Exhibit 10.25
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
BY AND AMONG
X'XXXXXXXX FILMS HOLDING CORPORATION,
X'XXXXXXXX FILMS MANAGEMENT, LLC,
AND
MATRIX FILMS, LLC
DATED AS OF
FEBRUARY 15, 2006
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS ................................................... 2
1.1 Certain Defined Terms ........................................... 2
1.2 Other Interpretive Provisions ................................... 5
ARTICLE II PURCHASE AND SALE ............................................ 6
2.1 Subscription for the Shares ..................................... 6
2.2 Use of Proceeds ................................................. 6
ARTICLE III DELIVERIES AND OTHER ACTIONS ................................ 6
3.1 Deliveries by the Seller ........................................ 6
3.2 Deliveries by the Buyers ........................................ 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER ................. 8
4.1 Organization .................................................... 8
4.2 Authorization; Enforceability ................................... 8
4.3 Capital Stock of the Seller ..................................... 8
4.4 Capital Stock of the Company .................................... 9
4.5 Subsidiaries .................................................... 9
4.6 No Conflicts or Approvals ....................................... 10
4.7 Proceedings ..................................................... 10
4.8 No Brokers' or Other Fees ....................................... 10
4.9 No Other Representations or Warranties .......................... 10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BUYERS .................. 11
5.1 Organization .................................................... 11
5.2 Authorization; Enforceability ................................... 11
5.3 No Approvals or Conflicts ....................................... 11
5.4 Proceedings ..................................................... 12
5.5 No Brokers' or Other Fees ....................................... 12
5.6 Investment Intent ............................................... 12
5.7 Ability to Bear Risk; Sophistication; Inquiry ................... 12
5.8 Accredited Investor ............................................. 13
5.9 Financing ....................................................... 13
5.10 No Reliance ..................................................... 13
5.11 No Other Representations or Warranties .......................... 13
ARTICLE VI COVENANTS AND AGREEMENTS ..................................... 13
6.1 Transfer Taxes .................................................. 13
6.2 Confidentiality ................................................. 13
6.3 Injunctive Relief; Limitation on Scope .......................... 14
ARTICLE VII INDEMNIFICATION ............................................. 14
7.1 Indemnification by the Seller ................................... 14
7.2 Indemnification by the Buyers ................................... 14
7.3 Indemnification as Exclusive Remedy ............................. 14
7.4 Limitations on Indemnification .................................. 15
7.5 Procedures ...................................................... 15
ARTICLE VIII MISCELLANEOUS .............................................. 16
8.1 Fees and Expenses ............................................... 16
8.2 Governing Law ................................................... 16
8.3 Projections ..................................................... 16
8.4 Amendment ....................................................... 17
8.5 Assignment ...................................................... 17
8.6 Waiver .......................................................... 17
8.7 Notices ......................................................... 17
8.8 Complete Agreement .............................................. 19
8.9 Counterparts .................................................... 19
8.10 Publicity ....................................................... 19
8.11 Headings ........................................................ 19
8.12 Severability .................................................... 19
8.13 Third Parties ................................................... 20
8.14 Further Assurances .............................................. 20
8.15 Arbitration ..................................................... 20
8.16 Consent to Jurisdiction; Waiver of Jury Trial ................... 20
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Schedules
Schedule 1.1(a) Knowledge of the Buyers
Schedule 4.1 Organization
Schedule 4.3 Capital Stock of the Seller
Schedule 4.4 Capital Stock of the Company
Schedule 4.6(a) No Conflicts (Seller)
Schedule 4.6(b) Consents (Seller)
Schedule 4.7 Proceedings (Seller)
Schedule 5.3(a) No Conflicts (Buyer)
Schedule 5.3(b) Consents (Buyer)
Schedule 5.4 Proceedings (Buyer)
Exhibits
Exhibit A Form of Promissory Note
Exhibit B Form of Seller's Receipt
Exhibit C Form of Stockholders' Agreement
Exhibit D Form of Buyers' Receipt
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of February 15, 2006, is by
and among X'Xxxxxxxx Films Holding Corporation, a Delaware corporation (the
"SELLER"), Matrix Films, LLC, a Virginia limited liability company (the "EQUITY
INVESTOR"), and X'Xxxxxxxx Films Management, LLC, a Virginia limited liability
company (the "MANAGEMENT INVESTOR" and, together with the Equity Investor, the
"BUYERS").
A. All of the issued and outstanding shares of capital stock of the
Seller are owned by PolyOne Corporation, an Ohio corporation ("POLYONE");
B. The Seller owns the issued and outstanding shares of capital stock
of X'Xxxxxxxx Films, Inc., a Delaware corporation (the "COMPANY");
C. The Company is engaged in the business of developing and processing
polymer film and sheeting products and producing polymer film and sheeting, in
each case as conducted by the Company in the United States of America (the "EFG
BUSINESS"); and
D. The Seller desires to sell to the Equity Investor, and the Equity
Investor desires to purchase and acquire from the Seller, upon the terms and
subject to the conditions set forth in this Agreement, 33 shares of the voting
Common Stock, par value $0.01 per share, of the Seller (the "EQUITY VOTING
SHARES"), and 187 shares of the non-voting Common Stock, par value $0.01 per
share, of the Seller (the "EQUITY NON-VOTING SHARES" and, together with the
Equity Voting Shares, the "EQUITY SHARES"), which Equity Shares will,
immediately after the execution of this Agreement, evidence approximately 25% of
the issued and outstanding capital stock of the Seller, all only to the extent
further described below, in consideration of certain payments by the Equity
Investor specifically described in this Agreement.
E. The Seller desires to sell to the Management Investor, and the
Management Investor desires to purchase and acquire from the Seller, upon the
terms and subject to the conditions set forth in this Agreement, 49 shares of
the voting Common Stock, par value $0.01 per share, of the Seller (the
"MANAGEMENT VOTING SHARES"), and 491 shares of the non-voting Common Stock, par
value $0.01 per share, of the Seller (the "MANAGEMENT NON-VOTING SHARES" and,
together with the Management Voting Shares, the "MANAGEMENT SHARES"), which
Management Shares will, immediately after the execution of this Agreement,
evidence approximately 57% of the issued and outstanding capital stock of the
Seller, all only to the extent further described below, in consideration of
certain payments by the Management Investor specifically described in this
Agreement (the Management Shares together with the Equity Shares, the "SHARES").
