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EXHIBIT 10.5
EXECUTION COPY
CVC SECURITIES PURCHASE AGREEMENT
CVC SECURITIES PURCHASE AGREEMENT dated as of June 16, 1997 by and
between Plainwell Holding Company, a Delaware corporation (the "Company"), and
Citicorp Venture Capital, Ltd., a New York corporation ("CVC").
CVC desires to purchase from the Company and the Company desires to
sell to CVC (i) 27,297.31 shares of the Company's Series B Preferred Stock, par
value $.01 per share (the "Series B Preferred"), (ii) 765.00 shares of the
Company's Class A Common Stock, par value $.01 per share (the "Class A Common"),
(iii) 74,460.00 shares of the Company's Class B Common Stock, par value $.01 per
share (the "Class B Common"), and (iv) stock purchase warrants exercisable for
257,334.62 shares of Class B Common, as adjusted pursuant to the terms of such
warrants (the "CVC Warrants"). The execution and delivery of (i) each of the
Executive Stock Purchase Agreements, (ii) the Securities Purchase Agreements,
(iii) the Larkspur Agreement, and (iv) the Investor Stock Purchase Agreement
(each as defined below) are conditions to CVC's obligations under this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" of any particular Person or entity means any other
Person or entity controlling, controlled by or under common control with such
particular Person or entity and, in the case of a limited partnership,
"Affiliate" includes limited partners of such limited partnership.
"CCT" means CCT II Partners, L.P., a Delaware limited partnership.
"CCT Purchase Agreement" means that Securities Purchase Agreement by
and between CVC and CCT, pursuant to which CCT is purchasing shares of Class A
Common, Class B Common, and Series B Preferred from CVC.
"Certificate of Incorporation" means the Company's certificate of
incorporation, as amended from time to time.
"Common Stock" means the Class A Common and the Class B Common, as
adjusted for any stock split, dividend, share combination, share exchange,
recapitalization, merger, consolidation, or other reorganization.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Executive Stock Purchase Agreements" means the Executive
Employment and Stock Purchase Agreements and Executive Stock Purchase Agreements
between the Company and each of Xxxxxxx X. New, Xxxxxx X. Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx, Xxxx Xxxxxx and Xxxxx Xxxxxx (each an "Executive"), pursuant to
which, among other things, each Executive is, or will be, purchasing shares of
Common Stock.
"Investor Stock Purchase Agreement" means that Stock Purchase
Agreement dated as of the date hereof, by and between the Company and Xxxxxxx
Xxxxxx (the "Investor"), pursuant to which the Investor is purchasing shares of
Class A Common, Class B Common, and Series B Preferred.
"Larkspur Agreement" means that Stock Purchase Agreement,
dated as of the date hereof, by and between the Company and Larkspur Capital
Corporation ("Larkspur"), pursuant to which Larkspur is purchasing shares of
Class B Common and Series B Preferred.
"Officer's Certificate" means a certificate signed by the
Company's president or its chief financial officer, stating that (i) the officer
signing such certificate has made or has caused to be made such investigations
as are necessary in order to permit him to verify the accuracy of the
information set forth in such certificate or any documents accompanying such
certificate and (ii) such certificate does not misstate any material fact and
does not omit to state any fact necessary to make the certificate not
misleading.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Company, CVC, CCT, the
Executives, the Investor, Larkspur, and the Individual Purchasers (as defined
below).
"Restricted Securities" means (i) the Stock (as defined below)
issued hereunder, (ii) any securities issued with respect to the Stock referred
to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, and (iii) any securities issued pursuant to an exchange
of such Stock. As to any particular Restricted Securities, such securities shall
cease to be Restricted Securities when they have (a) been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, (b) become eligible for sale pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act, or (c) been
otherwise transferred and new certificates for them not bearing the Securities
Act legend set forth in Section 9 have been delivered by the Company. Whenever
any particular securities cease to be Restricted Securities, the holder thereof
shall be entitled to receive from the Company, without expense, new securities
of like tenor not bearing a Securities Act legend of the character set forth in
Section 9.
"SBA" means the United States Small Business Administration,
and any successor agency performing the functions thereof.
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"SBIC" means a Small Business Investment Company licensed by
the SBA under the SBIC Act.
"SBIC Act" means the Small Business Investment Act of 1959, as
amended.
