EXECUTION COPY
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made as of the 26th day
of October, 2009, by and between Night-Watch Capital Partners II, LP
(the "SELLER"), a limited liability company organized under the laws of
Delaware, and Double Black Diamond Offshore Ltd., a Cayman Islands exempted
company, and Black Diamond Offshore Ltd., a Cayman Islands exempted company
(collectively, the "PURCHASER").
WHEREAS, The Seller desires to sell to Purchaser, and Purchaser desires to
purchase and accept from the Seller, all of the shares of common stock of Kana
Software, Inc. ("KANA" or the "COMPANY"), a Delaware corporation, owned by the
Seller (collectively, the "PURCHASED SHARES") on the terms and subject to the
conditions of this Agreement; and
WHEREAS, each of the Purchaser and the Seller desires that the foregoing
transaction be completed on such terms and subject to such conditions and wish
to make certain representations, warranties and covenants in connection
therewith.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Seller and the Purchaser agree as follows:
1. PURCHASE AND SALE OF PURCHASED SHARES.
1.1 AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as
defined in Section 1.3), the Seller will, on the terms and subject to the terms
of this Agreement, sell, assign, transfer and deliver to the Purchaser, and the
Purchaser will purchase and accept from the Seller, the Purchased Shares (as set
forth on the signature page hereto) against payment of the Purchase Price (as
defined in Section 1.2).
All certificates representing the Purchased Shares being sold by the Seller
will be duly endorsed by such Seller (or accompanied by duly executed stock
transfer powers executed in favor of the Purchaser), with all necessary transfer
tax stamps acquired at the Seller's expense affixed.
1.2 PURCHASE PRICE. Purchaser will pay to the Seller the purchase
price (the "PURCHASE PRICE") per share for the Purchased Shares to be purchased
and sold pursuant to this Agreement, calculated and paid as follows:
(a) At the Closing (as defined in Section 1.3(a)), $0.75 per
Purchased Share (the "INITIAL PURCHASE PRICE"); and
(b) In the event that the transactions contemplated by the Kana
APA (as defined in Section 1.3(a)) are consummated, within two Business Days
following such consummation (as defined in Section 1.3(a)), the amount per
purchased share calculated by taking the net cash per share as of the closing of
the KANA APA ( the "CLOSING CASH PER SHARE")(for purposes of this sentence, any
payables or other liabilities shall be deducted from cash except to the extent
already considered by 1.2 (c) below), less $.79 per share (the "CLOSING PURCHASE
PRICE"), plus
(c) within 160 days after the closing of the KANA APA, the
additional amount of net cash per share of the Company representing the
favorable resolution of all Kana APA escrow agreements after the closing of the
Kana APA, if any, measured 150 days after the closing of the Kana APA (the
"TOTAL PURCHASE PRICE").
1.3 CLOSING. (a) The closing (the "CLOSING") of the purchase and sale
of the Purchased Shares shall take place at the offices of Xxxxxxx Xxxx & Xxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, within two Business Days
following the announcement of the execution of the Asset Purchase Agreement, by
and among Xxx Technology Corp, Inc. and Kana, dated as of October 26, 2009 (the
"KANA APA"), or at such other time and place as the Seller and the Purchaser
mutually agree upon orally or in writing (such date the "CLOSING DATE"). For
purposes of this Agreement, "Business Day" means any day other than Saturday,
Sunday or any other day on which commercial banks in New York City are
authorized or required by Law (as defined in Section 2.4(b)) to remain closed.
(b) The Seller shall deliver to the Purchaser:
(i) no later than two Business Days prior to the Closing,
wire transfer instructions, in writing, designating the Seller's account(s) to
which the Purchaser shall deliver the Initial Purchase Price at Closing in
accordance with the terms and conditions of this Agreement; and
(ii) at or prior to the Closing, a certificate or
certificates representing the Purchased Shares that the Purchaser is purchasing
at such Closing, duly endorsed by the Seller (or accompanied by duly executed
stock transfer powers executed in favor of the Purchaser), with all necessary
transfer tax stamps acquired at the Seller's expense affixed.