NOW, THEREFORE, in consideration of the mutual promises and
representations and upon the terms and subject to the conditions set forth in
this Agreement, and other good and valuable consideration, had and received, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
"1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"AAA" has the meaning set forth in SECTION 8.15.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly or indirectly controls, is controlled by, or is
under common control with, such specified Person. The terms "control,"
"controlled by" and "under common control with", with respect to the
relationship between or among two or more Persons, means the
possession, directly or indirectly, of the power to direct or cause
the direction of the affairs or management of a Person, whether
through the ownership of voting securities, by contract or otherwise,
including the ownership, directly or indirectly, of securities having
the power to elect a majority of the board of directors or similar
body governing the affairs of such Person.
"AGREEMENT" means this Stock Purchase Agreement (including the
Disclosure Schedules), as amended, modified or supplemented from time
to time.
"ANCILLARY AGREEMENTS" means the Promissory Note, the Seller's
Receipt, the Buyers' Receipt, the Stockholders' Agreement, and each
other agreement, document, instrument or certificate contemplated by
this Agreement or to be executed by the Buyers or the Seller in
connection with the consummation of the transactions contemplated by
this Agreement, in each case only as applicable to the relevant party
or parties to such Ancillary Agreement, as indicated by the context in
which such term is used.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks in New York, New York are required or authorized by
Law to be closed.
"BUYERS" has the meaning set forth in the preamble.
"BUYER INDEMNIFIED PERSONS" has the meaning set forth in SECTION
7.1(A).
"BUYER MATERIAL ADVERSE EFFECT" means any change, occurrence or
development that has a material adverse effect on the business,
results of operations or financial condition of either of the Buyers
and its subsidiaries, taken as a whole, but excludes any effect (a)
resulting from general economic conditions (whether as a result of
acts of terrorism, war (whether or not declared), armed conflicts or
otherwise), (b) affecting companies in the industry in which it
conducts its business generally, (c) resulting from the announcement
or performance of this
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Agreement or the transactions contemplated hereby or (d) resulting
from any actions required under this Agreement to obtain any Consent
from any Person.
"BUYERS' RECEIPT" has the meaning set forth in SECTION 3.2(B).
"CLAIM" has the meaning set forth in SECTION 7.5(A).
"CLAIM NOTICE" has the meaning set forth in SECTION 7.5(A).
"CLOSING" means the time at which the Buyers and the Seller consummate
the sale of the Shares as provided in this Agreement by the execution
and delivery by the Seller of the documents and instruments referred
to in SECTION 3.1 against delivery by the Buyers of the documents,
items and instruments referred to in SECTION 3.2.
"CLOSING DATE" means the date on which the Closing occurs.
"COMMON STOCK" has the meaning set forth in SECTION 4.3.
"COMPANY" has the meaning set forth in the recitals.
"COMPANY MATERIAL ADVERSE EFFECT" means any change, occurrence or
development that has a material adverse effect on the business,
results of operations or financial condition of the EFG Business,
taken as a whole, but excludes any effect (a) resulting from general
economic conditions (whether as a result of acts of terrorism, war
(whether or not declared), armed conflict or otherwise), (b) impacting
companies in the industry in which the EFG Business is conducted
generally, (c) resulting from the announcement or performance of this
Agreement or the transactions contemplated hereby or (d) resulting
from any actions required under this Agreement to obtain any Consent
from any Person.
"COMPANY STOCK" has the meaning set forth in SECTION 4.4.
"CONSENT" means any consent, approval, authorization, waiver or
notification required to be obtained from, filed with or delivered to
any Governmental Authority or other Person in connection with the
consummation of the transactions contemplated hereby.
"DISCLOSURE SCHEDULES" means the schedules attached to this Agreement.
"EFG BUSINESS" has the meaning set forth in the recitals.
"EQUITY INVESTOR" has the meaning set forth in the preamble.
"EQUITY NON-VOTING SHARES" has the meaning set forth in the recitals.
"EQUITY SHARES" has the meaning set forth in the recitals.
"EQUITY VOTING SHARES" has the meaning set forth in the recitals.
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"GENERAL ENFORCEABILITY EXCEPTIONS" has the meaning set forth in
SECTION 4.2.
"GOVERNMENTAL AUTHORITY" means any government or other political
subdivision (whether federal, state, local, feral or foreign), or any
agency or instrumentality of any such government or political
subdivision, or any federal, state, local, feral or foreign court or
arbitrator, court sanctioned or agreed-upon.
"GOVERNMENTAL ORDER" has the meaning set forth in SECTION 4.6(A).
"INDEMNIFIED PARTY" means a party entitled to indemnification under
this Agreement.
"INDEMNIFYING PARTY" means a party obligated to provide
indemnification under this Agreement.
"KNOWLEDGE OF THE BUYERS" means the actual knowledge of the
individuals listed on SCHEDULE 1.1(A).
"LAW" means any law, statute, code, ordinance, rule or regulation of
any Governmental Authority.
"XXXXXXX XXXX" has the meaning set forth in SECTION 2.2(C).
"LIEN" means any voting trust, shareholder agreement, proxy or other
similar restriction, lien, mortgage, pledge, security interest, or
other encumbrance.
"LOSSES" means any and all claims, liabilities, losses, damages,
fines, penalties and costs (in each case including reasonable
out-of-pocket expenses).
"MANAGEMENT INVESTOR" has the meaning set forth in the preamble.
"MANAGEMENT NON-VOTING SHARES" has the meaning set forth in the
recitals.
"MANAGEMENT SHARES" has the meaning set forth in the recitals.
"MANAGEMENT VOTING SHARES" has the meaning set forth in the recitals.
"OUTSTANDING NON-VOTING COMMON STOCK" has the meaning set forth in
SECTION 4.3.
"OUTSTANDING STOCK" has the meaning set forth in SECTION 4.3.
"OUTSTANDING VOTING COMMON STOCK" has the meaning set forth in SECTION
4.3.
