sufficiency of which are acknowledged, the
parties agree as follows:
1. Purchase and Sale of Stock.
1.1. Agreement to Purchase and Sell. Upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as defined below),
Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Shares
without recourse, guaranty or representation (other than set forth in Section 2
hereof).
1.2. Purchase Price. In exchange for the Shares, Buyer agrees to pay to
Seller the sum of Three Million Dollars ($3,000,000.00) (the "Purchase Price").
1.3. Payment of Purchase Price. The Purchase Price shall be payable on
the Closing Date by wire transfer to Seller of the Purchase Price in
immediately available funds in accordance with instructions as shall have been
sent to Buyer at least two (2) business days prior to the Closing Date.
1.4. Closing. The closing of the purchase and sale of the Shares (the
"Closing") shall take place on the date (the "Closing Date") and at the time
and place of the closing of the purchase and sale of the Dell Shares which date
shall in no event be later than October 15, 1997 (the "Dell Closing Date").
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2. Seller Representations. Seller represents and warrants to Buyer that the
Shares are owned by Seller free and clear of all liens, encumbrances, charges,
assessments and adverse claims other than by reason of that certain Common
Stock Subscription and Shareholder Agreement (the "Subscription Agreement")
dated July 9, 1996, among the Company, Dell and the Seller.
3. Dell and Company Consent. By Side Agreement dated the date hereof among
Seller, Buyer, Dell and the Company, a copy of which is attached hereto and
incorporated herein as Exhibit D, each of Dell and the Company agrees with each
of the Buyer and Seller that each of Dell and the Company (i) consents to
Seller's sale and Buyer's purchase of the Shares under this Agreement, (ii)
waives any and all rights that any of Dell and the Company may have with
respect to the Shares under the Subscription Agreement, and (iii) agrees that
Seller's sale and Buyer's purchase of the Shares under this Agreement is made
in full compliance with the provisions of the Subscription Agreement.
4. Buyer Representations. Buyer represents and warrants to Seller that: (i)
Buyer is an "accredited investor," as defined in Rule 501 under the Securities
Act of 1933 (the "Securities Act"); (ii) Buyer is acquiring the Shares for
Buyer's own account for investment with no present intention of distributing or
reselling any such Shares with a view to any distribution within the meaning of
the Securities Act; (iii) Buyer has had the opportunity to ask questions of
Seller and of management of the Company regarding the Company and has received
all information reasonably requested by it; and (iv) Buyer understands that the
Shares have not been registered under the Securities Act or any state
securities law and that the certificate representing the Shares will bear an
appropriate restrictive legend, as well as a legend subjecting all transfers of
the Shares to the terms of the Subscription Agreement. Buyer agrees that it
will not, directly or indirectly, voluntarily offer, sell, pledge or otherwise
dispose of (or solicit any offers to purchase or otherwise acquire or take a
pledge of) any Shares unless (i) registered pursuant to the provisions of the
Securities Act and the applicable state securities laws, or (ii) an exemption
from registration is available under the Securities Act and the applicable
state securities laws. Buyer has full power and authority to enter into this
Agreement and to carry out the transactions contemplated herein. This Agreement
has been duly and validly executed and delivered by the Buyer, does not violate
any document or agreement, does not require filing with or consent of any
person and (assuming this Agreement is a legal, valid and binding obligation of
Seller) constitutes a legal, valid and binding obligation of Buyer enforceable
in accordance with its terms.
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5. Other Covenants and Agreements.
5.1. Indemnification by Seller. Upon the terms and subject to the
conditions set forth in this Section 5.1, Seller agrees to indemnify and hold
Buyer harmless against, and will reimburse Buyer on demand for, any payment,
loss, cost or expense (including reasonable attorney's fees) made or incurred
by or asserted against Buyer at any time after the Closing Date by a third
party in respect of any material breach of the Seller's representation and
warranty set forth in Section 2 hereof or from any material breach of
representation in Seller's certificate furnished to Buyer pursuant to Section
6.1.2 hereof, provided, however, that as a condition precedent hereto, the
Buyer shall have delivered written notice of any such claim to Seller prior to
the sixth month anniversary of the Closing Date.