(c) At or prior to the Closing, the Purchaser shall deliver to
the Seller a wire transfer of immediately available funds to an account or
accounts designated by the Seller, in the aggregate amount equal to the Initial
Purchase Price.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. As a material inducement
to the Purchaser to enter into this Agreement and purchase the Purchased Shares
hereunder, the Seller hereby represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date that:
2.1 ORGANIZATION, EXECUTION AND EFFECT OF AGREEMENT. (a) The Seller is
a limited liability company that (A) is duly organized, validly existing and in
good standing under the Laws (as defined herein) of its jurisdiction of
formation, (B) is duly qualified or licensed to do business and is in good
standing as a foreign limited liability company in each jurisdiction in which
the character of the properties owned or leased by it or the nature of its
business makes such qualification necessary, except for such of the foregoing in
which the failure to be so qualified or in good standing would not, individually
or in the aggregate, reasonably be expected to have or result in a material
adverse effect on the authority or ability of Seller to enter into this
Agreement or the Transaction Documents or consummate the transactions
contemplated hereby or thereby, (C) has the requisite power and authority to
execute and deliver this Agreement and the Transaction Documents to which it is
a party and to perform
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the transactions contemplated hereby and thereby to be performed by it, and (D)
has duly taken all necessary action required to be taken under applicable Law
for the due authorization of the execution and delivery by the Seller of this
Agreement and the Transaction Documents to which it is a party and the
performance by it of the transactions contemplated hereby or thereby.
(b) This Agreement has been, and the Transaction Documents to
which the Seller is a party will be, duly and validly executed and delivered by
such Seller and, assuming the due execution and delivery of this Agreement by
Purchaser, and assuming the due execution and delivery of the Transaction
Documents by any other parties thereto, constitutes a legal, valid and binding
obligation of the Seller, enforceable against such Seller in accordance with
their terms.
2.2 OWNERSHIP. The Seller is the true and lawful owner of record, and
has the sole voting power and sole dispositive power over, the Purchased Shares.
The Purchased Shares represent all of the shares of common stock of the Company
and other securities convertible for or exchangeable into common stock of the
Company owned by the Seller and its Affiliates (as defined in Section 11.2). The
delivery of the certificates representing the Purchased Shares being sold by the
Seller will transfer to Purchaser good and valid title to such Purchased Shares,
free of any liens, security interests or other encumbrances, claims or voting or
other restrictions (collectively, "LIENS") of any kind adverse to the Purchaser,
other than any restrictions on resale of the Shares as may be imposed under
applicable securities laws of the U.S. and any state thereof.
2.3 NO OPTIONS. There are no outstanding subscriptions, options,
rights (including phantom stock rights), warrants, calls, commitments,
understandings, arrangements, plans or other agreements of any kind affecting
the Seller's Purchased Shares.
2.4 NO RESTRICTIONS. (a) There is no suit, action, claim,
investigation or inquiry by any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentally of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision ("GOVERNMENTAL AUTHORITY"), and no legal, administrative or
arbitration proceeding pending or, to the Seller's knowledge, threatened against
the Seller or any of its Purchased Shares, with respect to the execution,
delivery and performance of this Agreement or any Transaction Documents or the
transactions contemplated hereby or thereby or any other agreement entered into
by such Seller in connection with the transactions contemplated hereby or
thereby.
(b) The execution and delivery by Seller of this Agreement and
the Transaction Documents to which it is a party do not, and the performance by
the Seller of the transactions contemplated hereby and thereby to be performed
by it will not, conflict with, or result in any material violation of, or
constitute a material default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any material obligations or the loss of a material benefit or the incurrence of
a material liability under, (i) any provision of the certificate of
incorporation or bylaws or comparable governing documents of the Company, any of
its subsidiaries or the Seller, if applicable, or (ii) to the knowledge of
Seller, any material permit or approval ("PERMIT"), if any, issued to the
Company, any of its subsidiaries or the Seller, under any statute, law, rule,
regulation or ordinance
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(collectively, "LAWS") or any judgment, decree, order, writ, permit or license
(collectively, "Orders") relating to the Company, any of its subsidiaries or
such Seller, except, in the case of such of the foregoing as applicable to the
Company or any of its subsidiaries, but not the Seller, for those as would not,
individually or in the aggregate, reasonably be expected to have or result in a
material adverse effect on the business, financial condition, results of
operations or prospects of the business of the Company.
