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EXHIBIT 10.43
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SENIOR SUBORDINATED NOTE
PURCHASE AGREEMENT
Among
AURORA ELECTRONICS, INC.
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
and
The Several Other Persons Named
In Schedule I Hereto
Dated as of December 5, 1997
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TABLE OF CONTENTS
Page
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I. PURCHASE AND SALE OF THE NOTES..................................... 1
SECTION 1.01. Purchase and Sale of the Notes...................... 1
SECTION 1.02. Closing Date........................................ 1
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................... 2
SECTION 2.01. Organization and Qualification...................... 2
SECTION 2.02. Subsidiaries........................................ 2
SECTION 2.03. Capitalization...................................... 3
SECTION 2.04. Authorization of Agreements, Etc.................... 4
SECTION 2.05. Validity............................................ 4
SECTION 2.06. Governmental Approvals.............................. 4
SECTION 2.07. Financial Statements, Etc........................... 5
SECTION 2.08. SEC Filings......................................... 5
SECTION 2.09. Absence of Certain Changes or Events................ 6
SECTION 2.10. Actions Pending..................................... 7
SECTION 2.11. Compliance with Law.................................. 7
SECTION 2.12. Offering of the Securities.......................... 7
SECTION 2.13. Brokers.............................................. 8
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.................... 8
SECTION 3.01. Authorization........................................ 8
SECTION 3.02. Validity............................................ 8
SECTION 3.03. Investment Representations.......................... 8
SECTION 3.04. Government Approvals................................. 9
IV. CONDITIONS PRECEDENT............................................... 10
SECTION 4.01. Conditions Precedent to the Obligations
of the Purchasers.................................. 10
V. MISCELLANEOUS...................................................... 12
SECTION 5.01. Expenses, Etc....................................... 11
SECTION 5.02. Survival of Agreements.............................. 11
SECTION 5.03. Parties in Interest................................. 11
SECTION 5.04. Notices............................................. 12
SECTION 5.05. Entire Agreement; Assignment........................ 13
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Page
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SECTION 5.06. Counterparts........................................ 13
SECTION 5.07. Governing Law....................................... 13
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INDEX TO EXHIBITS, SCHEDULES AND ANNEX
Exhibit Description
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A Form of 10% Senior Subordinated Demand
Note
Schedule Description
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I Purchasers and Principal Amount of Notes
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SENIOR SUBORDINATED NOTE PURCHASE AGREEMENT, dated as of December
5, 1997, among AURORA ELECTRONICS, INC., a Delaware corporation (the "Company"),
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P., a Delaware limited partnership ("WCAS
VII"), and the several other persons named in Schedule I hereto (such persons,
together with WCAS VII, being hereinafter called individually a "Purchaser" and
collectively the "Purchasers").
WHEREAS, the Company desires to sell to the Purchasers, and the
Purchasers desire to purchase from the Company, on the terms and subject to the
conditions set forth herein, 10% Senior Subordinated Demand Notes of the
Company, in the aggregate principal amount of $2,800,000;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
I.
PURCHASE AND SALE OF
THE NOTES
SECTION 1.01. Purchase and Sale of the Notes.
(a) Subject to the terms and conditions set forth herein, on the
Closing Date, the Company shall execute, sell and deliver to each Purchaser, and
each Purchaser shall purchase from the Company, a 10% Senior Subordinated Demand
Note of the Company in substantially the form attached hereto as Exhibit A,
dated the Closing Date and registered in the name of such Purchaser, in the
principal amount set forth opposite the name of such Purchaser on Schedule I
hereto under the caption "Principal Amount of Note" (said notes, together with
any PIK Notes (as defined therein) and together with any notes issued in
exchange or substitution therefor, being hereinafter collectively called the
"Notes").
(b) On the Closing Date, as payment in full for the Notes being
purchased by it hereunder, and against delivery thereof as aforesaid, each
Purchaser shall transfer the amount set forth opposite such Purchaser's name on
Schedule I hereto under the caption "Principal Amount of Note" by wire transfer
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immediately available funds to an account designated by the Company.
SECTION 1.02. Closing Date. The closing of the sale and delivery
of the Notes shall take place at the offices of Reboul, MacMurray, Xxxxxx,
Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, xx December 5, 1997
(such date and time of the Closing being herein called the "Closing Date").