"SBIC Regulations" means the SBIC Act and the regulations
issued by the SBA thereunder, codified as Title 13 of the Code of Federal
Regulations ("13 CFR"), parts 107 and 121.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" means that Securities Purchase
Agreement, dated as of the date hereof, among the Company and the persons listed
on the signature pages thereto (the "Individual Purchasers") pursuant to which
the Individual Purchasers are purchasing shares of Class A Common, Class B
Common, and Series B Preferred.
"Stock" means the Class A Common, the Class B Common, the
Series B Preferred, and the Underlying Stock.
"Stockholders Agreement" means the Stockholders Agreement,
dated as of the date hereof, by and among the Company, CVC, CCT, the Executives,
the Investor, Larkspur, and the Individual Purchasers.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a partnership, association
or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
partnership, association or other business entity gains or losses or shall be or
control the managing director or general partner of such partnership,
association or other business entity.
"Underlying Stock" means (i) the Common Stock issued or
issuable upon exercise of the CVC Warrants, and (ii) all shares issued with
respect to, or as a result of, a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation, or other
reorganization.
2. Authorization and Closing.
(a) Authorization of the Stock. The Company shall authorize
the issuance and sale to CVC of (i) shares of its Class A Common, Class B
Common, and Series B Preferred, each
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such shares having the rights and preferences set forth in Exhibit A attached
hereto, and (ii) the CVC Warrants, which CVC Warrants shall be in the form of
Exhibit B attached hereto.
(b) Purchase and Sale of the Stock. At the Closing, the
Company shall sell to CVC and, subject to the terms and conditions set forth
herein, CVC shall purchase from the Company (i) 27,297.31 shares of Class A
Common at a price of $1.00 per share, (ii) 765.00 shares of Class B Common at a
price of $1.00 per share, (iii) 74,460.00 shares of Series B Preferred at a
price of $100.00 per share, and (iv) the CVC Warrants.
(c) The Closing. The closing of the purchase and sale of the
Stock (the "Closing") shall take place at the offices of Xxxxxx & Xxxxxxx, Xxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx on the date hereof or at such other place
or such other time or date as the Company may designate. At the Closing, the
Company shall deliver to CVC stock certificates evidencing the Stock and the CVC
Warrants to be purchased by CVC, each registered in the name of CVC or its
nominee, upon payment of the purchase price thereof by a cashier's or certified
check, or by wire transfer of immediately available funds to an account
designated by the Company.
3. Financial Statements and Other Information. The Company
shall, upon the request of CVC and for so long as CVC holds any Underlying
Stock, deliver to CVC:
(a) as soon as available but in any event within 30 days after
the end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the period from the
beginning of the fiscal year to the end of such month, and unaudited
consolidating and consolidated balance sheets of the Company and its
Subsidiaries as of the end of such monthly period, setting forth in each case
comparisons to the annual budget and to the corresponding period in the
preceding fiscal year, and all such statements shall be prepared in accordance
with generally accepted accounting principles, consistently applied, subject to
the absence of footnote disclosures and to normal year-end adjustments, and
shall be accompanied by an Officer's Certificate;
(b) within 45 days after the end of each quarterly accounting
period in each fiscal year, unaudited consolidating and consolidated statements
of income and cash flows of the Company and its Subsidiaries for such quarterly
period, and unaudited consolidating and consolidated balance sheets of the
Company and its Subsidiaries as of the end of such quarterly period, setting
forth in each case comparisons to the annual budget and to the corresponding
period in the preceding fiscal year, and all such statements shall be prepared
in accordance with generally accepted accounting principles, consistently
applied, subject to the absence of footnote disclosures and to normal year-end
adjustments, and shall be accompanied by an Officer's Certificate;
(c) within 90 days after the end of each fiscal year, audited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, and audited consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such fiscal year, setting forth in each case comparisons to the annual budget
and to the preceding fiscal year, all prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by (i)
with respect to the consolidated
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portions of such statements, an opinion of an independent accounting firm of
recognized national standing, (ii) a certificate from such accounting firm,
addressed to the Company's board of directors, stating that in the course of its
examination nothing came to its attention that caused it to believe that there
was any default by the Company or any Subsidiary in the fulfillment of or
compliance with any of the terms, covenants, provisions or conditions of any
material agreement to which the Company or any Subsidiary is a party or, if such
accountants have reason to believe any default by the Company or any Subsidiary
exists, a certificate specifying the nature and period of existence thereof, and
(iii) a copy of such firm's annual management letter to the board of directors;
(d) promptly upon receipt thereof, any additional reports,
management letters or other detailed information concerning significant aspects
of the Company's or its Subsidiaries' operations or financial affairs given to
the Company by its independent accountants (and not otherwise contained in other
materials provided hereunder);
(e) at least 30 days prior to the end of each fiscal year, an
annual budget prepared on a monthly basis for the Company and its Subsidiaries
for the following fiscal year (displaying anticipated statements of income and
cash flows and balance sheets), and following preparation thereof quarterly
revisions of such budget and any other significant budgets prepared by the
Company or its Subsidiaries, and within 30 days after any monthly period in
which there is a material adverse deviation from the annual budget, an Officer's
Certificate explaining the deviation and what actions the Company has taken and
proposes to take with respect thereto; and
(f) with reasonable promptness, such other information and
financial data concerning the Company and its Subsidiaries as any Person
entitled to receive information under this Section 3 may reasonably request.