(c) The execution, delivery and performance by the Seller of its
obligations under this Agreement and the Transaction Documents to which it is a
party and the consummation of the transactions contemplated hereby and thereby
will not (i) result in the violation by the Seller or, to the knowledge of the
Seller, by the Company of any Law or Order applicable only to it or any of its
Purchased Shares or (ii) conflict with, result in any violation or breach of,
constitute (with or without notice or lapse of time or both), a default under or
require the Seller or, to the knowledge of Seller, require the Company to obtain
any consent, approval or action of, make any filing with or give any notice to,
or result in or give to any Person (as defined in Section 11.2) any right of
payment or reimbursement, termination, cancellation, modification or
acceleration, or result in the creation or imposition of any Lien upon the
Seller's Purchased Shares, under any of, the terms conditions or provisions of
any agreement, commitment, lese, license, evidence of indebtedness, mortgage,
indenture, security agreement, instrument, note, bond, franchise, permit,
concession or other instrument, obligation or agreement of any kind
(collectively, "CONTRACTS") to which the Seller is a party or by which such
Seller or any of its assets or properties are bound, except in the case of any
of the foregoing as applicable to the Company or any of its subsidiaries, but
not the Seller, for such of the foregoing as would not, individually or in the
aggregate, reasonably be expected to have or result in a material adverse effect
on the business, financial condition, results of operations or prospects of the
business of the Company.
2.5 APPROVALS AND CONSENTS. No material consent, approval or action
of, filing with or notice to any Governmental Authority or Person is necessary
or required under any of the terms, conditions or provisions of any Law or Order
or any Contract to which the Seller is a party or its Purchased Shares are bound
for the execution and delivery of this Agreement and any Transaction Documents
by the Seller, the performance by the Seller of its obligations hereunder or
thereunder or the consummation by the Seller of the transactions contemplated
hereby or thereby.
2.6 CONTRACTS. The Seller is not party to any Contract with, and does
not have any claim or right against the Company or any of its subsidiaries.
2.4 BROKERS' FEES. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser could become
liable or obligated.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents, warrants and covenants as of the date hereof and as of the Closing
Date that:
3.1 ORGANIZATION, AUTHORIZATION AND EFFECT OF AGREEMENT. (a) The
Purchaser is an exempted company that (A) is duly organized, validly existing
and in good standing under the Laws of its jurisdiction of incorporation or
formation, (B) is duly qualified or
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licensed to do business and is in good standing as a foreign corporation in each
jurisdiction in which the character of the properties owned or leased by it or
the nature of its business makes such qualification necessary, except for such
of the foregoing in which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have or
result in a material adverse effect on the authority or ability of the Purchaser
to enter into this Agreement, the Transaction Documents or to consummate the
transactions contemplated hereby or thereby, (C) has the requisite power and
authority to execute and deliver this Agreement and the Transaction Documents to
which it is a party and to perform the transactions contemplated hereby and
thereby to be performed by it, and (D) has duly taken all necessary action
required to be taken under applicable Law for the due authorization of the
execution and delivery by the Purchaser of this Agreement and the Transaction
Documents to which it is a party and the performance by it of the transactions
contemplated hereby or thereby.
(b) This Agreement has been, and the Transaction Documents to
which the Purchaser is a party will be, duly and validly executed and delivered
by such Purchaser and, assuming the due execution and delivery of this Agreement
by Seller, and assuming the due execution and delivery of the Transaction
Documents by any other parties thereto, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against such Purchaser in accordance
with their terms.
