STOCK PURCHASE AGREEMENT
Exhibit
99.1
Execution
Copy
THIS
STOCK PURCHASE AGREEMENT (the “Agreement”) is made
as of the 26th day of October, 2009, by and between NightWatch Capital Partners
II, LP (the “Seller”), a limited
liability company organized under the laws of Delaware, and Double Black Diamond
Offshore Ltd., a Cayman Islands exempted company, and Black Diamond Offshore
Ltd., a Cayman Islands exempted company (collectively, the “Purchaser”).
WHEREAS,
The Seller desires to sell to Purchaser, and Purchaser desires to purchase and
accept from the Seller, all of the shares of common stock of Kana Software, Inc.
(“Kana” or the
“Company”), a
Delaware corporation, owned by the Seller (collectively, the “Purchased Shares”) on
the terms and subject to the conditions of this Agreement; and
WHEREAS,
each of the Purchaser and the Seller desires that the foregoing transaction be
completed on such terms and subject to such conditions and wish to make certain
representations, warranties and covenants in connection therewith.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
the Seller and the Purchaser agree as follows:
1. Purchase and Sale of
Purchased Shares.
1.1 Agreement to Sell and
Purchase the Shares. At the Closing (as defined in Section
1.3), the Seller will, on the terms and subject to the terms of this Agreement,
sell, assign, transfer and deliver to the Purchaser, and the Purchaser will
purchase and accept from the Seller, the Purchased Shares (as set forth on the
signature page hereto) against payment of the Purchase Price (as defined in
Section 1.2).
All
certificates representing the Purchased Shares being sold by the Seller will be
duly endorsed by such Seller (or accompanied by duly executed stock transfer
powers executed in favor of the Purchaser), with all necessary transfer tax
stamps acquired at the Seller’s expense affixed.
1.2 Purchase
Price. Purchaser will pay to the Seller the purchase price
(the “Purchase
Price”) per share for the Purchased Shares to be purchased and sold
pursuant to this Agreement, calculated and paid as follows:
(a) At
the Closing (as defined in Section 1.3(a)), $0.75 per Purchased Share (the
“Initial Purchase
Price”); and
(b) In
the event that the transactions contemplated by the Kana APA (as defined in
Section 1.3(a)) are consummated, within two Business Days following such
consummation (as defined in Section 1.3(a)), the amount per purchased share
calculated by taking the net cash per share as of the closing of the KANA APA (
the “Closing Cash Per Share”)(for purposes of this sentence, any payables or
other liabilities shall be deducted from cash except to the extent already
considered by 1.2 (c) below), less $.79 per share (the “Closing Purchase
Price”), plus
(c) within
160 days after the closing of the KANA APA, the additional amount of net cash
per share of the Company representing the favorable resolution of all Kana APA
escrow agreements after the closing of the Kana APA, if any, measured 150 days
after the closing of the Kana APA (the “Total Purchase
Price”).
1.3 Closing. (a)
The closing (the “Closing”) of the
purchase and sale of the Purchased Shares shall take place at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, within
two Business Days following the announcement of the execution of the Asset
Purchase Agreement, by and among Xxx Technology Corp, Inc. and Kana, dated as of
October 26, 2009 (the “Kana APA”), or at
such other time and place as the Seller and the Purchaser mutually agree upon
orally or in writing (such date the “Closing
Date”). For purposes of this Agreement, “Business Day” means
any day other than Saturday, Sunday or any other day on which commercial banks
in New York City are authorized or required by Law (as defined in Section
2.4(b)) to remain closed.
(b) The
Seller shall deliver to the Purchaser:
(i) no
later than two Business Days prior to the Closing, wire transfer instructions,
in writing, designating the Seller’s account(s) to which the Purchaser shall
deliver the Initial Purchase Price at Closing in accordance with the terms and
conditions of this Agreement;
(ii) at
or prior to the Closing, a certificate or certificates representing the
Purchased Shares that the Purchaser is purchasing at such Closing, duly endorsed
by the Seller (or accompanied by duly executed stock transfer powers executed in
favor of the Purchaser), with all necessary transfer tax stamps acquired at the
Seller’s expense affixed;
(c) At
or prior to the Closing, the Purchaser shall deliver to the Seller a wire
transfer of immediately available funds to an account or accounts designated by
the Seller, in the aggregate amount equal to the Initial Purchase
Price.
