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SECURITIES PURCHASE AGREEMENT
between
EACH OF THE SELLERS SIGNATORY HERETO
as Sellers
and
FMCC ACQUISITION CORP.
as Buyer
Dated as of June 11, 1997
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TABLE OF CONTENTS
Page
1. SALE AND PURCHASE.........................................................1
2. PURCHASE PRICE............................................................2
3. REPRESENTATIONS AND WARRANTIES OF BUYER...................................2
3.1. Existence; Good Standing.........................................2
3.2. Authorization, Validity and Effect of Agreements.................2
3.3. No Violation.....................................................2
3.4. Availability of Funds............................................3
3.5. Purchase for Investment..........................................3
3.6. No Brokers.......................................................3
3.7. Parent Company...................................................3
4. REPRESENTATIONS AND WARRANTIES OF SELLER..................................3
4.1. Existence; Good Standing.........................................3
4.2. Authorization, Validity and Effect of Agreements.................4
4.3. No Violation.....................................................4
4.4. No Brokers.......................................................4
4.5. Ownership of Securities..........................................4
4.6. Capitalization...................................................5
5. COVENANTS.................................................................5
5.1. No Disposition; No Lien..........................................5
5.2. Payments; No Solicitation........................................5
5.3. Certain Commitments..............................................6
5.4. Filings; Other Action............................................6
5.5. Certain Agreements...............................................7
5.6. Publicity........................................................7
5.7. Tender Offer Agreement...........................................7
5.8. Best Efforts to Cause Tender of Certain Shares...................7
6. CONDITIONS................................................................8
6.1. Conditions to Obligation of Sellers to Sell the Securities.......8
6.2. Conditions to Obligation of Buyer to Purchase the Securities.....9
7. TERMINATION...............................................................9
7.1. Termination by Mutual Consent....................................9
7.2. Termination by Either Buyer or Sellers..........................10
7.3. Effect of Termination and Abandonment...........................10
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7.4. Extension; Waiver...............................................10
8. GENERAL PROVISIONS.......................................................10
8.1. Survival of Representations and Warranties......................10
8.2. Escrow Arrangements.............................................10
8.3. Notices.........................................................11
8.4. Assignment; Binding Effect; Benefit.............................12
8.5. Entire Agreement................................................13
8.6. Amendment.......................................................13
8.7. GOVERNING LAW...................................................13
8.8. Counterparts....................................................13
8.9. Headings........................................................13
8.10. Interpretation..................................................13
8.11. Waivers.........................................................13
8.12. Severability....................................................13
8.13. Enforcement of Agreement........................................14
8.14. Costs...........................................................14
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SECURITIES PURCHASE AGREEMENT
THIS AGREEMENT dated as of June 11, 1997, is entered into
between each of the Sellers that is a signatory hereto identified as a "SELLER"
on the signature pages hereto (each, a "Seller" and collectively, "Sellers") and
FMCC ACQUISITION CORP., a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, each of the Sellers is the owner of the number of
shares of Common Stock, par value $0.10 per share (the "Common Stock"), of First
of Michigan Capital Corporation, a Delaware corporation (the "Company"), set
forth opposite its name on Schedule A hereto (the foregoing securities of all
the Sellers, together with all non-cash dividends and distributions declared,
set aside or paid with respect thereto on or after the date hereof, are
collectively referred to herein as the "Securities");
WHEREAS, Sellers and Buyer have negotiated on an arm's length
basis the terms of the sale and purchase of the Securities owned by Sellers and
Sellers have determined that the terms of such sale and purchase are fair and
reasonable;
WHEREAS, Buyer has agreed to commence a tender offer for
shares of Common Stock pursuant to the Tender Offer Agreement (as defined in
Section 5.7); and
WHEREAS, Buyer desires to purchase from Sellers and each of
the Sellers desires to sell to Buyer the Securities owned by Sellers upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual benefit to be
derived from this Agreement and of the representations, warranties, conditions,
covenants and agreements hereinafter contained, Buyer and each of the Sellers
hereby agree as follows:
1. SALE AND PURCHASE.
(a) Each Seller hereby agrees to sell, transfer,
assign and deliver to Buyer and Buyer hereby agrees to purchase from such Seller
the Securities owned by such Seller for the Purchase Price (as defined in
Section 2).