5.2. Indemnification by Buyer. Upon the terms and subject to the
conditions set forth in this Section 5.2, Buyer agrees to indemnify and hold
Seller harmless against, and will reimburse Seller on demand for, any payment,
loss, cost or expense (including reasonable attorney's fees) made or incurred
by or asserted against Seller at any time after the Closing Date by a third
party in respect of any material breach of the Buyer's representations and
warranties set forth in Section 4 hereof or from any material breach of
representation in Buyer's certificate furnished to Seller pursuant to Section
6.2.2 hereof, provided, however, that as a condition precedent hereto, the
Seller shall have delivered written notice of any such claim to Buyer prior to
the sixth month anniversary of the Closing Date.
5.3. Taxes and Expenses.
5.3.1. All costs of transferring the Shares in accordance with this
Agreement, including recordation, transfer and documentary taxes and fees, and
any excise, sales or use taxes, shall be borne by Buyer. Sell will assume and
pay for its attorneys' fees in connection with the negotiation of this
Agreement.
5.3.2. Buyer will assume and pay all costs, liabilities and other
obligations incurred by Buyer in connection with the performance of and
compliance with all Transactions and other agreements and conditions contained
in this Agreement to be performed or complied with by Buyer, including legal
and accounting fees.
6. Conditions of Closing.
6.1. Buyer's Conditions of Closing. The obligation of Buyer to purchase
and pay for the Shares shall be subject to and conditioned upon the
satisfaction at the Closing of each of the following conditions:
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6.1.1. (RESERVED)
6.1.2. Seller shall have delivered to Buyer a Certificate of its
corporate Secretary certifying:
(a) Resolutions of its sole Director authorizing execution and
delivery of this Agreement and the performance of all transactions
contemplated hereby (the "Transactions");
(b) That the representation and warranty of Seller contained in
Section 2 of this Agreement is true and correct at and as of the Closing
Date; and
(c) The incumbency of its officers executing this Agreement and all
other documents and instruments executed on Seller's behalf.
6.1.3. Seller shall have delivered to Buyer the certificate
representing the Shares, duly endorsed for transfer or accompanied by
appropriate stock powers (in either case executed in blank or in favor of
Buyer).
6.1.4. As of the Closing Date, the approval and all consents from
third parties and governmental agencies required to consummate the Transactions
shall have been obtained.
6.1.5. As of the Closing Date, no suit, action, investigation,
inquiry or other proceeding by any governmental body or other person or legal
or administrative proceeding shall have been instituted or threatened which
questions the validity or legality of the Transactions or which could
reasonably be expected to adversely affect the ability of Buyer to consummate
such Transactions.
6.1.6. As of the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the Transactions or
any of them not be consummated as so provided, or imposing any material
conditions on the consummation of such Transactions by Buyer.
6.1.7. Seller shall have executed and delivered to Buyer a release
in favor of Buyer and the Company, in the form attached as Exhibit A.
6.1.8. The closing of the purchase and sale of the Dell Shares
under the Dell Agreement shall occur simultaneously with the Closing hereunder.
6.2. Seller's Conditions of Closing. The obligation of Seller to sell
the Shares shall be subject to and conditioned
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upon the satisfaction at the Closing of each of the following conditions:
6.2.1. (RESERVED)
6.2.2. Buyer shall have delivered to Seller a Certificate of its
corporate Secretary certifying:
(a) Resolutions of its Board of Directors authorizing execution and
delivery of this Agreement and the performance of all Transactions;
(b) That the representations and warranties of Buyer contained in
Section 4 of this Agreement are true and correct at and as of the Closing
Date; and
(c) The incumbency of its officers executing this Agreement and all
other documents and instruments executed on Buyer's behalf.
6.2.3. Buyer shall have effected payment of the Purchase Price in
accordance with the prior written instructions of Seller.
6.2.4. As of the Closing Date, the approval and all consents from
third parities and governmental agencies required to consummate the
Transactions shall have been obtained.
6.2.5. As of the Closing Date, no suit, action, investigation,
inquiry or other proceeding by any governmental body or other person or legal
or administrative proceeding shall have been instituted or threatened which
questions the validity or legality of the Transactions or which could
reasonably be expected to adversely affect the ability of Seller to consummate
such Transactions.
6.2.6. As of the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the Transactions or
any of them not be consummated as so provided or imposing any material
conditions on the consummation of such Transactions by Seller.
6.2.7. Buyer shall have executed and delivered to Seller a general
release in favor of Seller, in the form attached as Exhibit B.
6.2.8. Dell and the Company shall have executed and delivered to
Seller a release in favor of Seller, in the form attached as Exhibit C.