"PERMITTED LIEN" means Liens for Taxes, assessments and other charges
of Governmental Authorities not yet due and payable or being contested
in good faith by appropriate proceedings.
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"PERSON" means any individual, sole proprietorship, partnership, firm,
corporation, association, trust, unincorporated organization, joint
venture, limited liability company, Governmental Authority or other
legal entity.
"POLYONE" has the meaning set forth in the recitals.
"PROCEEDING" means any action, suit, legal proceeding, administrative
enforcement proceeding or arbitration proceeding before any
Governmental Authority.
"PROMISSORY NOTE" has the meaning set forth in SECTION 2.1.
"PURCHASE PRICE" has the meaning set forth in SECTION 2.1.
"RESPONSIBLE PARTY" has the meaning set forth in SECTION 7.5(B)(II).
"SELLER" has the meaning set forth in the preamble.
"SELLER INDEMNIFIED PERSONS" has the meaning set forth in SECTION 7.2.
"SELLER'S RECEIPT" has the meaning set forth in SECTION 3.1(B).
"SHARES" has the meaning set forth in the recitals.
"STOCKHOLDERS' AGREEMENT" has the meaning set forth in SECTION 3.1(D).
"SUBSCRIPTION" has the meaning set forth in SECTION 2.1.
"TAX" or "TAXES" means any income, alternative or add-on minimum,
gross receipts, sales, use, ad valorem, franchise, profits, license,
transfer, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, value added, property, environmental or windfall
profits taxes, customs, duties or similar fees, assessments or charges
of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any Taxing
Authority.
"TAXING AUTHORITY" means any Governmental Authority responsible for
the administration or imposition of any Tax.
"THIRD PARTY CLAIM" has the meaning set forth in SECTION 7.5(B)(I).
"TRANSFER TAXES" has the meaning set forth in SECTION 6.1.
1.2 OTHER INTERPRETIVE PROVISIONS. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement refer to
this Agreement as a whole (including any Disclosure Schedules hereto) and not to
any particular provision of this Agreement, and all Article, Section, Schedule
and Exhibit references are to this Agreement unless otherwise specified. The
words "include," "includes" and "including" will be deemed to be followed by the
phrase "without limitation." The meanings given to terms defined herein and
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references herein will be equally applicable to both the singular and plural
forms of such terms. Whenever the context may require, any pronoun includes the
corresponding masculine, feminine and neuter forms. Except as otherwise
expressly provided herein, all references to "dollars" or "$" will be deemed
references to the lawful money of the United States of America.
ARTICLE II
PURCHASE AND SALE
2.1 SUBSCRIPTION FOR THE SHARES. Concurrently with the execution of
this Agreement and subject to the terms and conditions set forth in this
Agreement, the Buyers shall subscribe and apply for the purchase of the Shares
(the "SUBSCRIPTION"), and the Buyers shall pay to the Seller, in exchange
therefor, the aggregate sum of $1,515,000 (the "PURCHASE PRICE"), consisting of
$550,000 in cash from the Equity Investor, $875,000 in cash from the Management
Investor, and $90,000 of which will be paid in the form of a promissory note
issued by the Management Investor to the Seller as payee in substantially the
form attached hereto as EXHIBIT A (the "PROMISSORY NOTE"). The Buyers shall pay
the Purchase Price to the Seller by wire transfers of immediately available
funds to accounts designated in writing by Seller, which accounts will have been
designated at least one Business Day prior to the date of this Agreement, and by
delivery of the Promissory Note at Closing.
2.2 USE OF PROCEEDS. At Closing, the Seller shall pay out of the
Purchase Price, by wire transfers of immediately available funds to accounts
designated in writing (which accounts will have been designated at least one
Business Day prior to the date of this Agreement) (a) $250,000 to Matrix Capital
Markets Group, Inc. as a closing fee; (b) $50,000 to PolyOne as reimbursement
for the prior payment by PolyOne of a retainer fee for Matrix Capital Markets
Group, Inc.; (c) $205,577.93 to PolyOne as reimbursement for the prior payment
by PolyOne of legal fees to XxXxxxx Xxxx, A Professional Corporation, which firm
serves as counsel for the Buyers ("XXXXXXX XXXX"), in excess of $50,000; (d)
$105,000 to PolyOne as reimbursement for the prior payment by PolyOne to GMAC
Commercial Finance, LLC of certain due diligence deposits; (e) $50,000 to
PolyOne as reimbursement for the prior payment by PolyOne to LaSalle Business
Credit, LLC of a deposit; (f) $22,337.50 to PolyOne as reimbursement for the
prior payment by PolyOne to Chicago Title Insurance Co. of certain transfer
taxes and recording fees; (g) $1,200 to PolyOne as reimbursement for the prior
payment by PolyOne to Wachovia of environmental review completion expenses; and
(h) $29,150 to PolyOne as reimbursement for the prior payment by PolyOne to
Survey America Inc., or individual surveyors, for surveys of EFG Business real
estate in both Winchester, Virginia and Lebanon, Pennsylvania.
ARTICLE III
DELIVERIES AND OTHER ACTIONS
3.1 DELIVERIES BY THE SELLER. Concurrently with the execution of this
Agreement, the Seller shall deliver, or cause to be delivered, to each Buyer the
following items:
(a) newly-issued stock certificate(s) representing the Shares
purchased by such Buyer and issued in the name of such Buyer;
(b) a receipt, in substantially the form attached hereto as EXHIBIT B
(the "SELLER'S RECEIPT"), evidencing the Seller's receipt of the Purchase Price;
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(c) copies of the resolutions of the board of directors of the Seller
authorizing and approving this Agreement, the Subscription, and all other
transactions and agreements contemplated by this Agreement, certified by the
Secretary or an Assistant Secretary of the Seller to be true and complete and in
full force and effect and unmodified as of the date of this Agreement;
(d) a stockholders' agreement, in the form attached hereto as EXHIBIT
C, by and among the Seller, the Buyers, and PolyOne (the "STOCKHOLDERS'
AGREEMENT"), duly executed by the Seller and PolyOne;
(e) a copy of the certificate of incorporation of the Seller certified
as of a date no more than 16 days prior to the date of this Agreement by the
Secretary of State of the State of Delaware;
(f) a certificate of the Secretary of State of the State of Delaware
as to the good standing of the Seller as of a date no more than 16 days prior to
the Closing Date;
(g) a certificate of the Secretary or an Assistant Secretary of the
Seller, given by him or her on behalf of the Seller and not in his or her
individual capacity, certifying as to the bylaws of the Seller.
