EXHIBIT 99.2
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of June 5, 2003, by and
among Brookwood New World Co., LLC, for itself as the managing member (the
"Manager"), and as attorney-in-fact for the non-managing members (the
"Non-Managing Members"), of Brookwood New World Investors, LLC ("BNWI," and
together with the Manager and the Non-Managing Members, the "Sellers"), and
BNWI, and Greenlight Capital, L.P., Greenlight Capital Qualified, L.P. and
Greenlight Capital Offshore, Ltd. (collectively, the "Purchasers").
WITNESSETH:
WHEREAS, on the date hereof, BNWI owns (i) an aggregate of 12,497.022
shares of the Series F Preferred Stock (including payment-in-kind dividends
accrued on such shares), par value $0.001 per share (the "Series F Preferred
Stock"), of New World Restaurant Group, Inc., a Delaware corporation (the
"Company"), (ii) an aggregate of 4,995,325 shares of the common stock, par value
$0.001 per share ("Common Stock"), of the Company, (iii) warrants to acquire an
aggregate of 1,212,242 shares of Common Stock of the Company (the "Warrants"
and, collectively with the shares of Series F Preferred Stock and Common Stock,
the "Securities"), and (iv) the rights (the "Exchange Rights") to receive
Securities or any securities convertible into or exercisable for Securities,
including, without limitation, the right to receive warrants to purchase Common
Stock pursuant to Section 2 of that certain Exchange Agreement dated January 18,
2001 by and among the Company, BET Associates, L.P. and BNWI, as amended on June
19, 2001 and as of June 3, 2003 (as amended, the "Exchange Agreement"); and
WHEREAS, the Sellers desire to sell and transfer to the Purchasers all
of the membership interests in BNWI (the "Membership Interests"), and BNWI's
beneficial ownership of the Securities and the Exchange Rights and the
Purchasers desire to purchase from Sellers the Membership Interests and BNWI's
beneficial ownership of the Securities and the Exchange Rights all as more
specifically provided herein; and
WHEREAS, the Sellers desire to grant to the Purchasers an irrevocable
proxy to vote the Securities.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Membership Interests, Exchange Rights and Securities
1.1 Purchase and Sale of Membership Interests, Exchange Rights and
Securities. (a) Upon the terms and subject to the conditions of this Agreement
and on the basis of the representations, warranties, covenants and agreements
contained herein, at the Closing the Sellers shall sell, assign, transfer,
convey and deliver the Membership Interests and BNWI's beneficial ownership of
the Securities and the Exchange Rights to the Purchasers, and the Purchasers
shall purchase the Membership Interests and BNWI's beneficial ownership of the
Securities and the Exchange Rights from the Sellers for an aggregate cash
purchase price of $8,300,000 (the "Purchase Price"). The Purchase Price shall be
allocated among the Purchasers
and the Securities as set forth in Schedule 1.1 attached hereto. At the Closing,
the Purchasers shall pay the Purchase Price by wire transfer of immediately
available funds to an account or accounts previously specified by the Manager.
(b) The closing of the purchase and sale of the Membership Interests
and BNWI's beneficial ownership of the Securities and the Exchange Rights (the
"Closing") shall occur on or prior to 1:00 p.m. New York City time on June 6,
2003. The date of the Closing is hereinafter referred to as the "Closing Date."
1.2 Transactions to be Effected at Closing.
At the Closing:
(a) The Sellers shall surrender to the Purchasers the
certificate or certificates in their possession representing the Series F
Preferred Stock and Common Stock owned by the Sellers.
(b) The Sellers shall surrender to the Purchasers or, at the
Purchasers' direction, the Company, the Warrants in their possession.
(c) The Sellers shall surrender to the Purchasers such
evidence of the transfer of the Membership Interests as the Purchasers shall
reasonably request (it being understood that the Membership Interests are
uncertificated).