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6.2.9. The closing of the purchase and sale of Dell Shares under
the Dell Agreement shall occur simultaneously with the Closing hereunder.
7. Termination and Abandonment.
7.1. Methods of Termination. This agreement and the Transactions may be
terminated and/or abandoned at any time not later than the Closing Date:
(a) By mutual written consent of Buyer and Seller;
(b) By Buyer, if any of the conditions provided for in Section 6.1
hereof shall not have been met or waived in writing by Buyer by the Dell
Closing Date;
(c) By Seller, if any of the conditions provided for in Section 6.2
hereof shall not have been met or waived in writing by Seller by the Dell
Closing Date; or (d) Automatically, if the Closing shall not have occurred
by October 15, 1997.
7.2. Procedure Upon Termination. In the event of termination and/or
abandonment by Buyer or Seller, or both, pursuant to Section 7.1 hereof,
written notice thereof shall forthwith be given to the other party and to Dell,
and this Agreement and the Transactions shall be terminated and/or abandoned,
without further action by Buyer or Seller. If this Agreement and the
transactions are terminated and/or abandoned in accordance with clause (a) of
Section 7.1, or as a result of a failure of the condition set forth in Section
6.1.8 or 6.2.9, then no party hereto shall have any liability or further
obligation to any other party to this Agreement.
8. Miscellaneous.
7.1. Notice. Any notice or other communication required or permitted
hereunder shall be in writing and personally delivered, mailed by registered or
certified mail (return receipt requested and postage prepaid), sent by
telecopier (with evidence of transmission retained and a confirming copy sent
by regular mail), or sent by prepaid overnight courier service, and addressed
to the relevant party at its address set forth below, or at such other address
as such
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party may, by written notice, designate as its address for purposes of notice
hereunder.
(a) If to Buyer, at:
The Marquee Group, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy:
With copies (which shall not constitute notice) to:
Xxxxxx X. Xxxxx, Esquire
The Sillerman Companies
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
and to:
Mr. Xxxxxx Xxxx
ProServ, Inc.
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(b) If to Seller at:
c/o Xxxxxxx X. Xxxxxx
Codan Trust Company (BVI) Ltd.
Romasco Place, Wickhams Cay 1
P.O. Box 3140
Road Town, Tortola
British Virgin Islands
Telecopy: (000) 000-0000
With copies to (which shall not constitute notice)
to:
Xxxx X. Xxxxx, Xx., Esquire
Xxxxx Xxxxxxxxxx
0000 Xxxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
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and to:
Mr. Xxxxxx Xxxx
ProServ, Inc.
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Notice shall be effective immediately upon personal delivery or telecopy, seven
(7) business days after deposit in the mail, or one (1) business day after
deposit with an overnight courier service.
8.2. Further Assurances. Each party will do such acts, and execute and
deliver to the other party such additional documents or instruments as may be
reasonably requested in order to effect the purpose of this Agreement.
8.3. Binding Effect and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. No party may voluntarily or involuntarily assign its interest
under this Agreement without the prior written consent of the other party,
except for any assignment by the Buyer to an affiliate of the Buyer in which
case the Buyer shall remain fully obligated under this Agreement.
8.4. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to its subject matter
and supersedes all prior written or oral agreements, understandings,
representations and warranties made with respect thereto. No amendment,
supplement or modification of this Agreement nor any waiver of any provision
hereof shall be made except in writing executed by all parties hereto.
8.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
8.6. Survival. The representations and warranties contained in this
Agreement shall survive the Closing for a period of six (6) months following
the Closing Date, and upon the expiration of such period shall lapse and be of
no further effect, except to the extent that prior to such date, a party
seeking indemnification hereunder shall have notified the other party of any
claims(s) arising with respect hereto. No party may seek an indemnity claim
against another for breach of a representation or warranty contained herein if
the claimant was
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aware at or prior to the execution and delivery hereof of such breach.
8.7. Counterparts. The Agreement may be executed in two counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one and the same instrument. It shall not be necessary when
making proof of this Agreement to account for more than one such counterpart.
8.8. Interpretation. The titles of the paragraphs of this Agreement are
for convenience of reference only and are not to be considered in construing
this Agreement. For all purposes of this Agreement, unless the context
otherwise requires or as otherwise expressly provided, (a) all defined terms
shall include both the singular and the plural forms thereof; (b) reference to
any gender shall include all other genders; (c) all references to words such as
"herein", "hereof", and the like shall refer to this Agreement as a whole and
not to any particular Article or Section within this Agreement; (d) the term
"include" means "include without limitation"; and (e) the term "or" is intended
to include the term "and/or".