2. Representations and
Warranties of the Seller. As a material inducement to the Purchaser to
enter into this Agreement and purchase the Purchased Shares hereunder, the
Seller hereby represents and warrants to the Purchaser as of the date hereof and
as of the Closing Date that:
2.1 Organization, Execution and
Effect of Agreement. (a) The Seller is a limited
liability company that (A) is duly organized, validly existing and in good
standing under the Laws (as defined herein) of its jurisdiction of formation,
(B) is duly qualified or licensed to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which the character of
the properties owned or leased by it or the nature of its business makes such
qualification necessary, except for such of the foregoing in which the failure
to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have or result in a material adverse effect
on the authority or ability of Seller to enter into this Agreement or the
Transaction Documents or consummate the transactions contemplated hereby or
thereby, (C) has the requisite power and authority to execute and deliver this
Agreement and the Transaction Documents to which it is a party and to perform
the transactions contemplated hereby and thereby to be performed by it, and (D)
has duly taken all necessary action required to be taken under applicable Law
for the due authorization of the execution and delivery by the Seller of this
Agreement and the Transaction Documents to which it is a party and the
performance by it of the transactions contemplated hereby or
thereby.
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(b) This
Agreement has been, and the Transaction Documents to which the Seller is a party
will be, duly and validly executed and delivered by such Seller and, assuming
the due execution and delivery of this Agreement by Purchaser, and assuming the
due execution and delivery of the Transaction Documents by any other parties
thereto, constitutes a legal, valid and binding obligation of the Seller,
enforceable against such Seller in accordance with their terms.
2.2 Ownership. The
Seller is the true and lawful owner of record, and has the sole voting power and
sole dispositive power over, the Purchased Shares. The Purchased
Shares represent all of the shares of common stock of the Company and other
securities convertible for or exchangeable into common stock of the Company
owned by the Seller and its Affiliates (as defined in Section
11.2). The delivery of the certificates representing the Purchased
Shares being sold by the Seller will transfer to Purchaser good and valid title
to such Purchased Shares, free of any liens, security interests or other
encumbrances, claims or voting or other restrictions (collectively, “Liens”) of any kind
adverse to the Purchaser, other than any restrictions on resale of the Shares as
may be imposed under applicable securities laws of the U.S. and any state
thereof.
2.3 No
Options. There are no outstanding subscriptions, options,
rights (including phantom stock rights), warrants, calls, commitments,
understandings, arrangements, plans or other agreements of any kind affecting
the Seller’s Purchased Shares.
2.4 No
Restrictions. (a) There is no suit, action, claim,
investigation or inquiry by any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentally of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision (“Governmental
Authority”), and no legal, administrative or arbitration proceeding
pending or, to the Seller’s knowledge, threatened against the Seller or any of
its Purchased Shares, with respect to the execution, delivery and performance of
this Agreement or any Transaction Documents or the transactions contemplated
hereby or thereby or any other agreement entered into by such Seller in
connection with the transactions contemplated hereby or thereby.
(b) The
execution and delivery by Seller of this Agreement and the Transaction Documents
to which it is a party do not, and the performance by the Seller of the
transactions contemplated hereby and thereby to be performed by it will not,
conflict with, or result in any material violation of, or constitute a material
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any material
obligations or the loss of a material benefit or the incurrence of a material
liability under, (i) any provision of the certificate of incorporation or bylaws
or comparable governing documents of the Company, any of its subsidiaries or the
Seller, if applicable, or (ii) to the knowledge of Seller, any material permit
or approval (“Permit”), if any,
issued to the Company, any of its subsidiaries or the Seller, under any statute,
law, rule, regulation or ordinance (collectively, “Laws”) or any
judgment, decree, order, writ, permit or license (collectively, “Orders”) relating to
the Company, any of its subsidiaries or such Seller, except, in the case of such
of the foregoing as applicable to the Company or any of its subsidiaries, but
not the Seller, for those as would not, individually or in the aggregate,
reasonably be expected to have or result in a material adverse effect on the
business, financial condition, results of operations or prospects of the
business of the Company.