3.2 NO RESTRICTIONS. (a) There is no suit, action, claim,
investigation or inquiry by any Governmental Authority, and no legal,
administrative or arbitration proceeding pending or, to the Purchaser's
knowledge, threatened against the Purchaser, with respect to the execution,
delivery and performance of this Agreement or any Transaction Document or the
transactions contemplated hereby or thereby or any other agreement entered into
by such Purchaser in connection with the transactions contemplated hereby or
thereby.
(b) The execution and delivery by Purchaser of this Agreement and
the Transaction Documents to which it is a party do not, and the performance by
the Purchaser of the transactions contemplated hereby and thereby to be
performed by it will not, conflict with, or result in any material violation of,
or constitute a material default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any material obligations or the loss of a material benefit or
the incurrence of a material liability under, (i) any provision of the
certificate of incorporation or bylaws or comparable governing documents of the
Purchaser, or (ii) to the knowledge of Purchaser, any material Permit, if any,
issued to the Purchaser under any Laws or any Orders relating to such Purchaser,
in each case except as would not, individually or in the aggregate, reasonably
be expected to have or result in a material adverse effect on the authority or
ability of the Purchaser to enter into this Agreement or the Transaction
Documents or to consummate the transactions contemplated hereby and thereby.
(c) The execution, delivery and performance by the Purchaser of
its obligations under this Agreement and the Transaction Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby will not (i) result in the violation by the Purchaser of any Law or
Order applicable only to it or (ii) conflict with, result in any violation or
breach of, constitute (with or without notice or lapse of time or both), a
default under or require the Purchaser to obtain any consent, approval or action
of, make any filing with
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or give any notice to, or result in or give to, any Person any right of payment
or reimbursement, termination, cancellation, modification or acceleration under
any of, the terms, conditions or provisions of any Contracts to which the
Purchaser is a party or by which such Purchaser or any of its assets or
properties are bound, in each case except as would not, individually or in the
aggregate, reasonably be expected to have or result in a material adverse effect
on the authority or ability of the Purchaser to enter into this Agreement or the
Transaction Documents or to consummate the transactions contemplated hereby and
thereby.
3.3 APPROVALS AND CONSENTS. No consent, approval or action of, filing
with or notice to any Governmental Authority or Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order or any
Contract to which the Purchaser is a party for the execution and delivery of
this Agreement and any Transaction Documents by the Purchaser, the performance
by the Purchaser of its obligations hereunder or thereunder or the consummation
by the Purchaser of the transactions contemplated hereby or thereby except as
would not, individually or in the aggregate, reasonably be expected to have or
result in a material adverse effect on the authority or ability of the Purchaser
to enter into this Agreement or the Transaction Documents or to consummate the
transactions contemplated hereby and thereby.
3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Purchased Shares to be
received by the Purchaser will be acquired by the Purchaser for investment
purposes only, and not with a view to the resale of any part thereof, and that
the Purchaser has no present intention of selling or granting any participation
in the same. By executing this Agreement, the Purchaser further represents that
it does not have any Contract, undertaking, agreement or arrangement with any
person or entity to sell, transfer or grant participations to such person or
entity or to any third person or entity, with respect to any of the Purchased
Shares. The Purchaser acknowledges and agrees that it is acquiring the Purchased
Shares subject to certain restrictions on resale that are imposed under
applicable U.S. and state securities laws.
3.5 BROKERS' FEES. The Purchaser has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Seller could become
liable or obligated.
4. AGREEMENTS WITH RESPECT TO MATERIAL NON-PUBLIC INFORMATION.
4.1 Each of the Purchaser and the Seller is sophisticated with respect
to transactions in the Purchased Shares and has adequate information concerning
the business and financial condition of the issuer of the Purchased Shares to
make an informed decision regarding the purchase and sale contemplated hereby
and has independently and without reliance upon the other and based on such
information as it has deemed appropriate in its independent judgment made its
own analysis and decision to enter into the transaction.