II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
SECTION 2.01. Organization and Qualification. The Company is a
corporation validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own or lease and
operate its properties and assets and to carry on its business as it is now
being conducted. The Company is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the character
of its properties owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
have a material adverse effect on the properties, assets, financial condition,
prospects, operating results or business of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect").
SECTION 2.02. Subsidiaries. (a) Except as set forth on Schedule
2.02 hereto, neither the Company nor any of its subsidiaries owns of record or
beneficially, directly or indirectly, (i) any shares of outstanding capital
stock or securities convertible into capital stock of any other corporation or
(ii) any participating interest in any partnership, joint venture or other
non-corporate business enterprise. Each subsidiary of the Company is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all
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requisite corporate power and authority to own or lease and operate its
properties and assets and to carry on its business as it is now being conducted.
Each subsidiary of the Company is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the character
of its properties owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
have a Material Adverse Effect. All the outstanding shares of capital stock of
the Company's subsidiaries are duly authorized, validly issued, fully paid and
nonassessable and, except as set forth on Schedule 2.02, are owned by the
Company or by a wholly-owned subsidiary of the Company, free and clear of any
liens, claims, charges, restrictions, rights of others, security interests,
prior assignments or other encumbrances (collectively, "Claims"), and there are
no proxies, voting or transfer agreements or understandings outstanding with
respect to any such shares.
(b) Schedule 2.02 includes a complete and accurate list of each
subsidiary of the Company, indicating the jurisdiction of incorporation, each
jurisdiction in which such subsidiary is qualified as a foreign corporation, its
capital structure (including all authorized and outstanding shares), and the
nature and level of ownership in such subsidiary by the Company, any subsidiary
of the Company and any other person (for purposes of this Agreement, "person"
shall mean and include an individual, a partnership, a joint venture, a
corporation, a trust, or an unincorporated organization). Complete and correct
copies of the Certificate of Incorporation and By-laws of the Company and of
each subsidiary of the Company have previously been delivered to the Purchasers.
(c) For purposes of this Agreement, the term "subsidiary", when
used with respect to the Company, shall mean any corporation or other business
entity, a majority of whose outstanding equity securities is at the time owned,
directly or indirectly, by the Company and/or one or more other subsidiaries of
the Company.
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SECTION 2.03. Capitalization.
(a) The authorized capital stock of the Company consists of (i)
50,000,000 shares of Common Stock and (ii) 1,000,000 shares of Preferred Stock,
$.01 par value, of which 400,000 shares have been designated Convertible
Preferred Stock, 25,000 shares have been designated Series B Convertible
Preferred Stock, 25,000 shares have been designated Series C Convertible
Preferred Stock and 20,000 shares have been designated Series D Convertible
Preferred Stock. As of the date hereof, 6,847,563 shares of Common Stock,
400,000 shares of Convertible Preferred Stock, 25,000 of Series B Convertible
Preferred Stock, 25,000 of Series C Convertible Preferred Stock and 20,000
shares of Series D Convertible Preferred Stock are issued and outstanding, all
of which were duly authorized and validly issued and are fully paid and
nonassessable.
(b) Except as set forth in the Company SEC Filings or on Schedule
2.03 hereof, as of the date hereof, no subscription, warrant, option,
convertible security, stock appreciation or other right (contingent or other) to
purchase or acquire any shares of any class of capital stock of the Company or
any of its subsidiaries is authorized or outstanding and (except as otherwise
expressly contemplated by this Agreement) there is not any commitment of the
Company or any of its subsidiaries to issue any shares, warrants, options or
other such rights or to distribute to holders of any class of its capital stock
any evidences of indebtedness or assets. Schedule 2.03 sets forth a complete and
correct list of the number of warrants or options, including a listing of the
vesting schedules thereof, held by each person with respect to the outstanding
capital stock of the Company.
(c) Except as set forth on Schedule 2.03, neither the Company nor
any of its subsidiaries has any obligation (contingent or other) to purchase,
redeem or otherwise acquire any shares of its capital stock or any interest
therein or to pay any dividend or make any other distribution in respect
thereof.