(h) a copy of the certificate of incorporation of the Company
certified as of a date no more than 16 days prior to the date of this Agreement
by the Secretary of State of the State of Delaware;
(i) a certificate of the Secretary of State of the State of Delaware
as to the good standing of the Company as of a date no more than 16 days prior
to the Closing Date; and
(j) a certificate of the Secretary or an Assistant Secretary of the
Company, given by him or her on behalf of the Company and not in his or her
individual capacity, certifying as to the bylaws of the Company.
3.2 DELIVERIES BY THE BUYERS. Concurrently with the execution of this
Agreement, the Buyers shall deliver, or cause to be delivered, to the Seller the
following items:
(a) the Purchase Price as provided in SECTION 2.1, including the
Promissory Note, duly executed by the Management Investor.
(b) a receipt, in substantially the form attached hereto as EXHIBIT D
(the "BUYERS' RECEIPT"), evidencing the Buyers' receipt of the Shares;
(c) a copy of the Stockholders' Agreement, duly executed by the
Buyers;
(d) copies of the resolutions of the boards of managers or the
members, as appropriate, of each Buyer authorizing and approving this Agreement,
the Subscription, and all other transactions and agreements contemplated by this
Agreement, certified by the Secretary or an Assistant Secretary of each Buyer to
be true and complete and in full force and effect and unmodified as of the date
of this Agreement;
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(e) a copy of the articles of organization of the Buyers certified as
of a date no more than 16 days prior to the date of this Agreement by the State
Corporation Commission of the Commonwealth of Virginia;
(f) a certificate of existence issued by the State Corporation
Commission of the Commonwealth of Virginia for each Buyer as of a date no more
than 16 days prior to the Closing Date; and
(g) a certificate of the Secretary or an Assistant Secretary of each
Buyer, given by him or her on behalf of such Buyer and not in his or her
individual capacity, certifying as to the operating agreement of such Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyers as follows:
4.1 ORGANIZATION. Each of the Seller and the Company is a corporation
duly incorporated, validly existing and in good standing under the Laws of the
State of Delaware. The Seller has the requisite corporate power and authority to
carry on the EFG Business as currently conducted. The Company has the requisite
corporate power and authority to own, lease and operate its assets and to carry
on its business as now being conducted and, except as indicated on SCHEDULE 4.1,
is duly qualified or licensed to do business and is in good standing in the
jurisdictions in which the ownership of its property or the conduct of its
business requires such qualification or license, except where the failure to be
so qualified or licensed (a) would not reasonably be expected, individually or
in the aggregate, to have a material adverse effect on the ability of the Seller
to consummate the transactions contemplated by this Agreement or (b) with
respect to the Company, would not reasonably be expected, individually or in the
aggregate, to have a Company Material Adverse Effect.
4.2 AUTHORIZATION; ENFORCEABILITY. The Seller has the requisite
corporate power and authority to execute and deliver this Agreement and the
Ancillary Agreements to which it is a party and to perform its obligations
hereunder and thereunder. The execution and delivery of this Agreement and all
applicable Ancillary Agreements by the Seller and the performance by it of its
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action on the part of such party and no other corporate or stockholder
proceedings or actions are necessary to authorize and consummate this Agreement,
the Ancillary Agreements or the transactions contemplated hereby or thereby.
This Agreement has been duly executed and delivered by the Seller and, assuming
due authorization, execution and delivery by the Buyers, constitutes a valid and
binding agreement of the Seller, enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar Laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a Proceeding in equity or at law) (the "GENERAL ENFORCEABILITY
EXCEPTIONS").
4.3 CAPITAL STOCK OF THE SELLER. The authorized capital stock of the
Seller consists solely of 1,000 shares of common stock, par value $0.001 per
share (the "COMMON STOCK"), itself consisting of (a) 100 shares of voting Common
Stock, 18 of which are issued and
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outstanding immediately prior to the effectiveness of this Agreement (the
"OUTSTANDING VOTING COMMON STOCK") and (b) 900 shares of non-voting Common
Stock, 162 of which are issued and outstanding immediately prior to the
effectiveness of this Agreement (the "OUTSTANDING NON-VOTING COMMON STOCK" and,
together with the Outstanding Voting Common Stock, the "OUTSTANDING STOCK"). The
shares of Outstanding Stock represent the only issued and outstanding shares of
capital stock of the Seller. All of the issued and outstanding shares of
Outstanding Stock are owned, beneficially and of record, free and clear of any
Liens, other than Permitted Liens, as set forth on SCHEDULE 4.3. All of the
shares of Outstanding Stock were duly authorized and validly issued and are
fully paid and nonassessable, and each issuance of such shares was in accordance
with the requirements of all applicable federal and state securities laws.
Except for this Agreement or as set forth on SCHEDULE 4.3, there are no
outstanding subscriptions, options, warrants, calls, conversion or other rights,
agreements, commitments, arrangements or understandings relating to the sale,
issuance or voting of any shares of the capital stock of the Seller, or of any
securities or other instruments convertible into, exchangeable for or evidencing
the right to purchase any shares of capital stock of the Seller. There are no
outstanding agreements or commitments obligating the Seller to repurchase,
redeem or otherwise acquire any outstanding shares or other equity interests of
the Seller. Concurrently with the execution of this Agreement, the Seller will
issue the Shares to the Buyers free and clear of any Liens other than Liens
created by or on behalf of the Buyers. Assuming the accuracy of the
representations and warranties of the Buyers contained in ARTICLE V of this
Agreement and that the offer, sale and issuance of the Shares is exempt from the
registration requirements of the 1933 Act and all applicable state securities
laws, the Shares that are being purchased by the Buyers hereunder, when issued,
sold, and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer contained in the Stockholders Agreement and under
applicable state and federal securities laws.