8.9. No Waiver; Remedies Cumulative. No waiver by any party hereto of
any one or more defaults by any other party or parties in the performance of
any of the provisions of this Agreement shall operate or be construed as a
waiver of any future default or defaults, whether of a like or different
nature. No failure or delay on the part of any party in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to any party hereto at law, in equity or
otherwise.
8.10. Severability. Should any provision of this Agreement be
unenforceable or prohibited by applicable law, this Agreement shall be
considered divisible as to such provision which shall be inoperative, and the
remainder of this Agreement shall be valid and binding as though such provision
were not included herein.
8.11. Confidentiality. The Buyer and the Seller shall each keep strictly
confidential the existence and terms of this Agreement. The Buyer shall not
make reference to the Seller in the press releases or publicly filed documents,
without the prior consent of the Seller, except as required pursuant to an
order or request of a judicial or governmental authority or required by the
rules or regulations of the Securities and Exchange Commission, in which case
the Buyer shall consult with Seller
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prior to making such reference and shall accept Seller's reasonable
recommendations as to the reference.
8.12. Commissions or Finder's Fees. The parties hereto agree to
indemnify, defend and hold each other harmless from and against any and all
claims, losses, liabilities and expenses (including reasonable attorneys' and
other professionals' fees and disbursements) arising out of a claim by any
person or entity based on any arrangement or agreement made or alleged to have
been made by the Buyer or Seller in pay a commission, finder's fee, or similar
payment in connection with this Agreement or any matter related hereto.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties caused this Agreement to be executed and
delivered as of the date first set forth above.
BRIARCLIFF INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxxx, Xx.
---------------------------------------
Title: Vice President
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THE MARQUEE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: President and Chief Executive Officer
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EXHIBIT A
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GENERAL RELEASE BY SELLER
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IN CONSIDERATION of that certain General Release dated as of the date
hereof by The Marquee Group, Inc. ("Buyer"), inter alia, to Seller and for
other consideration, the receipt and sufficiency of which are acknowledged,
Briarcliff International Ltd. ("Seller") and its successors and assigns
(collectively, the "Releasing Parties"), release, remise, acquit, and forever
discharge Buyer, ProServ, Inc., and their respective Affiliates (as defined
below), representatives, successors, and assigns (collectively, the "Released
Parties"), from any and all claims, actions, and demands of every kind, whether
direct or derivative, xxxxxx or inchoate, known or unknown, in law or equity
(collectively, "Claims"), which the Releasing Parties have, have had, or may
have, against any Released Party, except as specifically set forth below:
1. Claims for indemnification or contribution against any Released Party
arising out of a Claim against any Releasing Party by a third party that is not
a Released Party (no such Claim having been brought to the attention of any
Releasing Party as of the date hereof);
2. Claims arising under that certain Stock Purchase Agreement dated as of
July __, 1997, between Buyer and Seller or that certain Side Agreement dated as
of July __, 1997, among Buyer, Seller, ProServ, Inc., and Xxxxxx X. Dell; and
3. Claims of the Releasing Parties against the Released Parties arising out
of or relating to actions of the Released Parties committed in bad faith or
with a fraudulent intent.
For purposes of this release, the term "Affiliate" shall mean, with respect
to a specified person or entity, any person or entity controlling, controlled
by, or under common control with, the specified person or entity.
Any Released party may plead this Release as a complete defense and bar to
any Claim brought in contravention hereof. In that event, or in the event of
any breach of any representation contained herein, the breaching Releasing
Party will indemnify, defend, and hold harmless the Released Parties from and
against all costs and expenses arising therefrom, including without limitation
reasonable attorneys' and other professionals' fees and expenses.
The Releasing Parties are aware that, under the law of certain
jurisdictions, a general release may not extend to Claims that a person does
not know or suspect exist at the time when the
release is executed. To the greatest extent permissible, the Releasing Parties
expressly waive the benefit of those laws and acknowledge that they intend this
Release to extend to the fullest measure provided for above.
Each Releasing Party represents and warrants to the Released Parties that
is has not sold, assigned or otherwise transferred to any other party or other
entity any Claim which it has, had, or may have, against any Released Party.