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(c) The
execution, delivery and performance by the Seller of its obligations under this
Agreement and the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not (i)
result in the violation by the Seller or, to the knowledge of the Seller, by the
Company of any Law or Order applicable only to it or any of its Purchased Shares
or (ii) conflict with, result in any violation or breach of, constitute (with or
without notice or lapse of time or both), a default under or require the Seller
or, to the knowledge of Seller, require the Company to obtain any consent,
approval or action of, make any filing with or give any notice to, or result in
or give to any Person (as defined in Section 11.2) any right of payment or
reimbursement, termination, cancellation, modification or acceleration, or
result in the creation or imposition of any Lien upon the Seller’s Purchased
Shares, under any of, the terms conditions or provisions of any agreement,
commitment, lese, license, evidence of indebtedness, mortgage, indenture,
security agreement, instrument, note, bond, franchise, permit, concession or
other instrument, obligation or agreement of any kind (collectively, “Contracts”) to which
the Seller is a party or by which such Seller or any of its assets or properties
are bound, except in the case of any of the foregoing as applicable to the
Company or any of its subsidiaries, but not the Seller, for such of the
foregoing as would not, individually or in the aggregate, reasonably be expected
to have or result in a material adverse effect on the business, financial
condition, results of operations or prospects of the business of the
Company.
2.5 Approvals and
Consents. No material consent, approval or action of, filing
with or notice to any Governmental Authority or Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order or any
Contract to which the Seller is a party or its Purchased Shares are bound for
the execution and delivery of this Agreement and any Transaction Documents by
the Seller, the performance by the Seller of its obligations hereunder or
thereunder or the consummation by the Seller of the transactions contemplated
hereby or thereby.
2.6 Contracts. The
Seller is not party to any Contract with, and does not have any claim or right
against the Company or any of its subsidiaries.
2.7 Brokers’
Fees. The Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser could become
liable or obligated.
3. Representations and
Warranties of the Purchaser. The Purchaser hereby represents, warrants
and covenants as of the date hereof and as of the Closing Date
that:
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3.1 Organization, Authorization
And Effect Of Agreement. (a) The Purchaser is an exempted
company that (A) is duly organized, validly existing and in good standing under
the Laws of its jurisdiction of incorporation or formation, (B) is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in each jurisdiction in which the character of the properties owned
or leased by it or the nature of its business makes such qualification
necessary, except for such of the foregoing in which the failure to be so
qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have or result in a material adverse effect on the
authority or ability of the Purchaser to enter into this Agreement, the
Transaction Documents or to consummate the transactions contemplated hereby or
thereby, (C) has the requisite power and authority to execute and deliver this
Agreement and the Transaction Documents to which it is a party and to perform
the transactions contemplated hereby and thereby to be performed by it, and (D)
has duly taken all necessary action required to be taken under applicable Law
for the due authorization of the execution and delivery by the Purchaser of this
Agreement and the Transaction Documents to which it is a party and the
performance by it of the transactions contemplated hereby or
thereby.
(b) This
Agreement has been, and the Transaction Documents to which the Purchaser is a
party will be, duly and validly executed and delivered by such Purchaser and,
assuming the due execution and delivery of this Agreement by Seller, and
assuming the due execution and delivery of the Transaction Documents by any
other parties thereto, constitutes a legal, valid and binding obligation of the
Purchaser, enforceable against such Purchaser in accordance with their
terms.
3.2 No Restrictions.
(a) There is no suit, action, claim, investigation or inquiry by any
Governmental Authority, and no legal, administrative or arbitration proceeding
pending or, to the Purchaser’s knowledge, threatened against the Purchaser, with
respect to the execution, delivery and performance of this Agreement or any
Transaction Document or the transactions contemplated hereby or thereby or any
other agreement entered into by such Purchaser in connection with the
transactions contemplated hereby or thereby.