4.4 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of the
Company consists solely of 1,000 shares of Common Stock, par value $0.001 per
share, 1,000 of which are issued and outstanding (the "COMPANY STOCK"). The
shares of Company Stock represent the only issued and outstanding shares of
capital stock of the Company. All of the issued and outstanding shares of
Company Stock are owned, beneficially and of record, free and clear of any
Liens, other than Permitted Liens, by the Seller. All of the shares of Company
Stock were duly authorized and validly issued and are fully paid and
nonassessable, and each issuance of such shares was in accordance with the
requirements of all applicable federal and state securities laws. Except as set
forth on SCHEDULE 4.4, there are no outstanding subscriptions, options,
warrants, calls, conversion or other rights, agreements, commitments,
arrangements or understandings relating to the sale, issuance or voting of any
shares of the capital stock of the Company, or of any securities or other
instruments convertible into, exchangeable for or evidencing the right to
purchase any shares of capital stock of the Company. There are no outstanding
agreements or commitments obligating the Seller or the Company to repurchase,
redeem or otherwise acquire any outstanding shares or other equity interests of
the Company.
4.5 SUBSIDIARIES. The Seller does not own any equity interest in any
Person other than the Company. The Company does not own any equity interest in
any Person.
4.6 NO CONFLICTS OR APPROVALS.
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(a) Except as set forth on SCHEDULE 4.6(A), the execution, delivery
and performance by the Seller of this Agreement and the Ancillary Agreements to
which it is a party, and the consummation by the Seller of the transactions
contemplated hereby and thereby, do not and will not (i) violate, conflict with
or result in a breach of the articles of incorporation or the bylaws of the
Seller or of the Company, (ii) subject to the receipt of the Consents set forth
on SCHEDULE 4.6(B), violate, conflict with or result in a breach of, or
constitute a default by the Seller or the Company (or create an event which,
with notice or lapse of time or both, would constitute a default) or give rise
to any right of termination, cancellation or acceleration under, or result in
the creation of any Lien, other than Permitted Liens, upon any of the properties
or assets of the Seller or the Company, or on the Shares, under any Material
Contract (as defined in that certain Asset Contribution and Assumption of
Liabilities Agreement, dated as of December 31, 2005, by and among PolyOne
Engineered Films, Inc., PolyOne and the Company), or (iii) subject to the
receipt of the Consents set forth on SCHEDULE 4.6(B), violate any Law or order,
writ, judgment, injunction or decree issued by any Governmental Authority (a
"GOVERNMENTAL ORDER") applicable to the Seller or the Company, or any of their
respective properties or assets, except as would not, individually or in the
aggregate, have a Company Material Adverse Effect or a material adverse effect
on the ability of the Seller to consummate the transactions contemplated by this
Agreement.
(b) Except as set forth on SCHEDULE 4.6(B), no Consent is required to
be obtained by the Seller for the consummation by the Seller of the transactions
contemplated by this Agreement that if not obtained would have a Company
Material Adverse Effect or a material adverse effect on the ability of the
Seller to consummate the transactions contemplated by this Agreement.
4.7 PROCEEDINGS. As of the date of this Agreement, except as set forth
on SCHEDULE 4.7, there are no Proceedings pending or, to the Knowledge of the
Seller, threatened against the Seller or the Company that, if adversely decided,
would have a material adverse effect on the ability of the Seller to consummate
the transactions contemplated by this Agreement.
4.8 NO BROKERS' OR OTHER FEES. Except for KeyBanc Capital Markets, (a)
no Person has been employed by or on behalf of the Seller as a broker, finder or
investment banker in connection with the transactions contemplated hereby, and
(b) no Person with which Seller has had any dealings or communications of any
kind is entitled to any fee or commission or like payment in connection with the
transactions contemplated hereby. No Buyer will be liable for any such fees,
commissions, or like payments to KeyBanc Capital Markets.
4.9 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this ARTICLE IV, neither the Seller
nor any other Person makes any other express or implied representation or
warranty to the Buyers.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each of the Buyers hereby represents and warrants, severally and not
jointly, to the Seller as follows:
5.1 ORGANIZATION. Such Buyer is a limited liability company duly
formed, validly existing and in good standing under the Laws of its jurisdiction
of formation. Such Buyer has the requisite limited liability company power and
authority to own, lease and operate its assets and to carry on its business as
now being conducted.
5.2 AUTHORIZATION; ENFORCEABILITY. Such Buyer has the requisite
limited liability company power and authority to execute and deliver this
Agreement and the Ancillary Agreements to which the Buyer is a party and perform
its obligations hereunder and thereunder. The execution and delivery of this
Agreement by such Buyer and the Ancillary Agreements to which such Buyer is a
party and the performance by such Buyers of its obligations hereunder and
thereunder have been duly authorized by all necessary limited liability company
action on the part of such Buyer and, upon such authorization, no other limited
liability company or equityholder proceedings or actions are necessary to
authorize or consummate this Agreement, the Ancillary Agreements or the
transactions contemplated hereby or thereby. This Agreement and the Ancillary
Agreements to which such Buyer is a party have been duly executed and delivered
by such Buyer and, assuming due authorization, execution and delivery by the
Seller, constitute valid and binding agreements of such Buyer, enforceable
against it in accordance with their terms, subject to the General Enforceability
Exceptions.
5.3 NO APPROVALS OR CONFLICTS.
(a) The execution, delivery and performance by such Buyer of this
Agreement and the Ancillary Agreements to which such Buyer is a party and the
consummation by such Buyer of the transactions contemplated hereby and thereby
do not and will not (i) violate, conflict with or result in a breach by such
Buyer of the organizational documents of such Buyer, (ii) violate, conflict with
or result in a breach of, or constitute a default by such Buyer (or create an
event which, with notice or lapse of time or both, would constitute a default)
or give rise to any right of termination, cancellation or acceleration under, or
result in the creation of any Lien, other than a Permitted Lien, upon any of the
properties or assets of such Buyer under, any material note, bond, mortgage,
indenture, license, lease, contract, agreement or other instrument to which such
Buyer or any of its properties or assets may be bound, or (iii) subject to the
receipt of the requisite approvals referred to on SCHEDULE 5.3(A), violate any
Governmental Order or Law applicable to such Buyer or any of its properties or
assets, except as would not, individually or in the aggregate, have a Buyer
Material Adverse Effect or a material adverse effect on the ability of such
Buyer to consummate the transactions contemplated by this Agreement.