(b) Immediately (but in no event later than three
business days) after all conditions hereto have been satisfied or waived, at the
time for closing set forth in a notice from Buyer to Sellers (the "Closing
Time"), (i) each Seller will deliver (or cause to be delivered) to Buyer, free
and clear of all liens, restrictions, claims, charges and encumbrances of any
nature whatsoever ("Liens"), certificates representing the Securities owned by
such Seller, such certificates being in negotiable form duly endorsed by such
Seller on the reverse
side of such certificates or on transfer powers attached to such certificates
as may be necessary for transfer upon the transfer books and records of the
Company into the name of Buyer or its designee, with signature guarantees and
otherwise in form for good delivery, and (ii) Buyer will wire transfer (or
cause to be wire transferred) funds in the aggregate amount set forth in
Section 2 in payment of the Purchase Price to an account or accounts to be
designated in writing by Sellers to Buyer at least three business days prior to
the Closing Time.
2. PURCHASE PRICE.
The consideration to be paid by Buyer to each Seller for the
Securities being sold by such Seller shall be $15.00 in cash per share of Common
Stock less the amount of any cash dividends and/or distributions declared, set
aside or paid with respect thereto on or after the date hereof and prior to the
Closing Time (the "Purchase Price").
3. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to each Seller as
follows:
3.1. Existence; Good Standing. Buyer is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation.
3.2. Authorization, Validity and Effect of Agreements. Buyer
has the requisite corporate power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby (including,
without limitation, the Tender Offer Agreement). The consummation by Buyer of
the transactions contemplated hereby has been duly authorized by all requisite
corporate action. This Agreement constitutes, and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of Buyer,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
3.3. No Violation. Neither the execution and delivery by Buyer
of this Agreement, nor the consummation by Buyer of the transactions
contemplated hereby in accordance with the terms hereof, will: (a) conflict with
or result in a breach of any provisions of the Certificate of Incorporation or
By-laws of Buyer; (b) violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under any of the terms, conditions
or provisions of any material license, certificate of authority, franchise,
permit, lease, contract, agreement or other instrument, commitment or obligation
to which Buyer or any of its subsidiaries is a party, or by which Buyer or any
of its subsidiaries or any of their properties is bound or affected, except for
any of the foregoing matters which would not have a material
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adverse effect on the ability of Buyer to perform its obligations hereunder
(a "Buyer Material Adverse Effect"); or (c) other than expiration or termination
of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
0000 (xxx "XXX Xxx"), Rule 10b-13 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and such regulatory approvals and filings as
may be required under applicable securities laws, require any material consent,
approval or authorization of, or declaration, filing or registration with, any
domestic governmental or regulatory authority, the failure to obtain or make
which would have a Buyer Material Adverse Effect.
3.4. Availability of Funds. Buyer has available on the date
hereof sufficient funds to enable it to consummate the transactions contemplated
by this Agreement and, subject to the terms and conditions of the Escrow
Agreement (as defined in Section 8.2), will make the deposit of cash with the
Escrow Agent (as defined in Section 8.2) as contemplated by Section 8.2.
3.5. Purchase for Investment. Buyer is an "accredited
investor", as such term is defined under Regulation D promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). Buyer is purchasing
the Securities for Buyer's own account, with the intention of holding the
Securities for investment, with no present intention of dividing or allowing
others to participate in its investment in the Securities or of reselling or
otherwise participating, directly or indirectly, in a distribution of the
Securities. Buyer will not make any sale, transfer or other disposition of the
Securities, without registration under the Securities Act and any applicable
state securities laws unless an exemption from registration is available under
the Securities Act and applicable state securities laws.
3.6. No Brokers. Buyer has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of any party hereto to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby
(including, without limitation, the Tender Offer Agreement). Buyer is not aware
of any claim for payment of any finder's fees, brokerage or agent's commissions
or other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby.