(b) The
execution and delivery by Purchaser of this Agreement and the Transaction
Documents to which it is a party do not, and the performance by the Purchaser of
the transactions contemplated hereby and thereby to be performed by it will not,
conflict with, or result in any material violation of, or constitute a material
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any material
obligations or the loss of a material benefit or the incurrence of a material
liability under, (i) any provision of the certificate of incorporation or bylaws
or comparable governing documents of the Purchaser, or (ii) to the knowledge of
Purchaser, any material Permit, if any, issued to the Purchaser under any Laws
or any Orders relating to such Purchaser, in each case except as would not,
individually or in the aggregate, reasonably be expected to have or result in a
material adverse effect on the authority or ability of the Purchaser to enter
into this Agreement or the Transaction Documents or to consummate the
transactions contemplated hereby and thereby.
(c) The
execution, delivery and performance by the Purchaser of its obligations under
this Agreement and the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby will not (i)
result in the violation by the Purchaser of any Law or Order applicable only to
it or (ii) conflict with, result in any violation or breach of, constitute (with
or without notice or lapse of time or both), a default under or require the
Purchaser to obtain any consent, approval or action of, make any filing with or
give any notice to, or result in or give to, any Person any right of payment or
reimbursement, termination, cancellation, modification or acceleration under any
of, the terms, conditions or provisions of any Contracts to which the Purchaser
is a party or by which such Purchaser or any of its assets or properties are
bound, in each case except as would not, individually or in the aggregate,
reasonably be expected to have or result in a material adverse effect on the
authority or ability of the Purchaser to enter into this Agreement or the
Transaction Documents or to consummate the transactions contemplated hereby and
thereby.
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3.3 Approvals And
Consents. No consent, approval or action of, filing with or
notice to any Governmental Authority or Person is necessary or required under
any of the terms, conditions or provisions of any Law or Order or any Contract
to which the Purchaser is a party for the execution and delivery of this
Agreement and any Transaction Documents by the Purchaser, the performance by the
Purchaser of its obligations hereunder or thereunder or the consummation by the
Purchaser of the transactions contemplated hereby or thereby except as would
not, individually or in the aggregate, reasonably be expected to have or result
in a material adverse effect on the authority or ability of the Purchaser to
enter into this Agreement or the Transaction Documents or to consummate the
transactions contemplated hereby and thereby.
3.4 Purchase Entirely for Own
Account. The Purchased Shares to be received by the Purchaser will be
acquired by the Purchaser for investment purposes only, and not with a view to
the resale of any part thereof, and that the Purchaser has no present intention
of selling or granting any participation in the same. By executing this
Agreement, the Purchaser further represents that it does not have any Contract,
undertaking, agreement or arrangement with any person or entity to sell,
transfer or grant participations to such person or entity or to any third person
or entity, with respect to any of the Purchased Shares. The Purchaser
acknowledges and agrees that it is acquiring the Purchased Shares subject to
certain restrictions on resale that are imposed under applicable U.S. and state
securities laws.
3.5 Brokers’
Fees. The Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Seller could become
liable or obligated.
4. Agreements With Respect To
Material Non-Public Information.
4.1 Each
of the Purchaser and the Seller is sophisticated with respect to transactions in
the Purchased Shares and has adequate information concerning the business and
financial condition of the issuer of the Purchased Shares to make an informed
decision regarding the purchase and sale contemplated hereby and has
independently and without reliance upon the other and based on such information
as it has deemed appropriate in its independent judgment made its own analysis
and decision to enter into the transaction.
4.2 Each
party hereto has executed a confidentiality agreement with the Company and
hereby acknowledges that the other party and its representatives may have
received and may possess material non-public information (“Non-public
Information”) regarding the Purchased Shares, the issuer of the Purchased
Shares or its other outstanding debt or securities that may not have been
provided to the other party, including, without limitation, information received
on a confidential basis directly or indirectly from the issuer, and that each
party is precluded from disclosing such information to the
other. Such Non-public Information may be indicative of a value of
the Purchased Shares that is substantially more than the Total Purchase Price
reflected in the transaction contemplated hereby or otherwise adverse to either
party’s interest, and, therefore, such information might be material to the
Seller’s decision to sell the Purchased Shares or the Purchaser’s decision to
purchase the Purchased Shares. Each of the Purchaser and Seller
acknowledges that it has not requested and does not wish to receive Non-public
Information from the other party and agrees that neither party shall have any
liability to the other with respect to the non-disclosure of Non-public
Information.