4. Inspection of Property. The Company shall permit any
representatives designated by CVC (so long as CVC holds any Underlying Stock),
upon reasonable notice and during normal business hours and such other times as
any such holder may reasonably request, to (i) visit and inspect any of the
properties of the Company and its Subsidiaries, (ii) examine the corporate and
financial records of the Company and its Subsidiaries and make copies thereof or
extracts therefrom, and (iii) discuss the affairs, finances and accounts of any
such corporations with the directors, officers, key employees and independent
accountants of the Company and its Subsidiaries.
5. Regulatory Compliance Cooperation.
(a) Regulatory Violation. In the event that CVC determines
that it has a Regulatory Problem (as defined below), the Company agrees to take
all such actions as are reasonably requested by CVC in order (i) to effectuate
and facilitate any transfer by CVC of any securities of the Company then held by
CVC to any Person designated by CVC, (ii) to permit CVC (or any of its
Affiliates) to exchange all or a portion of any voting security then held by it
on a share-for-share basis for shares of a nonvoting security of the Company,
which nonvoting security shall be identical in all respects to the voting
security exchanged for it, except that it shall be nonvoting and shall be
convertible into a voting security on such terms as are requested by CVC in
light of
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regulatory considerations then prevailing, and (iii) to continue and preserve
the respective allocation of the voting interests with respect to the Company
provided for in the Stockholders Agreement, and with respect to CVC's ownership
of the Company's Stock. Such actions may include, but shall not necessarily be
limited to entering into such additional agreements, adopting such amendments to
the Certificate of Incorporation and bylaws of the Company and taking such
additional actions as are reasonably requested by CVC in order to effectuate the
intent of the foregoing. For purposes of this Agreement, a "Regulatory Problem"
means any set of facts or circumstances wherein it has been asserted by any
governmental regulatory agency (or CVC believes that there is a substantial risk
of such assertion) that CVC is not entitled to hold, or exercise any significant
right with respect to, the Stock.
(b) Use of Proceeds. The Company hereby agrees that: (i) the
Company will provide CVC with a written summary certified by the Company's
president or chief financial officer describing in reasonable detail the
Company's use of the proceeds received hereunder (including the intended use of
any such unused proceeds as of the date of such summary) within 75 days of the
date hereof, and (ii) the Company will repurchase at the request of CVC the
Stock for an amount equal to the purchase price thereof (plus any accrued
interest or dividends thereon), payable in immediately available funds, in the
event that CVC determines in its reasonable good faith judgment that a
Regulatory Violation (as defined below) occurred. In the event of such
repurchase, the Company shall pay for such Stock by a cashier's check, certified
check or wire transfer within 30 days after the Company's receipt of the
repurchase request, and upon such payment, CVC shall deliver the certificates
evidencing the securities being repurchased.
For purposes of this Agreement, "Regulatory Violation" means
(a) a diversion of the proceeds of the sale of Stock hereunder described on the
use of proceeds statement delivered by the Company at the Closing, if such
diversion was effected without obtaining the prior written consent of CVC (which
consent may be withheld in CVC's sole discretion) or (b) a change in the
principal business activity of the Company and its Subsidiaries to an ineligible
business activity (within the meaning of the SBIC Regulations), if such change
occurs within one year after the date hereof.
(c) Number of Stockholders. As long as CVC holds any Stock,
the Company shall notify CVC (a) at least 15 days prior to taking any action
after which the number of record holders of the Company's voting stock would be
increased from fewer than 50 to 50 or more, and (b) of any other action or
occurrence after which the number of record holders of the Company's voting
stock was increased (or would increase) from fewer than 50 to 50 or more, as
soon as practicable after the Company becomes aware that such other action or
occurrence has occurred or is proposed to occur.