3.7 Parent Company. Buyer is a direct or indirect wholly
owned subsidiary of Xxxxxxxxxx Viner Holdings Inc., an Ontario corporation.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each
Seller hereby severally and not jointly represents and warrants, respectively,
to Buyer as follows:
4.1. Existence; Good Standing. Such Seller is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
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4.2. Authorization, Validity and Effect of Agreements. Such
Seller has the requisite power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby (including,
without limitation, the Tender Offer Agreement). The consummation by such Seller
of the transactions contemplated hereby has been duly authorized by all
requisite action. This Agreement constitutes, and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of such
Seller, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
4.3. No Violation. Neither the execution and delivery by such
Seller of this Agreement, nor the consummation by such Seller of the
transactions contemplated hereby in accordance with the terms hereof, will: (a)
conflict with or result in a breach of any provisions of the charter, bylaws,
partnership agreement, operating agreement, trust agreement or other operative
document or instrument of such Seller; (b) violate, or conflict with, or result
in a breach of any provision of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under any of
the terms, conditions or provisions of any material license, certificate of
authority, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which such Seller or any of its subsidiaries is a
party, or by which such Seller or any of its subsidiaries or any of their
properties is bound or affected, except for any of the foregoing matters which
would not have a material adverse effect on the ability of such Seller to
perform its obligations hereunder (a "Seller Material Adverse Effect"); or (c)
assuming the accuracy of Buyer's representation in Section 3.5 and other than
expiration or termination of the waiting period under the HSR Act, Rule 10b-13
under the Exchange Act and such regulatory approvals and filings as may be
required under applicable securities laws, require any material consent,
approval or authorization of, or declaration, filing or registration with, any
domestic governmental or regulatory authority, the failure to obtain or make
which would have a Seller Material Adverse Effect.
4.4. No Brokers. Such Seller has not entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of any party hereto to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby (including, without limitation, the Tender Offer Agreement). Such Seller
is not aware of any claim for payment of any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
4.5. Ownership of Securities. On the date hereof, such Seller
has good and valid title to the Securities owned by it, free and clear of all
Liens (except that, in the case of DST Systems, Inc., on the date hereof, 22,000
shares of Common Stock owned by it bear a restrictive legend). At the Closing
Time, such Seller will have good and valid title to the
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Securities owned by it, free and clear of all Liens. Such Seller has full power
and authority to sell, assign and transfer the Securities owned by it. Such
Seller shall transfer to Buyer good and valid title to such Securities, free and
clear of all Liens (other than Liens created by Buyer). Such Seller, upon
request, will execute (or cause to be executed) any additional documents
necessary or reasonably desirable to complete the transfer of the Securities to
Buyer.
4.6. Capitalization. To the best knowledge of such Seller: The
authorized capital stock of the Company consists of 10,000,000 shares of Common
Stock and 500,000 shares of Serial Preferred Stock. As of May 14, 1997, there
were 2,497,764 shares of Common Stock issued and outstanding. Since such date,
only such shares of Common Stock have been issued and only such options to
employees to purchase shares of Common Stock have been granted, such that the
Securities to be purchased pursuant to this Agreement, constitute as of the date
hereof, and will constitute as of the Closing Time, at least 53% of the shares
of Common Stock and any and all other voting securities of the Company on a
fully diluted basis as of each of such dates. For purposes of this Agreement,
"fully diluted basis" shall mean the number of shares of Common Stock then
issued and outstanding, assuming full conversion, exercise and exchange of all
warrants, options and rights to purchase Common Stock and all securities of any
type that shall be (or may become) exchangeable for, or exercisable or
convertible into, Common Stock. To the best knowledge of such Seller, there are
not any existing options, rights, warrants, calls, subscriptions, convertible
securities, or other rights, agreements or commitments which obligate the
Company or any of its subsidiaries to issue, transfer or sell any shares of
capital stock of the Company or any of its subsidiaries, other than options
granted to employees to purchase shares of Common Stock (i) in accordance with
the Company's past practices, and (ii) which together with shares of Common
Stock issued will not cause the third sentence of this Section 4.6 to be false.
There are no outstanding obligations of the Company or any of its subsidiaries
to purchase, redeem or otherwise acquire any shares of capital stock or voting
securities convertible or exercisable into or exchangeable for capital stock or
voting securities of the Company.