SECTION 2.04. Authorization of Agreements, Etc. (a) Each of (i)
the execution and delivery by the Company of this
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Agreement, (ii) the performance by the Company of its obligations hereunder and
(iii) the issuance, sale and delivery by the Company of the Notes have been duly
authorized by all requisite corporate action and will not violate any provision
of law, any order of any court or other agency of government, the Certificate of
Incorporation or By-laws of the Company, or any provision of any indenture,
agreement or other instrument to which the Company or any of its properties or
assets is bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument, or result in the creation or imposition of any Claim in
favor of any third person upon any of the properties or assets of the Company or
any of its subsidiaries.
(b) The issuance, sale and delivery of the Notes to the
Purchasers hereunder is not subject to any preemptive rights of stockholders of
the Company or to any right of first refusal or other similar right in favor of
any person.
SECTION 2.05. Validity. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
The Notes, when issued and delivered in accordance with this Agreement, will
constitute legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms.
SECTION 2.06. Governmental Approvals. Subject to the accuracy of
the representations and warranties of the Purchasers set forth in Article III
hereof, no registration or filing with, or consent or approval of, or other
action by, any Federal, state or other governmental agency or instrumentality is
or will be necessary for the valid execution, delivery and performance of this
Agreement or the issuance, sale and delivery of the Notes, other than such
filings with and approvals of the Securities and Exchange Commission ("SEC") or
any state securities commission or similar regulatory body as may be necessary
in connection with the commencement or consummation of the transactions
contemplated herein.
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SECTION 2.07. Financial Statements, Etc. (a) The Company has
furnished to the Purchasers: (i) the audited consolidated balance sheet of the
Company and its subsidiaries as of September 30, 1996 and the related
consolidated statements of operations, stockholders' equity and cash flows for
the fiscal year then ended certified by Xxxxxx Xxxxxxxx LLP, the independent
certified public accountants retained by the Company, and (ii) the unaudited
consolidated balance sheet of the Company and its subsidiaries as of June 30,
1997 and the related consolidated statements of operations and cash flows for
the nine months then ended, certified by the principal financial officer of the
Company. All such financial statements (including any related schedules and/or
notes) have been prepared in accordance with generally accepted accounting
principles in the United States ("GAAP") consistently applied and consistent
with prior periods, (i) except that such interim statements are subject to
year-end and audit adjustments (which consist of normal recurring accruals) and
do not contain certain footnote disclosures, and (ii) except as otherwise
disclosed in such financial statements or in the Company SEC Filings (as defined
below). Such balance sheets fairly present in all material respects the
financial position of the Company and its subsidiaries as of their respective
dates, and such statements of operations, stockholders' equity and cash flows
fairly present in all material respects the results of operations of the Company
and its subsidiaries for the respective periods then ended, subject, in the case
of unaudited financial statements, to normal year-end and audit adjustments and
the absence of certain footnote disclosures.
(b) Except as and to the extent (i) reflected on the consolidated
balance sheet of the Company and its subsidiaries as of September 30, 1996 (the
"September 30, 1996 Balance Sheet"), (ii) incurred since September 30, 1996 in
the ordinary course of business consistent with past practice, or (iii) set
forth on Schedule 2.07 hereto, neither the Company nor any of its subsidiaries
has any material liabilities or obligations of any kind or nature, whether known
or unknown, secured or unsecured, absolute, accrued, contingent or otherwise,
and whether due or to become due, that would be required to be reflected on a
balance sheet, or the notes thereto, prepared in accordance with GAAP.
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Since September 30, 1996, neither the Company nor any of its subsidiaries has
suffered any Material Adverse Effect.