4.2 Each party hereto has executed a confidentiality agreement with
the Company and hereby acknowledges that the other party and its representatives
may have received and may possess material non-public information ("NON-PUBLIC
INFORMATION") regarding the Purchased Shares, the issuer of the Purchased Shares
or its other outstanding debt or securities that may not have been provided to
the other party, including, without limitation, information received on a
confidential basis directly or indirectly from the issuer, and that each
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party is precluded from disclosing such information to the other. Such
Non-public Information may be indicative of a value of the Purchased Shares that
is substantially more than the Total Purchase Price reflected in the transaction
contemplated hereby or otherwise adverse to either party's interest, and,
therefore, such information might be material to the Seller's decision to sell
the Purchased Shares or the Purchaser's decision to purchase the Purchased
Shares. Each of the Purchaser and Seller acknowledges that it has not requested
and does not wish to receive Non-public Information from the other party and
agrees that neither party shall have any liability to the other with respect to
the non-disclosure of Non-public Information.
4.3 Each of Purchaser and Seller expressly releases the other, its
Affiliates and their respective officers, directors, employees, agents and
controlling persons from any and all liabilities arising from their respective
failure to disclose or review, such Non-public Information, and each of
Purchaser and Seller agrees to make no claim against the other, its Affiliates
and their respective officers, directors, employees, shareholders, partners,
agents, representatives or Affiliates with respect to the transaction, relating
to such failure to disclose, or to review Non-public Information.
4.4 Purchaser and Seller are relying on the other's representations in
engaging in the transaction contemplated hereby, and would not engage in such
transaction in the absence of such representations.
4.5 This Section 4 represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof as to
disclosure or non-disclosure of the Non-public Information, and supersedes any
prior or contemporaneous agreements relating thereto.
5. COVENANTS
5.1 Each of Purchaser and Seller shall, (i) subject to the
satisfaction of the conditions to such party's obligations set forth in Sections
6, 7, and 8, execute and deliver such other documents, certificates, agreements
and other writings and (ii) take such other actions, in each case, as may be
necessary or reasonably requested by the other in order to consummate or
implement expeditiously the transactions contemplated hereby in accordance with
the terms of this Agreement.
5.2 Each of Purchaser and Seller shall use its reasonable best efforts
to cause all conditions precedent to the obligations of Purchaser and the
Sellers to be satisfied. Upon the terms and subject to the conditions of this
Agreement, each of Purchaser and Seller will use its reasonable best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable consistent with applicable law to
consummate and make effective in the most expeditious manner practicable the
transactions contemplated hereby.
5.3 For a period of six months following the Closing Date, the Seller
shall not, and shall cause its Affiliates, directors, officers, and employees
not to, directly or indirectly, acting alone or in concert with others, acquire,
sell or otherwise transfer ownership of (including "beneficial ownership" as
defined in Rule 13d-3 under the Securities Exchange Act of
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1934, as amended) any securities or indebtedness of, or any economic interest
in, the Company or any of its subsidiaries (including any participation interest
therein or any assets underlying such securities or indebtedness).
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER AND THE SELLER. The
obligations of each of Purchaser and each the Seller under this Agreement to
consummate the transactions contemplated hereby will be subject to the
satisfaction, at or prior to the Closing, of the following conditions:
6.1 RESTRAINING ACTION. There shall not have been entered a
preliminary or permanent injunction, temporary restraining order or other
judicial or administrative order or decree in any jurisdiction, the effect of
which prohibits the Closing.
7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The
obligations of Purchaser under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or prior to the
Closing, of all of the following conditions, any one or more of which may be
waived at the option of Purchaser:
7.1 NO MATERIAL MISREPRESENTATION OR BREACH. (a) There shall have been
no material breach by the Seller in the performance of any of the covenants
herein to be performed by him, her or it in whole or in part prior to the
Closing, and (b) the representations and warranties of the Seller contained in
this Agreement (i) that are not qualified as to materiality or material adverse
effect shall be true and correct in all material respects and (ii) that are so
qualified shall be true and correct, in each case on the date hereof and as of
the Closing Date as if made anew on the Closing Date, except for representations
or warranties made as of a specified date, which shall be true and correct in
all material respects as of the specified date.