5. COVENANTS.
5.1. No Disposition; No Lien. Each Seller will not, between
the date hereof and the Closing Time, sell, dispose of, cause a Lien to be
created against, or in any other manner encumber (other than pursuant to this
Agreement), any of the Securities or enter into any agreement with any person or
entity (other than Buyer and the Escrow Agent) with respect to any of the
foregoing matters. DST Systems, Inc. will cause the removal prior to the Closing
Time of the restrictive legend on 22,000 shares of Common Stock owned by it that
constitute part of the Securities.
5.2. Payments; No Solicitation. Each Seller acknowledges
that any non-cash payments to it in respect of dividends or distributions on any
of the Securities declared, set aside or paid are included as part of the
Securities for purposes of this Agreement, and agrees
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to assign and deliver to Buyer at the Closing Time such payments. Between the
date hereof and the Closing Time, neither Seller nor any affiliate or
representative of such Seller shall solicit or encourage any person (other than
Buyer and the Escrow Agent) to acquire the Securities or sell or agree to sell
or engage in a recapitalization, merger, sale of stock, sale of assets, other
business combination or other similar transaction with or otherwise involving
the Company or any of its subsidiaries or enter into any agreement with any
person or entity (other than Buyer) with respect to any of the foregoing.
5.3. Certain Commitments. Each Seller hereby agrees that
during the time this Agreement is in effect, at any meeting of the stockholders
of the Company, however called, and in any action by consent of the stockholders
of the Company, Seller shall vote the Securities: (i) in favor of any proposal
for any recapitalization, merger, sale of stock, sale of assets, other business
combination or other similar transaction between or involving the Company or any
of its subsidiaries and Buyer or an affiliate of Buyer; (ii) after consultation
with Buyer, against any proposal for any recapitalization, merger, sale of
stock, sale of assets, other business combination or other similar transaction
involving the Company or any of its subsidiaries or which is reasonably likely
to materially and adversely affect Buyer or prevent or delay the consummation of
the transactions contemplated by this Agreement (other than a transaction
referred to in clause (i) above); and (iii) subject to any required regulatory
approvals, with respect to directors of the Company, in favor of any individuals
designated by Buyer and, without prior written instructions from Buyer to the
contrary, against any other individuals. If requested by Buyer, each Seller will
execute and deliver a written consent pursuant to Section 228 of the Delaware
General Corporation Law wherein such Seller shall take one or more of the
actions described in the preceding sentence.
5.4. Filings; Other Action. (a) Subject to the terms and
conditions herein provided, (i) each Seller and Buyer shall promptly make its
filings and thereafter make any other required submissions under the HSR Act and
the Exchange Act with respect to the transactions contemplated by this
Agreement; (ii) each Seller and Buyer shall use all reasonable efforts to
cooperate with one another in (A) determining which filings are required to be
made prior to the Closing Time with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Closing Time from,
governmental or regulatory authorities of the United States, the several states
and foreign jurisdictions in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and (B)
timely making all such filings required on its part and timely seeking all such
consents, approvals, permits or authorizations; and (iii) each Seller and Buyer
shall use all reasonable efforts to take, or cause to be taken, all other action
and do, or cause to be done, all other things necessary, proper or appropriate
to consummate and make effective the transactions contemplated by this
Agreement. If, at any time after the Closing Time, any further action on the
part of Sellers is necessary or reasonably desirable to carry out the purpose of
this Agreement and the transactions contemplated hereby, each Seller shall make
reasonable efforts to take all such actions.
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(b) Subject to the terms and conditions herein provided, each
Seller shall use all reasonable efforts to cause the Company and its
subsidiaries to cooperate with the parties hereto with respect to the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, each Seller shall use all reasonable efforts consistent with this
Agreement to cause the Company and its subsidiaries to cooperate with the
parties hereto in connection with any filings, submissions, consents, approvals,
permits, authorizations or other action referred to in Section 5.4(a) .
(c) The parties hereto shall use all reasonable efforts
consistent with this Agreement to cause each of the conditions precedent to the
consummation of the transactions contemplated by this Agreement applicable to
each of them, respectively, to be met as promptly as practicable.