This Release shall be binding upon the Releasing Parties their respective
heirs, representatives, successors, and assigns.
This Release constitutes the full and entire understanding and agreement
among the Releasing Parties and the Released Parties with regard to its subject
matter and supersedes all prior written or oral agreements, understandings,
representations and warranties made with respect thereto. No amendment,
supplement or modification of this Release nor any waiver of any provision
thereof shall be made except in writing executed by Buyer and Seller.
Any pronoun used in this Release shall be deemed to include singular and
plural and masculine, feminine and neuter gender as the case may be. The words
"herein," "hereof," and "hereunder" shall be deemed to refer to this entire
Release, except as the context otherwise requires.
If any provision of this Release, or the application thereof to any party
or circumstance, shall be found by a court of competent jurisdiction to be, to
any extent, invalid or unenforceable, the reminder of this Release and the
application of that provision to other parties or circumstances, shall not be
affected thereby, and each provision shall be valid and enforced to the fullest
extent permitted by law.
[SIGNATURE APPEARS ON NEXT PAGE]
IN WITNESS WHEREOF, the undersigned has caused this Release to be executed
as of this ____ day of _____, 19___.
BRIARCLIFF INTERNATIONAL LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXX XX XXX XXXX )
XXXXXX XX XXX XXXX ) ss:
I, Xxxx Xxxxx, a Notary Public in and for said jurisdiction certify that
Xxxx X. Xxxxx, Xx. personally appeared before me and acknowledged that he is
the Vice President of Briarcliff International Ltd., a British Virgin Islands
corporation, and that the above instrument was executed by him by order of its
sole director, sealed with its corporate seal, and attested by him as its Vice
President.
Witness my hand and Notorial Seal, this ____ day of ________, 1997.
[SEAL]
------------------------------
Notary Public
My commission expires:
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EXHIBIT B
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GENERAL RELEASE BY BUYER
------------------------
IN CONSIDERATION of that certain General Release dated as of the date
hereof by Briarcliff International Ltd. ("Seller"), and inter alia, to Buyer
and for other consideration, the receipt and sufficiency of which are
acknowledged, The Marquee Group, Inc. ("Buyer") and its successors and assigns
(collectively, the "Releasing Parties"), release, remise, acquit, and forever
discharge Seller and its Affiliates (as defined below), representatives,
successors, and assigns (collectively, the "Released Parties"), from any and
all claims, actions, and demands of every kind, whether direct or derivative,
xxxxxx or inchoate, known or unknown, in law or equity (collectively,
"Claims"), which the Releasing Parties have, have had, or may have, against any
Released Party, except as specifically set forth below:
1. Claims for indemnification or contribution against any Released Party
arising out of a claim against any Releasing Party by a third party that is not
a Released Party (no such Claim having been brought to the attention of any
Releasing Party as of the date hereof);
2. Claims arising under that certain Stock Purchase Agreement dated as of
July __, 1997, between Buyer and Seller of that certain Side Agreement dated as
of July __, 1997, among Buyer, Seller, ProServ, Inc. and Xxxxxx X. Dell; and
3. Claims of the Releasing Parties against the Released Parties out of or
relating to actions of the Released Parties committed in bad faith or with a
fraudulent intent.
For purposes of this release, the term "Affiliate" shall mean, with respect
to a specified person or entity, any person or entity controlling, controlled
by, or under common control with, the specified person or entity.
Any Released Party may plead this Release as a complete defense and bar to
any Claim brought in contravention hereof. In that event, or in the event of
any breach of any representation contained herein, the breaching Releasing
Party will indemnify, defend, and hold harmless the Released Parties from and
against all costs and expenses arising therefrom, including without limitation
reasonable attorneys' and other professionals' fees and expenses.
The Releasing Parties are aware that, under the law of certain
jurisdictions, a general release may not extend to Claims that a person does
not know or suspect exist at the time when the
release is executed. To the greatest extent permissible, the Releasing Parties
expressly waive the benefit of those laws and acknowledge that they intend this
Release to extend to the fullest measure provided for above.
Each Releasing Party represents and warrants to the Released Parties that
it has not sold, assigned or otherwise transferred to any other person or
entity any Claim which it has, had, or may have, against any Released Party.
This Release shall be binding upon the Releasing Parties and their
respective heirs, representatives, successors, and assigns.