(d) Economic Impact Information. Promptly after the end of
each fiscal year (but in any event prior to May 31 of each year) the Company
shall deliver to CVC a written assessment of the economic impact of CVC's
investment in the Company, specifying the full-time equivalent jobs created or
retained in connection with the investment, the impact of the investment on the
businesses of the Company in terms of expanded revenue and taxes, and other
economic benefits resulting from the investment, including but not limited to,
technology development or
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commercialization, minority business development, urban or rural business
development, expansion of exports.
6. Notice of Developments. The Company will give prompt
written notice to CVC of any material adverse development causing a breach of
any of the above representations and warranties. No disclosure by the Company
pursuant to this Section 6, however, shall prevent or cure any
misrepresentation, breach of warranty, or breach of contract.
7. Representations and Warranties of the Company. The
Company hereby represents and warrants to CVC that:
(a) Organization and Corporate Power. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and is qualified to do business in every jurisdiction in which its
ownership of property or conduct of business requires it to qualify. The Company
has all requisite corporate power and authority to carry out the trans actions
contemplated by this Agreement.
(b) Authorization; No Breach. The execution, delivery and
performance of this Agreement has been duly authorized by the Company. This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement, the offering, sale and issuance of the Stock hereunder and the
fulfillment of and compliance with the respective terms hereof and thereof by
the Company, do not and shall not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or encumbrance
upon the Company's capital stock or assets pursuant to, (iv) give any third
party the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to, the charter or bylaws of the Company, or any law,
statute, rule or regulation to which the Company is subject, or any agreement,
instrument, order, judgment or decree to which the Company is subject.
(c) Capitalization. Immediately following the Closing, the
authorized capital stock of the Company shall consist of:
(i) 560,000 shares of Class A Common, of which 3,000 shares
shall be issued and outstanding and 560,000 shares of Class B Common, of which
175,974.36 shares shall be issued and outstanding; 497,000 shares of Class A
Common shall be reserved for issuance upon conversion of the Class B Common;
376,582 shares of Class B Common shall be reserved for issuance upon exercise of
(A) the CVC Warrants and (B) incentive stock options expected to be given to
certain members of management of the Company pursuant to the terms and
conditions of a stock option plan adopted by the Company's board of directors;
and
(ii) 40,000 shares of the Company's Series A Preferred Stock,
par value $.01 per share (the "Series A Preferred"), of which 40,000 shares
shall be issued and outstanding, and 40,000 shares of Series B Preferred, of
which 38,210.26 shares shall be issued and outstanding.
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Except as set forth in this Section 7(c), immediately following the consummation
of the transactions contemplated hereby, neither the Company nor any Subsidiary
shall have outstanding any stock or securities convertible or exchangeable for
any shares of its capital stock or containing any profit participation features,
nor shall it have outstanding any rights or options to subscribe for or to
purchase its capital stock or any stock or securities convertible into or
exchangeable for its capital stock, options under the Plan or any stock
appreciation rights or phantom stock plans. There are no statutory or, to the
best of the Company's knowledge, contractual stockholders preemptive rights or
rights of refusal with respect to the issuance of the Stock hereunder.
Immediately following the consummation of the transactions contemplated hereby,
all of the outstanding shares of the Company's capital stock shall be validly
issued, fully paid and nonassessable.
(d) Securities Laws. To the best of the Company's knowledge,
the Company has not violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital stock, and the
offer, sale and issuance of the Stock hereunder do not require registration
under the Securities Act or any applicable state securities laws.
(e) Small Business Matters. The Company, together with its
"affiliates" (as that term is defined in 13 CFR Section 121.401), is a "smaller
business concern" within the meaning of the SBIC regulations, including 13 CFR
Section 121.802. The information regarding the Company and its affiliates set
forth in the SBA Form 480, Form 652 and Section A of Form 1031 is accurate and
complete. Copies of such forms shall have been completed by the Company and
delivered to CVC at the Closing. Neither the Company nor any Subsidiary
presently engages in, or shall hereafter engage in, any activities, nor shall
the Company or any Subsidiary use directly or indirectly the proceeds from the
sale of the Stock hereunder for any purpose, for which an SBIC is prohibited
from providing funds by SBIC regulations, including 13 CFR Section 107.804 and
Section 107.901.