SECTION 2.08. SEC Filings. The Company has filed all forms,
reports and documents required to be filed with the SEC since September 30,
1992, and the Company has made available to the Purchasers, as filed with the
SEC, complete and accurate copies of (i) the Annual Report of the Company on
Form 10-K for the year ended September 30, 1996, and (ii) all other reports,
statements and registration statements (including Current Reports on Form 8-K)
filed by the Company with the SEC since September 30, 1992, in each case
including all amendments and supplements (collectively, the "Company SEC
Filings"). The Company SEC Filings (including, without limitation, any financial
statements or schedules included therein) (a) were prepared in compliance with
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, as the case may be, and (b) did not at the time of
filing (or if amended, supplemented or superseded by a filing prior to the date
hereof, on the date of that filing) contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
SECTION 2.09. Absence of Certain Changes or Events. Except as set
forth on Schedule 2.09 hereto or as otherwise disclosed in the Company SEC
Filings or the financial statements of the Company and its subsidiaries as of
and for the nine months ended June 30, 1997 referred to above, and except as
otherwise expressly contemplated by this Agreement, since September 30, 1996,
neither the Company nor any of its subsidiaries has (i) issued any stock, bonds
or other corporate securities; (ii) borrowed or refinanced any amount or
incurred any material liabilities (absolute or contingent), other than revolving
credit facility borrowings and trade payables incurred in the ordinary course of
business consistent with past practice; (iii) discharged or satisfied any
material Claim or incurred or paid any obligation or liability (absolute or
contingent) other than current liabilities shown on the September 30, 1996
Balance Sheet
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and current liabilities incurred since the date of such balance sheet in the
ordinary course of business consistent with past practice; (iv) declared or made
any payment or distribution to stockholders, or purchased or redeemed any shares
of its capital stock or other securities; (v) mortgaged, pledged or subjected to
lien any of its assets, tangible or intangible, other than liens for current
real property taxes not yet due and payable; (vi) sold, assigned or transferred
any of its tangible assets, or cancelled any debts or Claims, except in the
ordinary course of business consistent with past practice; (vii) sold, assigned
or transferred any patents, trademarks and trade names, trademark and trade name
registrations, servicemark, brandmark and brand name registrations and
copyrights, the applications therefor and the licenses with respect thereto or
other intangible assets; (viii) waived any rights of substantial value, whether
or not in the ordinary course of business; (ix) made any material increase in
the compensation (including, without limitation, the rate of commissions)
payable to, or any payment of a material cash bonus to any director, officer,
employee of, or consultant or agent to, the Company or any of its subsidiaries
or any other material change in the terms or conditions of any employment
relationship; (x) announced any plan or legally binding commitment to create any
employee benefit plan, program or arrangement or to amend or modify in any
material respect any existing employee benefit plan, program or arrangement;
(xi) eliminated the vesting conditions or otherwise accelerated the payment of
any compensation, including any stock options; or (xii) except in connection
with this Agreement and the transactions contemplated hereby, entered into any
agreement, letter of intent or similar undertaking to take any of the actions
listed in clauses (i) through (xi) above.
SECTION 2.10. Actions Pending. Except (i) for any actions, suits,
investigations or proceedings which individually do not involve claims against
the Company or any of its subsidiaries for more than $50,000, (ii) as set forth
on Schedule 2.10 hereto, or (iii) as set forth in the Company SEC Filings, there
is no action, suit, investigation or proceeding pending or, to the best
knowledge of the Company, threatened against or affecting the Company, or any of
its properties or rights, before any court or by or before any governmental body
or arbitration
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board or tribunal. Except as set forth on Schedule 2.10 hereto, there is no
judgment, decree, injunction or order of any court, governmental department,
commission, agency, instrumentality or arbitrator outstanding against the
Company.
SECTION 2.11. Compliance with Law. Neither the Company nor any of
its subsidiaries is in default in any respect under any order or decree of any
court, governmental authority, arbitrator or arbitration board or tribunal or
under any laws, ordinances, governmental rules or regulations to which the
Company or any of such subsidiaries or any of their respective properties or
assets is subject, except where such default would not have a Material Adverse
Effect.
SECTION 2.12. Offering of the Securities. Neither the Company nor
any person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Notes or any similar
securities of the Company has offered any such securities for sale to, or
solicited any offers to buy any such securities from, or otherwise approached or
negotiated with respect thereto with, any person or persons, under circumstances
that involved the use of any form of general advertising or solicitation as such
terms are defined in Regulation D of the Securities Act; and, assuming the
accuracy of the representations and warranties of the Purchasers set forth in
Article III hereof, neither the Company nor any person acting on the Company's
behalf has taken or will take any action (including, without limitation, any
offer, issuance or sale of any securities of the Company under circumstances
which might require the integration of such transactions with the sale of the
Notes under the Securities Act or the rules and regulations of the SEC
thereunder) which would subject the offering, issuance or sale of the Notes to
the Purchasers to the registration provisions of the Securities Act.
SECTION 2.13. Brokers. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Company directly with the Purchasers, without the intervention of any other
person on behalf of the Company in such manner as to give rise to any valid
claim by any other
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person against the Purchasers for a finder's fee, brokerage commission or
similar payment.