7.2 CLOSING DELIVERABLES. The Purchaser shall have received the
closing deliverables described in Section 1.3(b).
8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The
obligations of the Seller under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or prior to the
Closing, of all the following conditions, any one or more of which may be waived
by the Seller at its option:
8.1 NO MATERIAL MISREPRESENTATION OR BREACH. (a) There shall have been
no material breach by Purchaser in the performance of any of the covenants
herein to be performed by it in whole or in part prior to the Closing, and (b)
the representations and warranties of Purchaser contained in this Agreement (i)
that are not qualified as to materiality or material adverse effect shall be
true and correct in all material respects and (ii) that are so qualified (if
any) shall be true and correct, in each case on the date hereof and as of the
Closing Date as if made anew on the Closing Date, except for representations or
warranties made as of a specified date, which shall be true and correct in all
material respects as of the specified date.
8.2 CLOSING DELIVERABLES. The Seller shall have received the closing
deliverables described in Section 1.3(c).
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9. TERMINATION. (a) Notwithstanding anything contained in this Agreement to
the contrary, this Agreement may be terminated at any time prior to the Closing:
(i) by the mutual written consent of Purchaser and the
Seller;
(ii) by either Purchaser or the Seller, if the Closing shall
not have occurred on or before October 30, 2009, provided, however, that the
right to terminate this Agreement pursuant to this Section 9(a)(ii) will not be
available to any party whose breach of any provision of this Agreement results
in the failure of the Closing to occur by such time;
(iii) by either Purchaser or the Seller if there shall have
been entered a final, nonappealable order or injunction of any Governmental
Authority restraining or prohibiting the consummation of the transactions
contemplated hereby or any material part thereof;
(iv) by Purchaser if the Seller shall have (i) failed to
perform any obligation or to comply with any agreement or covenant of the Seller
under this Agreement or (ii) breached any of its representations or warranties,
in each case such that the condition in Section 7.1 would not be satisfied,
which failure has not been cured within ten calendar days of notice from
Purchaser; or
(v) by the Seller if Purchaser shall have (i) failed to
perform any obligation or comply with any agreement or covenant of Purchaser
under this Agreement or (ii) breached any of its representations or warranties,
in each case such that the condition in Section 8.1 would not be satisfied,
which failure has not been cured within ten calendar days of notice from the
Seller.
(b) In the event of the termination of this Agreement under this
Section 9, each party hereto will pay all of its own fees and expenses. There
will be no further liability hereunder on the part of any party hereto if this
Agreement is so terminated, except by reason of a prior breach of any
representation, warranty or covenant contained in this Agreement.
10. RELEASE OF CLAIMS. Subject to the occurrence of the Closing, the
Seller, its representatives and Affiliates hereby release and forever discharge
the Company, its subsidiaries, representatives and Affiliates and the Purchaser,
its representatives and Affiliates from any and all actions, causes of action,
suits, debts, claims and demands (except for liabilities and obligations arising
under this Agreement and the Transaction Documents) that arise out of or relate
to acts, events, conditions or omissions occurring or existing at any time prior
to and including the Closing Date.
11. MISCELLANEOUS.
11.1 SURVIVAL. The warranties, representations and covenants of the
Company and the Investor contained in or made pursuant to this Agreement shall
survive the execution and delivery of this Agreement.
11.2 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and permitted assigns of the
parties (including permitted transferees of any Purchased Shares). Nothing in
this Agreement, express or implied, is intended
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to confer upon any party, other than the parties hereto or their respective
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
This Agreement may not be assigned by any party without the prior written
consent of the other party. Notwithstanding the foregoing, Purchaser may assign
this Agreement and any or all rights or obligations hereunder, without the
consent of the Seller, to one or more of its Affiliates; PROVIDED that no
assignment or attempted assignment shall relieve the assignor of any of its
obligations under this Agreement. For purposes of this Agreement, "Affiliate"
means any individual, group of individuals or entity, including without
limitation, any trust, custodian, individual retirement account, corporation,
limited liability company, joint venture, limited partnership or general
partnership (each, a "PERSON") that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with a
Person, or (ii) any other Person that, directly or indirectly, is the beneficial
owner of a majority of any class of equity securities of the specified person or
of which the specified Person is directly or indirectly the owner of a majority
of any class of equity securities.