5.5. Certain Agreements. (a) Effective as of the Closing
Time, each Seller shall assign (to the extent assignable) to Buyer or its
designee any and all rights that such Seller may have under any agreement or
instrument or otherwise to cause the Company to register or qualify any of the
Securities under the Securities Act and/or under any state securities laws.
(b) Except as set forth in the Company's Annual Report on Form
10-K for the fiscal year ended September 27, 1996, there is no agreement,
contract, arrangement and understanding between each Seller, on the one hand,
and the Company or any of its subsidiaries, on the other hand ("Affiliated
Contracts"). Each Seller has previously delivered to Buyer true, correct and
complete copies of any Affiliated Contracts. At the request of Buyer, each
Seller shall cause any Affiliated Contract to which it is a party to be assigned
(to the extent assignable) to Buyer or its designee or to be canceled, in each
case effective at the Closing Time.
5.6. Publicity. Subject to their respective legal obligations
(including, without limitation, requirements under the federal securities laws
and of stock exchanges and other similar regulatory bodies), the parties hereto
shall consult with each other, and shall use reasonable efforts to agree upon
the text of any press release, before issuing any such press release or
otherwise making public statements (other than filings made pursuant to
Regulation 13D, Regulation 14D or Form 8-K under the Exchange Act) with respect
to the transactions contemplated hereby.
5.7. Tender Offer Agreement. Concurrently herewith, the
Company, Sellers and Buyer have entered into that certain Tender Offer Agreement
of even date herewith (the "Tender Offer Agreement"). Each of Buyer and Sellers
hereby agrees to perform its respective obligations under the Tender Offer
Agreement.
5.8. Best Efforts to Cause Tender of Certain Shares.
Sellers shall use their respective best efforts to cause the parties set forth
on Schedule 5.8 hereto who beneficially
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own in the aggregate approximately 120,000 shares of Common Stock to validly
tender and not withdraw all such shares of Common Stock beneficially owned by
them to Buyer pursuant to the terms of the tender offer contemplated by the
Tender Offer Agreement.
6. CONDITIONS.
6.1. Conditions to Obligation of Sellers to Sell the
Securities. The obligation of each Seller to sell the Securities owned by it
shall be subject to the fulfillment at or prior to the Closing Time of the
following conditions:
(a) Buyer shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Closing Time and the representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects as of the date
when made and (unless made as of a specified date) as of the Closing Time, and
Sellers shall have received a certificate of Buyer, dated the date of the
Closing Time, certifying to such effect.
(b) The waiting period under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated and the
purchase and sale of the Securities pursuant to this Agreement shall not be in
violation of the Exchange Act or any of the rules or regulations promulgated
thereunder.
(c) Neither any Seller nor Buyer shall be subject to any order
or injunction of a court of competent jurisdiction which prohibits the
consummation of the transactions contemplated by this Agreement. If any such
order or injunction shall have been issued against a Seller, each Seller agrees
to use its reasonable best efforts to have any such order or injunction lifted.
(d) All material consents, authorizations, orders and
approvals of (or filings or registrations with) any governmental commission,
board or other regulatory body (including, without limitation, self-regulatory
organizations) required in connection with the execution, delivery and
performance of this Agreement shall have been obtained or made.
(e) There shall be no action, suit or preceding pending
against any of the parties hereto or the Company or any of its subsidiaries
which would or would reasonably be expected to prevent or materially delay the
transactions contemplated by this Agreement or result in material damages in
connection herewith.
(f) Buyer shall have commenced the tender offer for all shares
of Common Stock pursuant to the Tender Offer Agreement.
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6.2. Conditions to Obligation of Buyer to Purchase the
Securities. The obligations of Buyer to purchase the Securities shall be
subject to the fulfillment at or prior to the Closing Time of the following
conditions:
(a) Each of the Sellers shall have performed in all material
respects its agreements contained in this Agreement required to be performed on
or prior to the Closing Time and the representations and warranties of such
Seller contained in this Agreement shall be true and correct in all material
respects as of the date when made and (unless made as of a specified date) as of
the Closing Time, and Buyer shall have received a certificate of such Seller,
dated the date of the Closing Time, certifying to such effect.