III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and
warrants to the Company as follows:
SECTION 3.01. Authorization. The execution, delivery and
performance by such Purchaser of this Agreement and the purchase and receipt by
such Purchaser of the Notes being acquired by it hereunder, have been duly
authorized by all requisite action on the part of such Purchaser, and will not
violate any provision of law, any order of any court or other agency of
government, the charter or other governing documents of such Purchaser, or any
provision of any indenture, agreement or other instrument by which such
Purchaser or any of such Purchaser's properties or assets are bound, or conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or
result in any Claim upon any of the properties or assets of such Purchaser.
SECTION 3.02. Validity. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms.
SECTION 3.03. Investment Representations.
(a) Such Purchaser is acquiring the Notes being purchased by such
Purchaser hereunder for such Purchaser's own account, for investment, and not
with a view toward the resale or distribution thereof.
(b) Such Purchaser understands that he, she or it, as the case
may be, must bear the economic risk of such Purchaser's investment for an
indefinite period of time because the Notes are not registered under the
Securities Act or any applicable state
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securities laws, and may not be resold unless subsequently registered under the
Securities Act and such other laws or unless an exemption from such registration
is available. Such Purchaser also understands that it is not contemplated that
any registration will be made under the Securities Act or that the Company will
take steps which will make the provisions of Rule 144 under the Securities Act
available to permit resale of the Notes.
(c) Such Purchaser is able to fend for itself in the transactions
contemplated by this Agreement and such Purchaser has the ability to bear the
economic risks of the investment in the Notes being purchased by it hereunder
for an indefinite period of time. Such Purchaser further acknowledges that he,
she or it, as the case may be, has received copies of the Company SEC Filings
and has had the opportunity to ask questions of, and receive answers from,
officers of the Company with respect to the business and financial condition of
the Company and the terms and conditions of the offering of the Notes and to
obtain additional information necessary to verify such information or can
acquire it without unreasonable effort or expense.
(d) Such Purchaser has such knowledge and experience in financial
and business matters that such Purchaser is capable of evaluating the merits and
risks of its investment in the Notes. Such Purchaser further represents that he,
she or it, as the case may be, is an "accredited investor" as such term is
defined in Rule 501 of Regulation D of the SEC under the Securities Act with
respect to its purchase of the Notes, and that any such Purchaser that is a
limited partnership has not been formed solely for the purpose of purchasing the
Notes.
(e) If such Purchaser is a limited partnership, such Purchaser
represents that it has been organized and is existing as a limited partnership
under the laws of the State of Delaware.
SECTION 3.04. Governmental Approvals. No registration or filing
with, or consent or approval of, or other action by, any Federal, state or other
governmental agency or instrumentality is or will be necessary by such Purchaser
for the valid execution, delivery and performance of this Agreement.
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IV.
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to the Obligations of the
Purchasers. The obligations of the Purchasers hereunder are, at their option,
subject to the satisfaction, on or before the Closing Date, of the following
conditions:
(a) Opinion of Counsel. The Purchasers shall have received from
Xxxxxx & Xxxx L.L.P., counsel for the Company, an opinion dated the Closing
Date, satisfactory in form and substance to the Purchasers and their counsel.
(b) All Proceedings to Be Satisfactory. All corporate and other
proceedings to be taken by the Company and all waivers and consents to be
obtained by the Company in connection with the transactions contemplated hereby
shall have been taken or obtained by the Company and all documents incident
thereto shall be satisfactory in form and substance to the Purchasers and their
counsel.
(c) Supporting Documents. On or prior to the Closing Date the
Purchasers and their counsel shall have received copies of the following
supporting documents:
(i) copies of (1) the Certificate of Incorporation of the Company
and the charter documents of each of its subsidiaries, including all
amendments thereto, certified as of a recent date by the Secretary of
State or the appropriate official of the relevant state of
incorporation, (2) certificates of said Secretary or official, dated as
of a recent date, as to the due incorporation and good standing of the
Company and each such subsidiary, and listing all documents on file with
said official, and (3) a telegram or facsimile from said Secretary or
official as of the close of business on the next business day preceding
the Closing Date as to the continued due incorporation and good standing
of the Company and each such subsidiary and to the effect that no
amendment to the respective charter documents of such
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corporations has been filed since the date of the certificate referred
to in clause (2) above; and
(ii) a certificate of the Secretary or an Assistant Secretary of
the Company, dated the Closing Date and certifying (1) that the By-laws
of the Company as in effect on the date of such certification have not
been amended since May 20, 1993; (2) that attached thereto is a true and
complete copy of resolutions adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of this
Agreement and the issuance, sale and delivery of the Notes and that all
such resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by
this Agreement; (3) that the Certificate of Incorporation of the Company
has not been amended since the date of the last amendment referred to in
the certificate delivered pursuant to clause (i)(2) above; and (4) as to
the incumbency and specimen signature of each officer of the Company
executing this Agreement, the Notes and any certificate or instrument
furnished pursuant hereto, and a certification by another officer of
said corporation as to the incumbency and signature of the officer
signing the certificate referred to in this paragraph (ii).