This Release constitutes the full and entire understanding and agreement
among the Releasing Parties and the Released Parties with regard to its subject
matter and supersedes all prior written or oral agreements, understandings,
representations and warranties made with respect thereto. No amendment,
supplement or modification of this Release nor any waiver of any provision
thereof shall be made except in writing executed by Buyer and Seller.
Any pronoun used in this Release shall be deemed to include singular and
plural and masculine, feminine and neuter gender as the case may be. The words
"herein," "hereof," and "hereunder" shall be deemed to refer to this entire
Release, except as the context otherwise requires.
If any provision of this Release, or application thereof to any party or
circumstance, shall be found by a court of competent jurisdiction to be, to any
extent, invalid or unenforceable, the remainder of this Release and the
application of that provision to other parties or circumstances, shall not be
affected thereby, and each provision shall be valid and enforced to the fullest
extent permitted by law.
[SIGNATURE APPEARS ON NEXT PAGE]
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EXHIBIT C
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GENERAL RELEASE BY XXXXXX X. DELL AND PROSERV, INC.
---------------------------------------------------
IN CONSIDERATION of that certain General Release dated as of the date
hereof by Briarcliff International Ltd. ("Seller"), inter alia, to ProServ,
Inc. ("PSI") and The Marquee Group, Inc. ("Buyer") and for other consideration,
the receipt and sufficiency of which are acknowledged, each of Xxxxxx X. Dell
("DLD") and PSI and their respective successors, heirs, executors and assigns
(collectively, the "Releasing Parties"), release, remise, acquit, and forever
discharge Seller and its Affiliates (as defined below), representatives,
successors, and assigns (collectively, the "Released Parties"), from any and
all claims, actions, and demands of every kind, whether direct or derivative,
xxxxxx or inchoate, known or unknown, in law or equity (collectively,
"Claims"), which the Releasing Parties have, have had, or may have, against any
Released Party, except as specifically set forth below:
1. Claims for indemnification or contribution against any Released Party
arising out of a Claim against any Releasing Party by a third party that is not
a Released Party (no such Claim having been brought to the attention of any
Releasing Party as of the date hereof); and
2. Claims of the Releasing Parties against the Released Parties out of or
relating to actions of the Released Parties committed in bad faith or with a
fraudulent intent.
For purposes of this release, the term "Affiliate" shall mean, with respect
to a specified person or entity, any person or entity controlling, controlled
by, or under common control with, the specified person or entity.
Any Released Party may plead this Release as a complete defense and bar to
any Claim brought in contravention hereof. In that event, or in the event of
any breach of any representation contained herein, the breaching Releasing
Party will indemnify, defend, and hold harmless the Released Parties from and
against all costs and expenses arising therefrom, including without limitation
reasonable attorneys' and others professionals' fees and expenses.
The Releasing Parties are aware that, under the law of certain
jurisdictions, a general release may not extend to Claims that a person does
not know or suspect exist at the time when the release is executed. To the
greatest extent permissible, the Releasing parties expressly waive the
benefit of those laws and acknowledge that they intend this Release to extend
to the fullest measure provided for above.
Each Releasing Party represents and warrants to the Released Parties that
it has not sold, assigned or otherwise transferred to any other person or
entity any Claim which it has, had, or may have, against any Released Party.
This Release shall be binding upon the Released Parties and their
respective heirs, representatives, successors, and assigns.
This Release constitutes the full and entire understanding and agreement
among the Releasing Parties and the Released Parties with regard to its subject
matter and supersedes all prior written or oral agreements, understandings,
representations and warranties made with respect thereto. No amendment,
supplement or modification of this Release nor any waiver of any provision
thereof shall be made except in writing executed by Seller, PSI and DLD.
Any pronoun used in this Release shall be deemed to include singular and
plural and masculine, feminine and neuter gender as the case may be. The words
"herein," "hereof," and "hereunder" shall be deemed to refer to this entire
Release, except as the context otherwise requires.
If any provision of this Release, or the application thereof to any party
or circumstance, shall be found by a court of competent jurisdiction to be, to
any extent, invalid or unenforceable, the remainder of this Release and the
application of that provision to other parties or circumstances, shall not be
affected thereby, and each provision shall be valid and enforced to the fullest
extent permitted by law.
[SIGNATURE APPEARS ON NEXT PAGE]
2
IN WITNESS WHEREOF, each of the undersigned has caused this Release to be
executed as of this ____ day of ________________ , 19 __ .