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4.3 Each
of Purchaser and Seller expressly releases the other, its Affiliates and their
respective officers, directors, employees, agents and controlling persons from
any and all liabilities arising from their respective failure to disclose or
review, such Non-public Information, and each of Purchaser and Seller agrees to
make no claim against the other, its Affiliates and their respective officers,
directors, employees, shareholders, partners, agents, representatives or
Affiliates with respect to the transaction, relating to such failure to
disclose, or to review Non-public Information.
4.4 Purchaser
and Seller are relying on the other’s representations in engaging in the
transaction contemplated hereby, and would not engage in such transaction in the
absence of such representations.
4.5 This
Section 4 represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof as to disclosure or
non-disclosure of the Non-public Information, and supersedes any prior or
contemporaneous agreements relating thereto.
5. Covenants
5.1 Each
of Purchaser and Seller shall, (i) subject to the satisfaction of the conditions
to such party’s obligations set forth in Sections 6, 7, and 8, execute and
deliver such other documents, certificates, agreements and other writings and
(ii) take such other actions, in each case, as may be necessary or reasonably
requested by the other in order to consummate or implement expeditiously the
transactions contemplated hereby in accordance with the terms of this
Agreement.
5.2 Each
of Purchaser and Seller shall use its reasonable best efforts to cause all
conditions precedent to the obligations of Purchaser and the Sellers to be
satisfied. Upon the terms and subject to the conditions of this
Agreement, each of Purchaser and Seller will use its reasonable best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable consistent with applicable law to
consummate and make effective in the most expeditious manner practicable the
transactions contemplated hereby.
5.3 For
a period of six months following the Closing Date, the Seller shall not, and
shall cause its Affiliates, directors, officers, and employees not to, directly
or indirectly, acting alone or in concert with others, acquire, sell or
otherwise transfer ownership of (including “beneficial ownership” as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) any securities
or indebtedness of, or any economic interest in, the Company or any of its
subsidiaries (including any participation interest therein or any assets
underlying such securities or indebtedness).
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6. Conditions Precedent To
Obligations Of Purchaser And The Seller. The obligations of
each of Purchaser and each the Seller under this Agreement to consummate the
transactions contemplated hereby will be subject to the satisfaction, at or
prior to the Closing, of the following conditions:
6.1 Restraining
Action. There shall not have been entered a preliminary or
permanent injunction, temporary restraining order or other judicial or
administrative order or decree in any jurisdiction, the effect of which
prohibits the Closing.
7. Additional Conditions
Precedent To Obligations Of Purchaser. The obligations of
Purchaser under this Agreement to consummate the transactions contemplated
hereby will be subject to the satisfaction, at or prior to the Closing, of all
of the following conditions, any one or more of which may be waived at the
option of Purchaser:
7.1 No Material
Misrepresentation Or Breach. (a) There shall have been no
material breach by the Seller in the performance of any of the covenants herein
to be performed by him, her or it in whole or in part prior to the Closing, and
(b) the representations and warranties of the Seller contained in this Agreement
(i) that are not qualified as to materiality or material adverse effect shall be
true and correct in all material respects and (ii) that are so qualified shall
be true and correct, in each case on the date hereof and as of the Closing Date
as if made anew on the Closing Date, except for representations or warranties
made as of a specified date, which shall be true and correct in all material
respects as of the specified date.
7.2 Closing
Deliverables. The Purchaser shall have received the closing
deliverables described in Section 1.3(b).