All such documents shall be satisfactory in form and substance to the
Purchasers and their counsel.
V.
MISCELLANEOUS
SECTION 5.01. Expenses, Etc. The Company shall reimburse WCAS VII
or pay on its behalf any reasonable fees and expenses incurred by WCAS VII in
connection with the negotiation and preparation of this Agreement and the
related documents contemplated hereby. For purposes hereof, the "fees and
expenses incurred by WCAS VII" shall include, without limitation, the fees,
disbursements and expenses of counsel, accountants, financial advisors and other
experts retained by WCAS VII in
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connection with this Agreement and the transactions contemplated hereby.
SECTION 5.02. Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the issuance, sale and delivery of the Notes
pursuant hereto, notwithstanding any investigation made at any time by or on
behalf of any party hereto. All statements contained in any certificate or other
instrument delivered by the Company hereunder shall be deemed to constitute
representations and warranties made by the Company.
SECTION 5.03. Parties in Interest. All covenants and agreements
contained in this Agreement by or on behalf of any party hereto shall bind and
inure to the benefit of the respective successors and assigns of such party
hereto whether so expressed or not.
SECTION 5.04. Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained in
a written instrument delivered in person or duly sent by first class certified
mail, postage pre-paid, by nationally recognized overnight courier, or by
telecopy addressed to such party at the address or telecopy number set forth
below or such other address or telecopy number as may hereafter be designated in
writing by the addressee to the addressor listing all parties:
if to the Company, to:
Aurora Electronics, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx
00
00
Xxxxxx, Xxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
if to any Purchaser, to:
Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Xxxxxx X. XxXxxxxxx
with a copy to:
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other 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 mailing, on the fifth business day following the date of such
mailing, (c) in the case of delivery by overnight courier, on the business day
following the date of delivery to such courier, and (d) in the case of telecopy,
when received.
SECTION 5.05. Entire Agreement; Assignment. This Agreement
(including the Schedules and Exhibits hereto) and the Notes constitute the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended or modified nor any provisions waived except in a writing
signed by the Company and the Purchasers. This Agreement shall not be assigned
by operation of law of otherwise without the consent of the other parties
hereto.
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SECTION 5.06. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.07. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the Company and the Purchasers have executed
this Agreement as of the day and year first above written.
AURORA ELECTRONICS, INC.
By
---------------------------------------
Xxx X. Xxxxxx
Chairman and
Chief Executive Officer
WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
By WCAS VII Partners, L.P.,
General Partner
By
---------------------------------------
General Partner
WCAS INFORMATION PARTNERS, L.P.
By WCAS Info Partners,
General Partner
By
---------------------------------------
General Partner
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. xx Xxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
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Xxxxx X. XxxXxxxx
Xxxxxxx X. Xxxxx
By
---------------------------------------
Xxxxx X. XxxXxxxx
Individually and
as Attorney-in-Fact
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Schedule I
Name of Purchaser Principal Amount of Note
----------------- ------------------------
Welsh, Carson, Xxxxxxxx &
Xxxxx VII, L.P. 2,660,600
WCAS Information Partners, L.P. 36,300
Xxxxxxx X. Xxxxx 14,500
Xxxxxxx X. Xxxxxx 21,800
Xxxxx X. Xxxxxxxx 21,800
Xxxxxxx X. Xxxxx 10,900
Xxxxxx X. Xxxx 7,300
Xxxxxx X. XxXxxxxxx 12,700
Xxxxx XxxXxxxx 700
Xxxxx X. Xxxxxx 3,600
Xxxxxx X. Xxxxxxxxx 5,800
Xxxxxxx X. xx Xxxxxx 2,900
Xxxx X. Xxxxxxx 1,100
---------
Total 2,800,000
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