(d) The Sellers shall provide a notice to the Purchasers for
delivery to the Company in form and substance reasonably satisfactory to the
Purchasers including (i) notice of the transactions contemplated hereby, (ii)
the items contained in Section 2.3, and (iii) instructions to deliver any
certificate or certificates representing the Series F Preferred Stock and Common
Stock or Warrants owned by the Sellers not in the Sellers' possession to the
Purchasers.
(e) The Purchasers shall deliver the Purchase Price to the
Sellers in accordance with Section 1.1.
(f) Each of the parties shall execute and deliver to the other
parties hereto such other documents or instruments as any party hereto
reasonably requests to effect the transactions contemplated hereby.
ARTICLE II
Irrevocable Proxy
2.1 Grant of Proxy. In consideration for the execution of this
Agreement, the agreement of the Purchasers to purchase the Membership Interests
and beneficial ownership of the Securities and the Exchange Rights, and other
good, valuable and binding consideration, the receipt and sufficiency of which
is hereby acknowledged by each of the Sellers and the Manager on behalf of BNWI,
the Sellers, as of the execution of this Agreement and subject to the last
sentence of this Section 2.1, hereby irrevocably constitute and appoint the
Purchasers as BNWI's sole and exclusive and true and lawful proxy, agent and
attorney-in-fact with full power of substitution and resubstitution to vote (or
give written consent with respect to) all of the Securities and any other
securities hereafter acquired by BNWI, on any and all matters which
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may be presented for the vote (or consent) of the stockholders of the Company or
the holders of such Securities or after acquired securities and to exercise all
of the Sellers' rights to call meetings of the stockholders of the Company to
consider any issues that may properly be brought before such meetings as if the
undersigned were personally present at any such meeting and voting such
Securities or personally acting on any matter submitted to BNWI for approval or
consent. Notwithstanding the foregoing, the provisions of this Section 2.1 shall
terminate and have no further force or effect if the Closing does not occur on
or prior to Friday, June 6, 2003.
2.2 Acknowledgement. The Sellers acknowledge and agree that
this proxy is irrevocable and is coupled with an interest, and shall expire upon
the Closing Date in the event that the Closing does not occur.
2.3 Information Rights. BNWI shall instruct the Company to
provide all materials which the Company would have otherwise provided to BNWI as
a stockholder of the Company pursuant to the by-laws of the Company in
connection with the vote of the stockholders of the Company, to the Purchasers
at the address specified by Purchasers in writing to the Company. In any event,
should any Seller receive any such materials it shall immediately forward such
materials via courier to the Purchasers.
ARTICLE III
Representations and Warranties Regarding the Sellers
The Sellers hereby, jointly and severally, represent and warrant to the
Purchasers as follows on the date hereof or on the Closing Date:
3.1 Authorization. Subject to the consent of a majority in interests of
the Non-Managing Members (which will be obtained on or before the Closing Date),
the Sellers have the power and authority to execute, deliver and perform this
Agreement and to sell and deliver the Membership Interests and beneficial
ownership of the Securities and the Exchange Rights as contemplated hereby, all
of which, as of the Closing Date, shall have been duly authorized by all
requisite limited liability company action. This Agreement has been duly
authorized, executed and delivered by the Sellers and constitutes a valid and
binding obligation of the Sellers, enforceable against the Sellers in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
3.2 No Consents. Except for notice to the Company (which shall be
delivered to the Company on the Closing Date), no notice to, filing with, or
authorization, registration, consent or approval of any governmental authority
or other individual, partnership, corporation, joint stock company,
unincorporated organization or association, trust or joint venture, or a
governmental agency or political subdivision thereof (each, a "Person") is
necessary for the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby by the Sellers.
3.3 No Voting of Securities. The Sellers have not consented to or voted
in favor of or against the Company's issuance of any debt security other than
with respect to debt outstanding on the date hereof, including specifically the
issuance of the high-yield notes that are currently
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the subject of a Rule 144A offering (the "Notes"), and BNWI still has full
rights to vote on or consent to any such issuance.