(b) Except as set forth on SCHEDULE 5.3(B), no Consent is required to
be obtained by such Buyer for the consummation by such Buyer of the transactions
contemplated by this Agreement or the Ancillary Agreements to which such Buyer
is a party.
5.4 PROCEEDINGS. Except as set forth on SCHEDULE 5.4, there are no
Proceedings pending or, to the Knowledge of the Buyers, threatened against such
Buyer or any
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of its Affiliates that would reasonably be expected to have a material adverse
effect on the ability of such Buyer to consummate the transactions contemplated
by this Agreement or the Ancillary Agreements to which such Buyer is a party.
Except as set forth on SCHEDULE 5.4, such Buyer is not subject to any
Governmental Order that would reasonably be expected to have a material adverse
effect on the ability of such Buyer to consummate the transactions contemplated
by this Agreement or the Ancillary Agreements to which such Buyer is a party.
5.5 NO BROKERS' OR OTHER FEES. Except for Matrix Capital Markets
Group, Inc., (a) no Person has been employed by or on behalf of such Buyer as a
broker, finder or investment banker in connection with the transactions
contemplated hereby, and (b) no Person with which such Buyer has had any
dealings or communications of any kind is entitled to any fee or commission or
like payment in connection with the transactions contemplated hereby. The Seller
will not be liable for any such fees, commissions, or like payments to Matrix
Capital Markets Group, Inc.
5.6 INVESTMENT INTENT. Such Buyer is acquiring its Shares for the
Buyer's own accounts for investment and not with a view to or for sale in
connection with any distribution thereof other than in compliance with the 1933
Act. Such Buyer is aware that there are limitations and restrictions on the
circumstances under which the Buyers may offer to sell, transfer or otherwise
dispose of the Shares, so that it might not be possible to liquidate this
investment readily and it may be necessary to hold the Shares for an indefinite
period. Such Buyer agrees that it will not transfer any of the Shares, except in
compliance with the 1933 Act. Such Buyer further understands and acknowledges
that the Shares have not been registered under the 1933 Act and agrees that the
Shares may not be transferred unless (a) such transfer is pursuant to an
effective registration statement under the 1933 Act or (b) such transfer is
exempt from the provisions of Section 5 of the 1933 Act. Such Buyer agrees that
the Shares will not be offered for sale, sold, transferred, or otherwise
disposed of by such Buyer without compliance with the terms and conditions of
the Stockholders' Agreement, as amended from time to time, and applicable
federal and state securities laws.
5.7 ABILITY TO BEAR RISK; SOPHISTICATION; INQUIRY. The financial
situation of such Buyer is such that (a) it can afford to bear the economic risk
of holding the Shares for an indefinite period and (b) it can afford to suffer
the complete loss of its investment in the Shares. Such Buyer acknowledges that
it has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks of the proposed investment. Such
Buyer is familiar with the type of investment that the Shares constitutes, and
has reviewed the purchase of the Shares subscribed for herein with tax and legal
counsel to the extent that such Buyer has deemed such review advisable. Such
Buyer has been provided, to its satisfaction, the opportunity to ask questions
concerning the Company and the Seller and the terms and conditions of the
offering of the Shares. Such Buyer has had all such questions answered to its
satisfaction, and has been supplied all additional information deemed necessary
by it to verify the accuracy of the information furnished. Such Buyer
acknowledges that the Seller is specifically relying on these representations in
connection with the consummation of the transactions contemplated by this
Agreement. Such Buyer also acknowledges that all information that such Buyer has
provided concerning itself and its financial position is true and correct in all
material respects.
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5.8 ACCREDITED INVESTOR. Such Buyer is an "accredited investor" as
defined in Rule 501(a) of Regulation D promulgated under the 0000 Xxx.
5.9 FINANCING. Such Buyer has sufficient funds available to deliver
its respective portion of the Purchase Price and to consummate the transactions
contemplated by this Agreement.
5.10 NO RELIANCE. Such Buyer or its representatives have inspected and
conducted such reasonable review and analysis (financial and otherwise) of the
Company as desired by such Buyer. The Subscriptions and the consummation of the
transactions contemplated hereunder and under the Ancillary Agreements by such
Buyer are not done in reliance upon any warranty or representation by, or
information from, the Seller or the Company of any sort, oral or written, except
the warranties and representation specifically set forth in this Agreement
(including the Disclosure Schedules and Exhibits hereto) and in any certificates
required to be delivered to such Buyer by the Seller or the Company hereunder
and thereunder. Such purchase and consummation are instead done entirely on the
basis of the Buyer's own investigation, analysis, judgment and assessment of the
present and potential value and earning power of the Seller and the Company as
well as those representations and warranties by the Seller or the Company
specifically set forth in this Agreement (including the Disclosure Schedules and
Exhibits hereto) and in any certificates required to be delivered to such Buyer
by the Seller or the Company hereunder and thereunder.
5.11 PROMISSORY NOTE. The Promissory Note to be issued under this
Agreement, when issued by the Management Investor to the Seller pursuant to the
terms of this Agreement, will have been issued in compliance with all applicable
federal and state securities laws, and will be free and clear of all Liens.
5.12 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this ARTICLE V, neither such Buyer
nor any other Person makes any other express or implied representation or
warranty to the Seller.
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 TRANSFER TAXES. The Buyers, on the one hand, and the Seller, on
the other hand, shall each pay one-half of all transfer, documentary, sales,
use, registration and other such Taxes (including all applicable real estate
transfer Taxes, but excluding any Taxes based on or attributable to income or
gains) and related fees (including any penalties, interest and additions to Tax)
("TRANSFER TAXES") arising out of or incurred in connection with this Agreement.