11.3 PRESS RELEASES. Purchaser and Seller will consult with the other
before issuing, and provide the other the opportunity to review and comment
upon, any press release or other public statements with respect to this
Agreement, the Transaction Documents or the transactions contemplated hereby or
thereby and will not issue any such press release or make any such public
statement without the other party's prior written consent, except that a party
hereto may make such disclosures as are required by applicable Law, but only
after disclosing to the other party the basis for concluding that such
disclosure is so required and consulting with the other parties regarding the
contents of such disclosure prior thereto.
11.4 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York as applied to agreements among New York
residents entered into and to be performed entirely within New York. Any
judicial proceeding brought with respect to this Agreement must be brought in
any court of competent jurisdiction in the State of New York, and, by execution
and delivery of this Agreement, each party (i) accepts, generally and
unconditionally, the exclusive jurisdiction of such court and any related
appellate court, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement and (ii) irrevocably waives any
obligation it may now or hereafter have as to the venue of any such suit, action
or proceeding brought in such a court or that such court is an inconvenient
forum.
11.5 SPECIFIC PERFORMANCE. Each party hereto acknowledges and agrees
that one or more of the other parties would be irreparably damaged in the event
the provisions of this Agreement are not specifically enforced in the event of a
breach hereof by such party and that such damage could not be adequately
remedied by the payment of money damages. Consequently, in addition to any other
remedies that may be available at law or at equity, each party agrees that upon
any breach or threatened breach of this Agreement by such party, one or more of
the other parties hereto shall be entitled to temporary and permanent injunctive
or other appropriate equitable relief to restrain or otherwise prevent such
breach or threatened breach without posting any bond and without proving that
monetary damages would be inadequate.
10
11.6 LIMITATION ON DAMAGES. Notwithstanding any other provisions of
this Agreement, in no event will any party hereto be liable to any other party
for, nor will any party be entitled to claim for, any lost profits or
consequential, exemplary, indirect, punitive or special damages or losses with
respect to any claim arising out of or related to this Agreement or the
transactions contemplated hereby.
11.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
11.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the address
as specified below or to any other address or addresses as any party may from
time to time designate by written notice to the other party; as set forth on the
signature page hereof or at such other address as such party may designate by
ten days advance written notice to the other parties hereto.
If to Purchaser, to:
Double Black Diamond Offshore, Ltd.
Black Diamond Offshore, Ltd.
c/o Carlson Capital, L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
If to Seller, to:
NightWatch Capital Advisors, LLC
0000 Xxxxx Xxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
11.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of Purchaser and Seller. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities and the Seller.
11.10 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement
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and the balance of the Agreement shall be interpreted as if such provision were
so excluded and shall he enforceable in accordance with its terms.
11.11 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein Constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
11.12 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
above written.
Double Black Diamond Offshore Ltd.,
BY: Xxxxxxx Capital, L.P., its investment manager
BY: Asgard investment Corp., its general partner
(Print Name of Stockholder)
By: /s/ Xxxxx X Xxxxxxx
-------------------------------------------
Name: Xxxxx X Xxxxxxx
Title: President
Double Black Diamond Offshore Ltd.,
BY: Xxxxxxx Capital, L.P., its investment manager
BY: Asgard investment Corp., its general partner
(Print Name of Stockholder)
By: /s/ Xxxxx X Xxxxxxx
-------------------------------------------
Name: Xxxxx X Xxxxxxx
Title: President
NightWatch Capital Partners II, LP
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx
Title: Managing Principal of
NightWatch Capital Management
LLC, the General Partner
Owner of 5,705,814 Purchased Shares on the date hereof.