(b) The waiting period under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated and the
purchase and sale of the Securities pursuant to this Agreement shall not be in
violation of the Exchange Act or any of the rules or regulations promulgated
thereunder.
(c) Neither Buyer nor any Seller shall not be subject to any
order or injunction of a court of competent jurisdiction which prohibits the
consummation of the transactions contemplated by this Agreement. If any such
order or injunction shall have been issued against Buyer, Buyer agrees to use
its reasonable best efforts to have any such order or injunction lifted.
(d) All material consents, authorizations, orders and
approvals of (or filings or registrations with) any governmental commission,
board or other regulatory body (including, without limitation, self-regulatory
organizations) or any other third party required in connection with the
execution, delivery and performance of this Agreement shall have been obtained
or made.
(e) There shall be no action, suit or preceding pending or
threatened against any of the parties hereto or the Company or any of its
subsidiaries which would or would reasonably be expected to prevent or
materially delay the transactions contemplated by this Agreement or result in
material damages in connection herewith.
(f) The entire Board of Directors of the Company shall be
composed of designees of Buyer at the Closing Time, provided Buyer shall have
used its best efforts to make such designations prior to the Closing Time.
7. TERMINATION.
7.1. Termination by Mutual Consent. This Agreement may
be terminated and the purchase and sale may be abandoned at any time prior
to the Closing Time by the mutual consent of Buyer and Sellers.
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7.2. Termination by Either Buyer or Sellers. This Agreement
may be terminated and the purchase and sale of the Securities may be abandoned
by Buyer or Sellers if: (i) the Closing Time shall not have occurred by October
11, 1997; or (ii) a United States federal or state court of competent
jurisdiction or United States federal or state governmental, regulatory or
administrative agency or commission having jurisdiction shall have issued an
order, decree or ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and non-appealable; provided, however, that the party seeking to terminate this
Agreement pursuant to this clause (ii) shall have used all efforts required by
this Agreement to remove such injunction, order or decree.
7.3. Effect of Termination and Abandonment. In the event of
termination of this Agreement pursuant to this Article 7, all obligations of the
parties hereto shall terminate. In the event of termination of this Agreement,
nothing herein shall prejudice the ability of the non-breaching party to seek
damages from any other party for any breach of this Agreement, including,
without limitation, attorneys' fees and the right to pursue any remedy at law or
in equity. Notwithstanding the foregoing, none of Sellers and Buyer shall be
liable for the failure of any representation or warranty to be true at the
Closing Time because of any action taken or omitted to be taken by the Company
that was not taken or omitted to be taken with the consent or approval or at the
direction of any Seller or Buyer, as the case may be.
7.4. Extension; Waiver. At any time prior to the Closing Time,
any party hereto may, to the extent legally allowed and if requested by any
other party hereto, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto, and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by or
on behalf of the party granting such extension or waiver.
8. GENERAL PROVISIONS.
8.1. Survival of Representations and Warranties. The
representations and warranties made in this Agreement shall not terminate at the
Closing Time and shall survive for three years after the Closing Time, other
than the representation and warranty made in Section 4.5 which shall survive
until the expiration of any applicable statute of limitations.
8.2. Escrow Arrangements. Promptly following the execution
and delivery of this Agreement, Sellers, Buyer and the Escrow Agent (as defined
below) shall enter into an escrow agreement in form and substance reasonably
satisfactory to Sellers and Buyer (the "Escrow Agreement"). Pursuant to the
Escrow Agreement, (a) Sellers will deposit the Securities with the Escrow Agent,
(b) Buyer will deposit cash in the aggregate amount of
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$21,275,265 with the Escrow Agent, and (c) the Escrow Agent will hold the
Securities and such cash in escrow. The Escrow Agreement will provide, inter
alia, that: (i) at the Closing Time, the Securities will be released from escrow
and delivered to Buyer and the Purchase Price will be released from escrow and
delivered to Sellers; and (ii) if this Agreement is terminated pursuant to
Section 7.1 or 7.2, the Securities will be released from escrow and delivered to
Sellers and such cash will be released from escrow and delivered to Buyer.