6.2 CONFIDENTIALITY. Following the date of this Agreement, all
proprietary information obtained at any time in connection with this Agreement
or the transactions contemplated hereby (including without limitation any
information obtained in due diligence therefor) by the Buyers from or on behalf
of the Company, the Seller, PolyOne, or PolyOne's Affiliates will be kept
confidential and will not be disclosed by the Buyer; provided, that the
foregoing restriction does not apply to information that (a) is lawfully and
independently obtained by the Buyers from a third party without restriction as
to disclosure by the Buyers, (b)
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was known by the Buyers prior to its disclosure by or on behalf of the Company,
the Seller, PolyOne, or PolyOne's Affiliates, (c) is in the public domain or
enters into the public domain through no fault of the Buyers, (d) is
independently developed by the Buyers without reference to proprietary
information provided by or on behalf of the Company, the Seller, PolyOne, or
PolyOne's Affiliates, or (e) the Buyers are required by law or legal process to
disclose.
6.3 INJUNCTIVE RELIEF; LIMITATION ON SCOPE. The Buyers acknowledge
that any breach or threatened breach of the provisions of SECTION 6.2 of this
Agreement may cause irreparable injury to the Seller or the Company for which an
adequate monetary remedy does not exist. Accordingly, in the event of any such
breach or threatened breach, the Seller and the Company shall be entitled, in
addition to the exercise of other remedies, to injunctive relief, without
necessity of posting a bond, restraining the Buyers from committing such breach
or threatened breach. The rights provided under this SECTION 6.3 shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Seller and the Company.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE SELLER. Subject to the terms and conditions
set forth in this ARTICLE VII, from and after the date of this Agreement, the
Seller shall indemnify and hold harmless the Buyers, their Affiliates (other
than the Seller), and their respective officers, directors, shareholders,
employees, agents and representatives (collectively, the "BUYER INDEMNIFIED
PERSONS"), from and against any and all Losses actually sustained by any Buyer
Indemnified Person based upon the failure of or any breach of any (a)
representation or warranty by the Seller contained in this Agreement to be true
and correct on the date of this Agreement or (b) any covenant or agreement of
the Seller.
7.2 INDEMNIFICATION BY THE BUYERS. Subject to the terms and conditions
set forth in this ARTICLE VII, from and after the Closing Date, each Buyer,
severally and not jointly, shall indemnify and hold harmless the Seller, its
Affiliates, and their respective officers, directors, shareholders, employees,
agents, and representatives (collectively, the "SELLER INDEMNIFIED PERSONS"),
from and against any and all Losses actually sustained by the Seller Indemnified
Person based upon the failure of or any breach of any (a) representation or
warranty by such Buyer contained in this Agreement to be true and correct on the
date of this Agreement or (b) any covenant or agreement of such Buyer.
7.3 INDEMNIFICATION AS EXCLUSIVE REMEDY. All representations,
warranties, covenants and obligations in this Agreement and any other
certificate or document delivered pursuant to this Agreement will survive the
date of this Agreement and the consummation of the transactions contemplated
hereby and thereby. The indemnification provided for in this ARTICLE VII,
subject to the limitations set forth herein, is the exclusive post-Closing
remedy available to any party in connection with any Losses arising out of the
matters set forth in this Agreement or the transactions contemplated under this
Agreement.
7.4 LIMITATIONS ON INDEMNIFICATION.
(a) The right to indemnification of a Buyer Indemnified Person under
SECTION 7.1(A) will be reduced by (i) any third party insurance proceeds
received by or payable to, or (ii)
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any tax benefits actually realized by, (x) the Buyer Indemnified Person or (y)
the Company or the Seller, as applicable, provided that such reduction will be
equal to the product of the Buyers' percentage ownership of the capital stock of
the Seller at the time of the Loss and the dollar amount of the proceeds
actually received by or payable to, or the tax benefits actually realized by,
the Company or the Seller, as applicable. If a Buyer Indemnified Person receives
such insurance proceeds in connection with such Losses for which it has received
indemnification, the Buyers shall refund to the Seller or the Company, as
applicable, the amount of such insurance proceeds when received, up to the
amount of indemnification received. A Buyer Indemnified Person shall use all
good faith efforts to pursue third party insurance claims with respect to any
such Losses. The parties agree that any indemnification payments made pursuant
to this Agreement will be treated for tax purposes as an adjustment to the
Purchase Price, unless otherwise required by Law.
(b) No Indemnified Party will be entitled to indemnification pursuant
to this ARTICLE VII for punitive damages, or for lost profits, consequential,
indirect, exemplary or special damages.
7.5 PROCEDURES.
(a) Notice of Losses. As soon as is reasonably practicable after the
Seller or either of the Buyers has actual knowledge of any Losses for which
indemnification is available under SECTION 7.1(A) or SECTION 7.2 (a "CLAIM"),
such party shall give written notice thereof (a "CLAIM NOTICE") to the other
parties. A Claim Notice must describe the Claim in reasonable detail, and must
indicate the amount (estimated as necessary and to the extent feasible) of the
Loss that has been or will be suffered by the Indemnified Party. No delay in or
failure to give a Claim Notice by the Indemnified Party to the Indemnifying
Party will adversely affect any other rights or remedies that the Indemnified
Party has under this Agreement, or alter or relieve the Indemnifying Party of
its obligations to indemnify the Indemnified Party to the extent that such delay
or failure has not materially prejudiced the Indemnifying Party.
(b) Third Party Claims.
(i) If any Claim Notice identifies any Claim brought by a third
person (a "THIRD PARTY CLAIM"), the Indemnifying Party will have the right,
exercisable by written notice to the Indemnified Party, to assume the
defense of such Third Party Claim, with counsel selected by the
Indemnifying Party. If the Indemnifying Party assumes the defense of such
Third Party Claim, the Indemnifying Party will not be liable to the
Indemnified Party for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Party in connection with
the defense thereof and the Indemnified Party will have the right to
participate at its own expense in the defense of such Third Party Claim. If
the Indemnifying Party does not assume the defense of such Third Party
Claim, the Indemnified Party may defend such Third Party Claim at the sole
cost of the Indemnifying Party and the Indemnifying Party may still
participate in, but not control, the defense of such Third Party Claim at
the Indemnifying Party's sole cost and expense.