3.4 Ownership of the Membership Interests, Securities and Exchange
Rights. The Manager and the Non-Managing Members own the Membership Interests
and BNWI owns the Securities and the Exchange Rights beneficially and of record,
free and clear of any lien, encumbrance, Order (as defined herein), security
interest, Contract (as defined herein), easement, covenant, community property
interest, equitable interest, right of first refusal, or restriction of any
kind, including any restriction on use, voting, transfer, receipt of income, or
exercise of any other attribute of ownership (collectively, "Encumbrances"),
other than those arising under applicable federal and state securities laws and
the transfer restrictions relating to the Securities contained in the Exchange
Agreement and the restrictions relating to the Securities contained in the
Stockholders' Agreement (the "Stockholders' Agreement") and the restrictions
relating to the Securities contained in the Registration Rights Agreement (the
"Registration Rights Agreement"), in each case among the Company and certain
stockholders of the Company. As of the date hereof and as of the Closing Date,
BNWI does not own any shares of Series F Preferred Stock, Common Stock or any
warrants other than the Securities, nor does BNWI have any other rights to
acquire any warrants or shares of Series F Preferred Stock or Common Stock other
than the Securities and the Exchange Rights or pursuant to the preemptive rights
provisions of the Stockholders' Agreement. There are no agreements (i) granting
any option, warrant or right of first refusal with respect to the Membership
Interests, the Securities or the Exchange Rights to any Person, (ii) restricting
the right of the Sellers to sell the Membership Interests and BNWI's beneficial
ownership of the Securities or the Exchange Rights to the Purchasers or (iii)
restricting any other right of the Sellers with respect to the Membership
Interests, the Securities or the Exchange Rights other than the restrictions on
voting the Securities contained in the Stockholders' Agreement, the restrictions
relating to the Securities contained in the Registration Rights Agreement and
the restrictions on transfer relating to the Securities contained in the
Exchange Agreement. Subject to compliance with the requirements of the
Securities Act of 1933, as amended (the "Act"), the Sellers have the absolute
and unrestricted right, power and capacity to sell, assign and transfer the
Membership Interests and BNWI's beneficial ownership of the Securities and the
Exchange Rights to the Purchasers free and clear of any Encumbrances (except for
Encumbrances arising under applicable federal and state securities laws). Upon
delivery of the Membership Interests to the Purchasers in exchange for the
Purchase Price, the Purchasers will acquire good and valid title to the
Membership Interests, and BNWI's beneficial ownership of the Securities and the
Exchange Rights, free and clear of any Encumbrances created by the Sellers and
except for the transfer restrictions relating to the Securities contained in the
Exchange Agreement and the restrictions relating to the Securities contained in
the Stockholders' Agreement and the restrictions relating to the Securities
contained in the Registration Rights Agreement; provided, however, that with
respect to any Securities that have not been certificated and delivered to the
Sellers, the Purchasers shall acquire beneficial ownership of such Securities
upon issuance and delivery of the applicable certificates and the Sellers
acknowledge and agree that they shall take such actions as may be necessary or
appropriate to effect the delivery of such certificates as contemplated by
Section 5.1.
3.5 Non-Interference. Each of the Sellers hereby covenants and agrees
that it shall not (i) offer to transfer (which term shall include, without
limitation, any sale, tender, gift, pledge, assignment or other disposition),
transfer, or consent to any transfer of, any or all of the Membership Interests,
or any Securities or any Exchange Rights, or any interest therein owned
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by BNWI, (ii) enter into any contract, agreement, arrangement, Commitment (as
defined herein), letter of intent, memorandum of understanding, promise,
obligation, right, instrument, document, or other similar understanding, whether
written or oral (each, a "Contract"), option or other agreement or understanding
with respect to any transfer by the Sellers of any or all of the Membership
Interests or by BNWI of the Securities or the Exchange Rights or any interest
therein, (iii) grant any proxy, power-of-attorney or other authorization or
consent in or with respect to the Membership Interests, the Securities or the
Exchange Rights, (iv) deposit the Membership Interests, the Securities or the
Exchange Rights into a voting trust or enter into a voting agreement or
arrangement with respect to the Membership Interests, the Securities or the
Exchange Rights, or (v) take any other action that would make any term contained
herein untrue or incorrect or in any way restrict, limit or interfere with the
performance of the Sellers' obligations hereunder.