8. Additional Conditions
Precedent To Obligations Of The Seller. The obligations of the
Seller under this Agreement to consummate the transactions contemplated hereby
will be subject to the satisfaction, at or prior to the Closing, of all the
following conditions, any one or more of which may be waived by the Seller at
its option:
8.1 No Material
Misrepresentation Or Breach. (a) There shall have been no
material breach by Purchaser in the performance of any of the covenants herein
to be performed by it in whole or in part prior to the Closing, and (b) the
representations and warranties of Purchaser contained in this Agreement (i) that
are not qualified as to materiality or material adverse effect shall be true and
correct in all material respects and (ii) that are so qualified (if any) shall
be true and correct, in each case on the date hereof and as of the Closing Date
as if made anew on the Closing Date, except for representations or warranties
made as of a specified date, which shall be true and correct in all material
respects as of the specified date.
8.2 Closing
Deliverables. The Seller shall have received the closing
deliverables described in Section 1.3(c).
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9. Termination. (a) Notwithstanding
anything contained in this Agreement to the contrary, this Agreement may be
terminated at any time prior to the Closing:
(i) by
the mutual written consent of Purchaser and the Seller;
(ii) by
either Purchaser or the Seller, if the Closing shall not have occurred on or
before October 30, 2009, provided, however, that the right to terminate this
Agreement pursuant to this Section 9(a)(ii) will not be available to any party
whose breach of any provision of this Agreement results in the failure of the
Closing to occur by such time;
(iii) by
either Purchaser or the Seller if there shall have been entered a final,
nonappealable order or injunction of any Governmental Authority restraining or
prohibiting the consummation of the transactions contemplated hereby or any
material part thereof;
(iv) by
Purchaser if the Seller shall have (i) failed to perform any obligation or to
comply with any agreement or covenant of the Seller under this Agreement or (ii)
breached any of its representations or warranties, in each case such that the
condition in Section 7.1 would not be satisfied, which failure has not been
cured within ten calendar days of notice from Purchaser; or
(v) by
the Seller if Purchaser shall have (i) failed to perform any obligation or
comply with any agreement or covenant of Purchaser under this Agreement or (ii)
breached any of its representations or warranties, in each case such that the
condition in Section 8.1 would not be satisfied, which failure has not been
cured within ten calendar days of notice from the Seller.
(b) In
the event of the termination of this Agreement under this Section 9, each party
hereto will pay all of its own fees and expenses. There will be no further
liability hereunder on the part of any party hereto if this Agreement is so
terminated, except by reason of a prior breach of any representation, warranty
or covenant contained in this Agreement.
10. Release of
Claims. Subject to the occurrence of the Closing, the Seller,
its representatives and Affiliates hereby release and forever discharge the
Company, its subsidiaries, representatives and Affiliates and the Purchaser, its
representatives and Affiliates from any and all actions, causes of action,
suits, debts, claims and demands (except for liabilities and obligations arising
under this Agreement and the Transaction Documents) that arise out of or relate
to acts, events, conditions or omissions occurring or existing at any time prior
to and including the Closing Date.
11. Miscellaneous.
11.1 Survival. The
warranties, representations and covenants of the Company and the Investor
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement.
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11.2 Successors and Assigns;
Assignment. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties (including permitted
transferees of any Purchased Shares). Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto or
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. This Agreement may not be assigned by any party
without the prior written consent of the other party. Notwithstanding
the foregoing, Purchaser may assign this Agreement and any or all rights or
obligations hereunder, without the consent of the Seller, to one or more of its
Affiliates; provided that no
assignment or attempted assignment shall relieve the assignor of any of its
obligations under this Agreement. For purposes of this Agreement,
“Affiliate” means any individual, group of individuals or entity, including
without limitation, any trust, custodian, individual retirement account,
corporation, limited liability company, joint venture, limited partnership or
general partnership (each, a “Person”) that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with a Person, or (ii) any other
Person that, directly or indirectly, is the beneficial owner of a majority of
any class of equity securities of the specified person or of which the specified
Person is directly or indirectly the owner of a majority of any class of equity
securities.