PROSERV, INC.
By:
--------------------------------
Name: Xxxxxx X. Dell
Title: Chairman of the Board
and Chief Executive
Officer
-----------------------------------
XXXXXX X. DELL
3
STATE OF__________________________)
) ss:
COUNTY OF_________________________)
I, ____________________ a Notary Public in and for said County and State,
certify that Xxxxxx X. Dell personally appeared before me and acknowledged that
he is the Chairman of the Board and Chief Executive Officer of ProServ, Inc., a
Delaware corporation, and that the above instrument was executed by him by
order of its board of directors, sealed with its corporate seal, and attested
by him as its Chairman of the Board and Chief Executive Officer.
Witness my hand and Notarial Seal, this ____________ day of
__________________, 1997.
[SEAL]
____________________________________
Notary Public
My commission expires: ____________________
STATE OF__________________________)
) ss:
COUNTY OF_________________________)
I, ____________________ a Notary Public in and for said County and State,
certify that Xxxxxx X. Dell personally appeared before me and acknowledged that
he executed the above instrument.
Witness my hand and Notarial Seal, this ____________ day of
__________________, 1997.
[SEAL]
____________________________________
Notary Public
My commission expires: ____________________
4
EXHIBIT D
---------
SIDE AGREEMENT
--------------
This Side Agreement is made and entered into as of July 2, 1997 by and
among Xxxxxx X. Dell ("Dell"), ProServ, Inc., a Delaware corporation (the
"Company"), Briarcliff International Ltd., a British Virgin Islands corporation
("Seller") and The Marquee Group, Inc., a Delaware corporation ("Buyer").
WHEREAS, Seller is the owner of 250 shares (the "Shares") of common stock,
par value $1.00, of the Company;
WHEREAS, by Stock Purchase Agreement dated the date hereof, a copy of which
is attached hereto and incorporated herein as Exhibit A (the "Purchase
Agreement"), Seller has agreed to sell and Buyer has agreed to purchase the
Shares;
WHEREAS, by the terms of that certain Common Stock Subscription and
Shareholder Agreement (the "Subscription Agreement") dated July 9, 1996 among
the Company, Dell and Seller, Seller may not sell the Shares without the
consent of Dell and the Company;
WHEREAS, Dell and the Company wish to consent to the sale and purchase of
the Shares pursuant to the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company, Dell, Buyer and Seller agree as follows:
1. Dell and Company Consent. Each of Dell and the Company agrees with each of
the Buyer and Seller that each of Dell and the Company:
(i) consents to Seller's sale and Buyer's purchase of the Shares under the
Purchase Agreement;
(ii) waives any and all rights that any of Dell and the Company may have with
respect to the Shares under the Subscription Agreement; and
(iii) agrees that Seller's sale and Buyer's purchase of the Shares under the
Purchase Agreement is made in full compliance with the provisions of the
Subscription Agreement.
2. Representations and Warranties. Each of the Company and Dell represents and
warrants to Buyer and Seller as follows:
(i) it has full power and authority to enter into this Side Agreement and to
carry out the transactions contemplated herein; and
(ii) the Side Agreement has been duly and validly executed and delivered by
it, does not violate any document or agreement, does not require the
filing with or consent
of any person and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms.
3. Miscellaneous. This Side Agreement:
(i) may only be amended or modified by a written instrument executed by each
of the parties hereto;
(ii) shall inure to the benefit of and be binding upon the parties hereto and
their respective successors, legal representatives and permitted assigns;
(iii) shall be governed by and construed in accordance with the internal laws
of the State of New York without giving effect to its conflicts of law
principles.
(iv) shall be kept strictly confidential by all parties hereto;
(v) may not be assigned without the prior written consent of the other
parties hereto, which may be granted or withheld for any reason or no
reason; and
(vi) may be executed in two or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the undersigned has caused this Side
Agreement to be duly executed on the date first written above.
BRIARCLIFF INTERNATIONAL LTD.
/s/ Xxxxxx X. Dell By: /s/ Xxxx X. Xxxxx, Xx.
---------------------------------- ------------------------------------
XXXXXX X. DELL Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
PROSERV, INC. THE MARQUEE GROUP, INC.
By: /s/ Xxxxxx X. Dell By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxx X. Dell Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman of the Board Title: President and Chief Executive
and Chief Executive Officer Officer