3.6 Brokers. No Person is or will be entitled to a broker's, finder's,
investment banker's, financial adviser's or similar fee from the Sellers in
connection with this Agreement or any of the transactions contemplated hereby.
3.7 Entity Status. BNWI is a limited liability company duly created,
formed or organized, validly existing, and in good standing under the laws of
the State of Delaware. BNWI is duly authorized to conduct its business and is in
good standing under the laws of each jurisdiction where such qualification is
required. The Sellers have delivered to the Purchasers correct and complete
copies of BNWI's certificate of formation and limited liability company
agreement (the "Organizational Documents"), as amended to date. BNWI is not in
(a) any breach, inaccuracy, failure to perform, failure to comply, conflict
with, failure to notify, default, or violation or (b) any other act, omission,
event, occurrence or condition the existence of which would (i) permit any
Person to accelerate any obligation or terminate, cancel, or modify any right or
obligation or (ii) require the payment of money or other consideration (each, a
"Breach") of any provision of its Organizational Documents. There is no pending
or, to the knowledge of the Sellers, threatened (orally or in writing) Action
(as defined herein) (or past or current fact, situation, circumstance, status,
condition, activity, practice or plan (collectively, a "Basis") therefor) for
the dissolution, liquidation, insolvency, or rehabilitation of BNWI.
3.8 Assets and Liabilities. As of the Closing Date, except for this
Agreement and the transactions contemplated hereby or otherwise based upon or
relating to the foregoing, BNWI will have (i) no assets other than the
Securities and the Exchange Rights and (ii) no liability or obligation, whether
known or unknown, asserted or unasserted, absolute or contingent, matured or
unmatured, conditional or unconditional, latent or patent, accrued or unaccrued,
liquidated or unliquidated, or due or to become due (collectively,
"Liabilities") other than the obligation of the Manager under the LLC Agreement
to distribute proceeds from the sale of the Membership Interests to the Manager
or the Non-Managing Members (and, except for this Agreement and the transactions
contemplated hereby, there is no Basis for any present or future action, appeal,
petition, plea, charge, complaint, claim, suit, demand, litigation, arbitration,
mediation, hearing, inquiry, investigation or similar event, occurrence, or
proceeding (each, an "Action") or order, ruling, decision, verdict, decree,
writ, subpoena, mandate, precept, command, directive, consent, approval, award,
judgment, injunction, or other similar determination or finding by, before, or
under the supervision of any governmental body, arbitrator, or mediator (each,
an "Order") against BNWI giving rise to any Liability).
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3.9 No Violation. The execution and the delivery of this Agreement by
the Sellers and the performance of its obligations hereunder, and consummation
of the transactions contemplated hereby will not (a) Breach any law (statutory,
common, or otherwise), constitution, treaty, convention, ordinance, equitable
principle, code, rule, regulation, executive order, or other similar authority
enacted, adopted, promulgated, or applied by any governmental body, each as
amended and now and hereinafter in effect (each, a "Law") or Order to which the
Sellers are subject or any provision of the Organizational Documents of BNWI;
provided, however, that the Sellers make no representations with respect to any
Action or violation of Law arising out of or relating to the sale to the
Purchasers or the ownership by the Purchasers of the Securities or the Exchange
Rights; (b) Breach any Contract, Order, or any permit, license, certificate,
approval, consent, notice, waiver, franchise, registration, filing,
accreditation, or other similar authorization required by any Law, governmental
body, or Contract (each, a "Permit") to which any Seller is a party or by which
it is bound or to which any of its assets is subject (or result in the
imposition of any Encumbrance upon any of its assets); (c) trigger any rights of
first refusal, preferential purchase, or similar rights; or (d) cause the
recognition of gain or loss for tax purposes by BNWI or subject BNWI or its
assets to any federal, state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental (including taxes under Code Section 59A), customs, ad
valorem, duties, capital stock, franchise, profits, withholding, social
security, unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not ("Tax").