8. Investor's Investment Representations. CVC hereby
represents that it is acquiring the Restricted Securities purchased hereunder or
acquired pursuant hereto for its own account with the present intention of
holding such securities for purposes of investment, and that it has no intention
of selling such securities in a public distribution in violation of the federal
securities laws or any applicable state securities laws. Each certificate for
Restricted Securities shall be imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON JUNE 16, 1997, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE CVC
SECURITIES PURCHASE AGREEMENT, DATED AS OF JUNE 16, 1997 BETWEEN THE
ISSUER (THE "COMPANY") AND CITICORP VENTURE CAPITAL, LTD. A COPY OF
SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE."
9. SBA Forms. The Company shall deliver to CVC prior to the
Closing:
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(a) duly completed and executed SBA Forms 480, 652, and Part A
of 1031;
(b) a business plan showing the Company's financial
projections (including balance sheets and income and cash flow
statements) for the period ending December 31, 1997;
(c) a written statement from the Company regarding its
intended use of the proceeds of the purchase of Stock hereunder; and
(d) a list, after giving effect to the transactions
contemplated by this Agreement, of (a) the name of each of the
Company's directors, (b) the name and title of each of the Company's
officers, and (c) the name of each of the Company's stockholders
setting forth the number and class of shares held.
10. Miscellaneous.
(a) Expenses. The Company agrees to pay and hold CVC harmless
from and against liability for the payment of all fees and expenses incurred in
connection with the transactions contemplated by this Agreement and each of the
agreements contemplated hereby, including (i) reasonable attorneys',
consultants' and accountants' fees and expenses arising in connection with the
negotiation, execution and consummation of the transactions contemplated by this
Agreement and each of the agreements contemplated hereby, (ii) reasonable fees
and expenses incurred with respect to any amendments or waivers (whether or not
the same become effective) under or in respect of this Agreement, the
Registration Rights Agreement, the Stockholders Agreement, the CCT Purchase
Agreement, the agreements contemplated hereby or the Certificate of
Incorporation, (iii) stamp and other taxes which may be payable in respect of
the execution and delivery of this Agreement, (iv) reasonable fees and expenses
incurred in respect of the enforcement of the rights granted under this
Agreement, the agreements contemplated hereby and the Certificate of
Incorporation, and (v) fees and expenses incurred by CVC in filing with any
governmental agency with respect to its investment in the Company or any other
filing with any governmental agency with respect to the Company which mentions
CVC.
(b) Waiver of Jury Trial. The parties to this Agreement each
hereby waives, to the fullest extent permitted by law, any right to trial by
jury of any claim, demand, action, or cause of action (i) arising under this
Agreement or (ii) in any way connected with or related or incidental to the
dealings of the parties hereto in respect of this Agreement or any of the
transactions related hereto, in each case whether now existing or hereafter
arising, and whether in contract, tort, equity, or otherwise. The parties to
this Agreement each hereby agrees and consents that any such claim, demand,
action, or cause of action shall be decided by court trial without a jury and
that the parties to this Agreement may file an original counterpart of a copy of
this Agreement with any court as written evidence of the consent of the parties
hereto to the waiver of their right to trial by jury.
(c) Remedies. CVC shall have all rights and remedies set forth
in this Agreement and the Certificate of Incorporation and all rights and
remedies which CVC have been granted at any time under any other agreement or
contract and all of the rights which CVC have under any law. The
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parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any Person
having any rights under this Agreement may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
(d) Notices. Any notice provided for in this Agreement must be
in writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
To the Company:
Plainwell Holding Company
c/o Plainwell Paper Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
With copies to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To CVC:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
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With a copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
(e) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of CVC
or holders of Restricted Securities are also for the benefit of, and enforceable
by, any subsequent holder of Restricted Securities.
(f) Consent to Amendments. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of holders of a majority of the issued and outstanding shares of the
Stock issued hereunder. No other course of dealing between the Company and CVC
or any delay in exercising any rights hereunder or under the Certificate of
Incorporation shall operate as a waiver of any rights of CVC.
(g) Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by CVC or on its behalf.
(h) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(i) Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings,
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agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
(j) Time is of the Essence. Each of the parties to this
Agreement hereby agrees that time is of the essence in the performance of this
Agreement and with respect to all duties and periods specified herein.
(k) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(l) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE
WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(m) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
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13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
PLAINWELL HOLDING COMPANY
By: ___________________________
Name:
Title:
CITICORP VENTURE CAPITAL, LTD.
By: ___________________________
Name:
Title:
14
Exhibit A
Certificate of Incorporation
(see attached)
A-1
15
Exhibit B
Form of Warrant
(see attached)
B-1