11.3 Press
Releases. Purchaser and Seller will consult with the other
before issuing, and provide the other the opportunity to review and comment
upon, any press release or other public statements with respect to this
Agreement, the Transaction Documents or the transactions contemplated hereby or
thereby and will not issue any such press release or make any such public
statement without the other party’s prior written consent, except that a party
hereto may make such disclosures as are required by applicable Law, but only
after disclosing to the other party the basis for concluding that such
disclosure is so required and consulting with the other parties regarding the
contents of such disclosure prior thereto.
11.4 Governing Law. This
Agreement shall be governed by and construed under the laws of the State of New
York as applied to agreements among New York residents entered into and to be
performed entirely within New York. Any judicial proceeding brought with respect
to this Agreement must be brought in any court of competent jurisdiction in the
State of New York, and, by execution and delivery of this Agreement, each party
(i) accepts, generally and unconditionally, the exclusive jurisdiction of such
court and any related appellate court, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement and (ii) irrevocably
waives any obligation it may now or hereafter have as to the venue of any such
suit, action or proceeding brought in such a court or that such court is an
inconvenient forum.
11.5 Specific
Performance. Each party hereto acknowledges and agrees that
one or more of the other parties would be irreparably damaged in the event the
provisions of this Agreement are not specifically enforced in the event of a
breach hereof by such party and that such damage could not be adequately
remedied by the payment of money damages. Consequently, in addition
to any other remedies that may be available at law or at equity, each party
agrees that upon any breach or threatened breach of this Agreement by such
party, one or more of the other parties hereto shall be entitled to temporary
and permanent injunctive or other appropriate equitable relief to restrain or
otherwise prevent such breach or threatened breach without posting any bond and
without proving that monetary damages would be inadequate.
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11.6 Limitation on
Damages. Notwithstanding any other provisions of this
Agreement, in no event will any party hereto be liable to any other party for,
nor will any party be entitled to claim for, any lost profits or consequential,
exemplary, indirect, punitive or special damages or losses with respect to any
claim arising out of or related to this Agreement or the transactions
contemplated hereby.
11.7 Titles and Subtitles.
The titles and subtitles used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this
Agreement.
11.8 Notices. All notices
required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day; (iii) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (iv) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the address as specified below or
to any other address or addresses as any party may from time to time designate
by written notice to the other party; as set forth on the signature page hereof
or at such other address as such party may designate by ten days advance written
notice to the other parties hereto.
If to
Purchaser, to:
Double
Black Diamond Offshore, Ltd.
Black
Diamond Offshore, Ltd.
c/o
Carlson Capital, L.P.
0000
XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxx
If to
Seller, to:
NightWatch
Capital Advisors, LLC
0000
Xxxxx Xxx Xxxxx, Xxxxx 000
Xxxxx,
Xxxx 00000
Attention:
Xxxx X. Xxxxxxx
11.9 Amendments and
Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of Purchaser and Seller. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of any securities
purchased under this Agreement at the time outstanding (including securities
into which such securities are convertible), each future holder of all such
securities and the Seller.
11.10 Severability. If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall he enforceable in accordance with its terms.
-11-
11.11 Entire Agreement.
This Agreement and the documents referred to herein Constitute the entire
agreement among the parties and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein.
11.12 Counterparts. This
Agreement may be executed in two or more Counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the above
written.
|
Double
Black Diamond Offshore Ltd.
|
||
|
By:
Xxxxxxx Capital, L.P., its investment manager
|
||
|
By:
Asgard Investment Corp., its general partner
|
||
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
President
|
||
|
Black
Diamond Offshore Ltd.
|
||
|
By:
Xxxxxxx Capital, L.P., its investment manager
|
||
|
By:
Asgard Investment Corp., its general partner
|
||
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxx
|
||
|
Title:
President
|
||
|
NightWatch
Capital Partners II, LP
|
||
|
By:
|
/s/
Xxxx X. Xxxxxxx
|
|
|
Name:
Xxxx X. Xxxxxxx
|
||
|
Title:
Managing Principal of NightWatch Capital Management LLC, the General
Partner
|
||
Owner of
5,705,814 Purchased Shares on the date hereof.
-13-