3.10 Capitalization. All of the issued and outstanding
Membership Interests: (a) have been duly authorized and are validly issued,
fully paid, and nonassessable, (b) were issued in compliance with all applicable
state and federal securities laws, (c) were not issued in Breach of any (i)
options, warrants, convertible securities, exchangeable securities, subscription
rights, conversion rights, exchange rights, or other similar Contracts that
could require BNWI to issue any of its Membership Interests; (ii) any other
securities convertible into, exchangeable or exercisable for, or representing
the right to subscribe for Membership Interests; (iii) statutory pre-emptive
rights or pre-emptive rights; and (iv) stock appreciation rights, phantom stock,
profit participation, or other similar rights (collectively, "Commitments"), and
(d) are held of record and owned beneficially by the Non-Managing Members and
the Manager. There are no Contracts with respect to the voting or transfer of
the Membership Interests. The Company is not obligated to redeem or otherwise
acquire any of its outstanding Membership Interests.
3.11 Legal Compliance. BNWI has complied with all applicable
Laws, and no Action is pending or, to the knowledge of the Sellers, threatened
(orally or in writing) (and there is no Basis therefor) against it alleging any
failure to so comply. No material expenditures are, or based on applicable Law,
will be required of BNWI for it to remain in compliance with applicable Law
based on current operations; provided, however, that the Sellers make no
representations with respect to any Action or violation of Law arising out of or
relating to the sale to the Purchasers or the ownership by the Purchasers of the
Securities or the Exchange Rights.
3.12 Litigation. BNWI (a) is not subject to any outstanding
Order or (b) is not a party, the subject of, or is, to the knowledge of the
Sellers, threatened (orally or in writing) to be made
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a party to or the subject of any Action, except for statements made by counsel
to the Company that have been disclosed to the Purchasers.
3.13 No Director Action. Neither the Indemnified Person (as defined
herein), in her capacity as a director of the Company, nor the board of
directors of the Company (the "Board") has taken any action or voted for or
against anything in relation to, in connection with or otherwise arising out of,
this Agreement or the consummation of the transactions contemplated hereby other
than the action taken at the telephonic meeting of the Board on June 2, 2003 and
reconvened on June 3, 2003 to approve that certain Amendment No. 2 to the
Exchange Agreement, dated as of June 3, 2003.
3.14 Accuracy of Information Furnished. No representation, statement,
or information contained in this Agreement or any Contract or document executed
in connection herewith or delivered pursuant hereto or thereto or made available
or furnished to the Purchasers or their representatives by any Seller contains
or will contain any untrue statement of a material fact or omits or will omit
any material fact necessary to make the information contained therein not
misleading.
ARTICLE IV
Representations and Warranties Regarding the Purchaser
The Purchasers, jointly and severally, hereby represent and warrant to
the Sellers as follows on the date hereof or on the Closing Date:
4.1 Authorization. The Purchasers have the power and authority to
execute and deliver this Agreement and to perform their obligations hereunder,
all of which have been duly authorized by all requisite corporate or partnership
action. This Agreement has been duly authorized, executed and delivered by the
Purchasers and constitutes a valid and binding agreement of the Purchasers,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
4.2 Access to Information. The Purchasers have received all information
regarding the Company and BNWI that they deem necessary or advisable to evaluate
the risks and merits of an investment in the Membership Interests. In addition,
the Purchasers have had an opportunity to ask questions of and receive answers
from representatives of the Company concerning the business of the Company, its
condition and prospects (financial and other) and the terms and conditions of
the sale of the Membership Interests as contemplated hereby. In determining to
purchase the Membership Interests, the Purchasers have not relied upon any
information provided by the Sellers concerning the Company.