"Escrow Agent" means an entity mutually selected by Sellers and Buyer which
shall serve as escrow agent under the Escrow Agreement. If requested by Buyer,
(A) Sellers will cause an appropriate legend to be placed on all certificates
representing Securities to the effect that such certificated Securities are
subject to this Agreement and the Escrow Agreement, or (B) with respect to any
of the Securities that are deposited with the Escrow Agent in book-entry form,
Sellers will cause an appropriate notation or entry to be made (or take such
other appropriate action) so as to give notice equivalent to that of a legend on
certificated Securities to the effect that such book-entry Securities are
subject to this Agreement and the Escrow Agreement.
8.3. Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission (with machine
confirmation of delivery) and by courier service (with proof of service), hand
delivery (with proof of delivery) or certified or registered mail (return
receipt requested and first-class postage prepaid), addressed as follows:
If to Buyer:
c/o Fahnestock & Co. Inc.
000 Xxxx Xxxxxx (0xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxxxxxx Breed Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Richard Crystal, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Sellers:
1888 Limited Partnership
c/o Day, Xxxxx & Xxxxxx
-00-
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
DST Systems, Inc.
0000 Xxxxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Att: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
8.4. Assignment; Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties; provided, however, that
Buyer may assign this Agreement to any of its subsidiaries or affiliates whether
or not such subsidiaries or affiliates exist at the date hereof; provided
further, however, that no such assignment shall relieve Buyer of any of its
obligations hereunder. Subject to the preceding sentence, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement. Until
the Closing Time or termination of this Agreement pursuant to Section 7.1 or
7.2, the Securities (and any transfer thereof) shall be subject to this
Agreement.
-12-
8.5. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings (oral and written) among the
parties with respect thereto. No addition to or modification of any provision of
this Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
8.6. Amendment. This Agreement may be amended by the parties
hereto by an instrument in writing signed by or on behalf of each of the
parties hereto.
8.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS.
8.8. Counterparts. This Agreement may be executed by the
parties hereto (including by facsimile transmission) with separate counterpart
signature pages or in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
8.9. Headings. Headings of the Sections of this Agreement are
for the convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
8.10. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa.
8.11. Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including without limitation any investigation
by or on behalf of any party, shall be deemed to constitute a waiver by the
party taking such action of compliance with any representations, warranties,
covenants or agreements contained in this Agreement. The waiver by any party
hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other provision
hereunder.
8.12. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or otherwise affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
-13-
8.13. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof, this being in addition to any other remedy to
which they may be entitled at law or in equity.
8.14. Costs. All reasonable out-of-pocket costs and expenses
incurred in carrying out the transactions contemplated by this Agreement
(including but not limited to those reasonable out-of-pocket costs and expenses
associated with the Tender Offer Agreement, Escrow Agreement and all filings
made by any of the parties as contemplated herein) shall be borne solely by
Buyer, except for the fees and expenses of any legal counsel retained by any
Seller to advise such Seller in connection herewith and the transactions
contemplated hereby. Sellers agree to reimburse the Company for all legal fees
payable to Xxxxxxxxxxxx Xxxx & Xxxxxxxxx for legal services rendered in
connection herewith and the transactions contemplated hereby (including, without
limitation, the Tender Offer Agreement), to the extent such legal fees exceed
$25,000.
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement
and caused the same to be duly delivered on their behalf as of the day and year
first written above.
SELLERS:
1888 LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
DST SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
BUYER:
FMCC ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and CEO
SCHEDULE A
List of Sellers
===========================================================================================================
Name and Address Shares of Common Stock Percent of Class*
---------------- ---------------------- -----------------
----------------------------------------------------------------------------------------------------------
1888 Limited Partnership 777,929 29.1%
c/o Day, Xxxxx & Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------
DST Systems, Inc. 640,422 23.9%
0000 Xxxxxxxx
Xxxxxx Xxxx, XX 00000
==========================================================================================================
---------------------
* On a fully diluted basis.
SCHEDULE 5.8
BEST EFFORTS TO CAUSE TENDER OF CERTAIN SHARES
Name of Stockholders
DST Systems, Inc.
The Xxxxx Family Trusts
Xxxxxx X. Xxxxx