4.3 Accredited Investor. The Purchasers are "Accredited Investors" as
such term is defined in Rule 501 of the rules and regulations of the Securities
and Exchange Commission promulgated under the Act.
4.4 Investment Decision.
(a) The Purchasers are acquiring the Membership Interests for
their own account for investment only and not for or with a view to resale or
distribution of the
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Membership Interests in violation of the Act. The Purchasers have not entered
into any Contract, undertaking, agreement or arrangement with any Person to
sell, transfer or pledge to such person or anyone else the Membership Interests
in violation of the Act and the Purchasers have no present plans or intentions
to enter into any such Contract, undertaking, agreement or arrangement.
(b) The Purchasers have the financial ability to bear the
economic risk of losing their entire investment in the Membership Interests, are
prepared to bear the economic risk of its investment and can afford to sustain a
complete loss of its investment therein.
(c) The Purchasers have substantial experience in making
investment decisions of this type and, therefore, have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of an investment in the Membership Interests.
(d) The Purchasers understand that the Membership Interests
constitute restricted securities within the meaning of Rule 144 promulgated
under the Act, and that none of the Securities, or any interest therein, may be
sold except pursuant to an effective registration statement under the Act or in
a transaction exempt from registration under the Act, and understand the meaning
and effect of such restriction. The Purchasers acknowledge that the certificates
representing the Securities contain, and the certificates representing any
shares of Common Stock issued upon the exercise of the Warrants (the "Warrant
Shares") will contain, contain a legend summarizing the restrictions on transfer
of the Securities and the Warrant Shares.
(e) The Purchasers have considered and, to the extent they
believed such discussion was necessary, discussed with their professional legal,
tax and financial advisers the suitability of an investment in the Membership
Interests for the Purchasers' particular tax and financial situation and the
Purchasers have determined that the Securities are a suitable investment for
them.
4.5 Financial Resources. The Purchasers have, or have the absolute and
unconditional right to obtain prior to the Closing, sufficient financial
resources to enable it to consummate the transactions contemplated hereby.
4.6 Brokers. No person is or will be entitled to a broker's, finder's,
investment banker's, financial adviser's or similar fee from the Purchasers in
connection with this Agreement or any of the transactions contemplated hereby.
ARTICLE V
Covenants
5.1 Further Assurances. From and after the Closing, each of the parties
hereto shall execute and deliver such other documents, certificates, agreements
or instruments and shall take or cause to be taken such other actions as may be
necessary or appropriate to effect the sale and transfer of the Membership
Interests and BNWI's beneficial ownership of the Securities and the Exchange
Rights to the Purchasers as contemplated hereby.
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5.2 Taxes. The Manager shall cause BNWI to file Tax returns covering
that portion of 2003 elapsed prior to the Closing Date, and the Sellers shall be
responsible for all Taxes due in connection therewith. The Purchasers shall be
responsible for the filing of all Tax returns required to be filed, and all
Taxes required to be paid, with respect to all periods on or after the Closing
Date.
5.3 Indemnification. The Purchasers, jointly and severally, shall, to
the extent not paid by the Company's directors and officers insurance, errors
and omissions insurance or other insurance or another indemnification or
contribution mechanism of the Company including, without limitation, finite risk
programs, trusts, self-insurance, indemnification or contribution agreements, or
indemnification or contribution provisions in the Company's organizational
documents or other Contracts (but only to the extent that the provider of such
payment has in writing agreed to indemnify the Indemnified Person (as
hereinafter defined) and advance expenses in connection with any Losses (as
hereinafter defined)), indemnify, defend and hold harmless Xxx Xxxxx (the
"Indemnified Person"), in her capacity as a director of the Company, from and
against any and all damages, claims, costs, losses, liabilities, expenses or
obligations, including taxes, interest, penalties, fines, costs of compliance
with injunctive or other non-monetary relief, court costs and reasonable
attorneys' and accountants' fees and expenses incurred or suffered by the
Indemnified Person ("Losses") in connection with or otherwise arising out of
this Agreement and the consummation of the transactions contemplated hereby.
5.4 Release. (a) Each of the Purchasers, on behalf of itself, its
subsidiaries, parent entities, affiliates, officers, directors, employees,
partners, stockholders and members, and the officers, directors, employees,
partners, stockholders and members of each of the foregoing (together the
"Purchaser Releasing Parties"), hereby waives, discharges, and releases each of
the Sellers and each of their respective subsidiaries, parent entities,
affiliates, officers, directors, employees, partners, stockholders and members
(together the "Seller Released Parties") from any and all claims, losses,
damages, charges, actions, suits, proceedings, deficiencies, taxes, interests,
costs or expenses (including, but not limited to, court costs and reasonable
attorney fees), known or unknown, whether now or hereafter existing
(collectively, "Claims"), arising from any matter whatsoever relating in any way
to the Company, including, but not limited to, any Seller Released Party's
capacity as a stockholder, director, consultant or officer, whether formal or
informal, paid or unpaid, de facto or otherwise, that any or all of the
Purchaser Releasing Parties has or might have against any of the Seller Released
Parties based in any way on facts or circumstances that existed on or before the
date of this Agreement other than Claims based on a Breach of any
representation, warranty, obligation or covenant contained in this Agreement
(together, all such claims are referred to as the "Purchaser Released Claims").
Each of the Purchasers, on behalf of itself and the other Purchaser Releasing
Parties, expressly covenants that it will not commence any action or suit, or
prosecute any pending suit, in law or equity, against any of the Seller Released
Parties in whole or in part involving any Purchaser Released Claims.
(b) Each of the Sellers, on behalf of itself, its
subsidiaries, parent entities, affiliates, officers, directors, employees,
partners, stockholders and members, and the officers, directors, employees,
partners, stockholders and members of each of the foregoing (together the
"Seller Releasing Parties"), hereby waives, discharges, and releases each of the
Purchasers and each of their respective subsidiaries, parent entities,
affiliates, officers, directors, employees, partners, stockholders and members
(together the "Purchaser Released Parties") from any and all
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Claims arising from any matter whatsoever relating in any way to the Company,
including, but not limited to, any Purchaser Released Party's capacity as a
stockholder, director, consultant or officer, whether formal or informal, paid
or unpaid, de facto or otherwise, that any or all of the Seller Releasing
Parties has or might have against any of the Purchaser Released Parties based in
any way on facts or circumstances that existed on or before the date of this
Agreement other than Claims based on a Breach of any representation, warranty,
obligation or covenant contained in this Agreement (together, all such claims
are referred to as the "Seller Released Claims"). Each of the Sellers, on behalf
of itself and the other Seller Releasing Parties, expressly covenants that it
will not commence any action or suit, or prosecute any pending suit, in law or
equity, against any of the Purchaser Released Parties in whole or in part
involving any Seller Released Claims.
ARTICLE VI
Survival, Amendment and Waiver
6.1 Survival. The representations, warranties and covenants contained
in this Agreement or any certificate delivered in connection herewith shall
survive the sale of the Securities, the Membership Interests and the Exchange
Rights as contemplated hereby.
6.2 Amendments. This Agreement (including the provisions of this
Section 6.2) may not be amended or modified except by an instrument in writing
signed on behalf of all of the parties hereto affected by such amendment or
modification.
6.3 Extension; Waiver. The parties hereto may (i) extend the time for
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto,
and (iii) waive compliance with any of the agreements of the other parties
hereto or satisfaction of any of the conditions to such party's obligations
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 on behalf of such party. The failure of a party hereto to assert any of
its rights hereunder shall not constitute a waiver of such rights.
ARTICLE VII
Miscellaneous
7.1 Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered by courier, three days after
being deposited in the mail (registered or certified mail, postage prepaid,
return receipt requested), or when received by facsimile transmission upon
receipt of a confirmed transmission report, as follows:
If to the Sellers: c/o Brookwood Financial Partners, L.P.
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
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If to the Purchasers: c/o Greenlight Capital, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxxx
Any party hereto, by notice given to the other parties hereto in accordance with
this Section 7.1 may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party.
7.2 Expenses. Each of the parties hereto shall pay its own expenses
incident to this Agreement and the transactions contemplated herein.
7.3 Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, Action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, Action or proceeding may be served on
each party hereto anywhere in the world by the same methods as are specified for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
Action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, Action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, Action or proceeding brought in any such court has been brought in an
inconvenient forum.
7.4 Specific Performance. The Sellers and the Purchasers acknowledge
and agree that in the event of any Breach of this Agreement, the Purchasers or
the Sellers, as the case may be, would be irreparably harmed and could not be
made whole by monetary damages. It is accordingly agreed that the Sellers and
the Purchasers, in addition to any other remedy to which they may be entitled at
law or in equity, are entitled to an injunction or injunctions to prevent
Breaches of this Agreement and/or to compel specific performance of this
Agreement in any Action instituted in any court permitted by the provisions of
Section 7.3 having subject matter jurisdiction.
7.5 Assignment; Successors and Assigns; No Third Party Rights. This
Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be null and void. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors, permitted assigns and legal representatives. This Agreement shall be
for the sole benefit of the parties to this Agreement and their respective
heirs, successors, permitted assigns and legal representatives and is not
intended, nor shall be construed, to give any Person, other than the parties
hereto and their respective heirs, successors, assigns and legal
representatives, any legal or equitable right, remedy or claim hereunder.
7.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original agreement, but all of which together shall
constitute one and the same instrument.
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7.7 Titles and Headings. The titles and headings in this Agreement are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
7.8 Entire Agreement. This Agreement constitute the entire agreement
among the parties with respect to the matters covered hereby and thereby and
supersede all previous written, oral or implied understandings among them with
respect to such matters.
7.9 Severability. The invalidity of any portion hereof shall not affect
the validity, force or effect of the remaining portions hereof. If it is ever
held that any restriction hereunder is too broad to permit enforcement of such
restriction to its fullest extent, such restriction shall be enforced to the
maximum extent permitted by law.
7.10 Interpretation. Unless otherwise indicated to the contrary herein
by the context or use thereof: (i) the words, "herein," "hereto," "hereof" and
words of similar import refer to this Agreement as a whole and not to any
particular Section or paragraph hereof; (ii) words importing the masculine
gender shall also include the feminine and neutral genders, and vice versa; and
(iii) words importing the singular shall also include the plural, and vice
versa.
7.11 No Strict Construction. Each of the parties hereto acknowledge
that this Agreement has been prepared jointly by the parties hereto, and shall
not be strictly construed against either party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BROOKWOOD NEW WORLD INVESTORS, LLC
By: Brookwood New World Co., LLC, Manager
By:
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
BROOKWOOD NEW WORLD CO., LLC
By:
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
NON-MANAGING MEMBERS OF BROOKWOOD
NEW WORLD INVESTORS, LLC
By: Brookwood New World Co., LLC,
Attorney in Fact
By:
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
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GREENLIGHT CAPITAL, L.P.
By: Greenlight Capital, L.L.C., it general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
GREENLIGHT CAPITAL QUALIFIED, L.P.
By: Greenlight Capital, L.L.C., it general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
GREENLIGHT CAPITAL OFFSHORE, LTD.
By: Greenlight Capital, Inc., it investment advisor
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SCHEDULE 1.1
PURCHASE PRICE ALLOCATION
Security Name Number of Securities Price of Securities
------------- -------------------- -------------------
Greenlight Capital Qualified, L.P.
Series F 4,333.022 2,860,905.24
Common 1,732.225 17,322.25
Warrants 420.442 --
Greenlight Capital, L.P.
Series F 909.000 599,863.55
Common 363.200 3,532.00
Warrants 88.100 --
Greenlight Capital Offshore, Ltd.
Series F 7,255.000 4,789,277.97
Common 2,899.900 28,999.00
Warrants 703.700 --