(ii) The party responsible for the defense of any Third Party
Claim (a "RESPONSIBLE PARTY") shall, to the extent reasonably requested by
the other party, keep
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such other party informed as to the status of such Third Party Claim,
including all settlement negotiations and offers. With respect to a Third
Party Claim for which the Seller is the Responsible Party, the Buyers shall
use all reasonable efforts to make available to the Seller all books and
records of the Buyers relating to such Third Party Claim and shall
cooperate with the Seller in the defense of the Third Party Claim. No
settlement or compromise of any Third Party Claim may be effected (A) by
the Indemnifying Party without the written consent of the Indemnified Party
(which consent may not be unreasonably withheld or delayed) unless all
relief provided is paid or satisfied in full by the Indemnifying Party or
(B) by the Indemnified Party without the consent of the Indemnifying Party.
In no event will an Indemnifying Party be liable for any settlement
effected without its prior written consent.
ARTICLE VIII
MISCELLANEOUS
8.1 FEES AND EXPENSES. Except as otherwise provided in this Agreement
and the Ancillary Agreements, each of the Seller and the Buyers shall bear their
own expenses and the expenses of their Affiliates in connection with the
preparation and negotiation of this Agreement and the Ancillary Agreements and
the consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements. Each of the Seller and the Buyers shall bear the fees and
expenses of any broker or finder retained by such party and its respective
Affiliates in connection with the transactions contemplated by this Agreement
and the Ancillary Agreements.
8.2 GOVERNING LAW. This Agreement will be construed under and governed
by the Laws of the State of Delaware applicable to contracts made and to be
performed in the State of Delaware.
8.3 PROJECTIONS. In connection with the Buyers' investigation of the
Seller, the Company and the EFG Business, the Buyers may have received from the
Seller, the Company and/or their respective representatives certain projections
and other forecasts for the EFG Business, and certain business plan and budget
information. The Buyers acknowledge that (a) there are uncertainties inherent in
attempting to make such projections, forecasts, plans and budgets, (b) the
Buyers are familiar with such uncertainties, (c) the Buyers are taking full
responsibility for making their own evaluation of the adequacy and accuracy of
all estimates, projections, forecasts, plans and budgets so furnished to them,
and (d) the Buyers will not assert any claim against the Seller or any of its
directors, officers, employees, Affiliates or representatives, or hold the
Seller or any such Persons liable, with respect thereto. Accordingly, the Buyers
acknowledge that the Seller makes no representation or warranty with respect to
such projections, forecasts or plans and that the Seller makes only those
representations and warranties explicitly set forth in ARTICLE IV.
8.4 AMENDMENT. This Agreement may be amended only with the written
consent of the parties hereto.
8.5 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by any party hereto without
the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure
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to the benefit of and be enforceable by, the parties hereto and their respective
successors and permitted assigns, and is not intended to confer upon any Person
other than the parties hereto and their respective successors and permitted
assigns any rights or remedies hereunder.
8.6 WAIVER. Any of the terms or conditions of this Agreement that may
be lawfully waived may be waived in writing at any time by any party that is
entitled to the benefits thereof. Any waiver of any of the provisions of this
Agreement by any party hereto will be binding only if set forth in an instrument
in writing signed on behalf of such party. No failure to enforce any provision
of this Agreement will be deemed to or will constitute a waiver of such
provision and no waiver of any of the provisions of this Agreement will be
deemed to or will constitute a waiver of any other provision hereof (whether or
not similar) nor will such waiver constitute a continuing waiver.
8.7 NOTICES.
(a) Any notice, demand, or communication required or permitted to be
given by any provision of this Agreement must be in writing and will be deemed
to have been sufficiently given or served for all purposes if (i) personally
delivered, (ii) sent by a nationally recognized overnight courier service to the
recipient at the address below indicated, (iii) sent by registered or certified
mail, return receipt requested, postage prepaid, or (iv) delivered by facsimile
with confirmation of receipt:
If to the Equity Investor:
Matrix Capital Markets Group, Inc.
00 Xxxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Management Investor:
X'Xxxxxxxx Films Management, LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
XxXxxxx Xxxx, A Professional Corporation
000 Xxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to the Seller:
PolyOne Corporation
c/o X'Xxxxxxxx Films Holding Corporation
00000 Xxxxxx Xxxx
Xxxx Xxxx, Xxxx 00000
Attn: Chief Legal Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Xxxxx Day
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 216-579-0212
or to such other address as any party hereto may, from time to time, designate
in a written notice given in like manner.
(b) Except as otherwise provided herein, any notice under this
Agreement will be deemed to have been given (i) on the date such notice is
personally delivered or delivered by facsimile, (ii) the next succeeding
Business Day after the date such notice is delivered to the overnight courier
service if sent by overnight courier, or (iii) five Business Days after the date
such notice is sent by registered or certified mail.
8.8 COMPLETE AGREEMENT. This Agreement and any confidentiality
agreement by and between PolyOne and Matrix Capital Markets Group, Inc.,
together with the Exhibits, Disclosure Schedules, Ancillary Agreements,
certificates and other documents and instruments delivered hereunder, contain
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and thereof
8.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
each of which will be deemed an original.
8.10 PUBLICITY. The Seller and the Buyers shall consult with each
other and shall mutually agree upon any publication or press release of any
nature with respect to this Agreement or the transactions contemplated hereby
and shall not issue any such publication or press release prior to such
consultation and agreement except as may be required by Law or by obligations
pursuant to any listing agreement with any securities exchange or any securities
exchange regulation, in which case the party proposing to issue such publication
or press release shall make all good faith efforts to consult and agree with the
other party or parties before
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issuing any such publication or press release and shall provide a copy thereof
to the other party or parties prior to such issuance.
8.11 HEADINGS. The headings contained in this Agreement are for
reference only and do not affect in any way the meaning or interpretation of
this Agreement.
8.12 SEVERABILITY. If any term, provision, agreement, covenant or
restriction of this Agreement or the application of any term, provision,
covenant or restriction of this Agreement to any party or circumstance is
finally adjudged invalid, ineffective, null, void or unenforceable, the
application of the remainder of such term, provision, agreement, covenant or
restriction to such party or circumstance, the application of such term,
provision, agreement, covenant or restriction to other parties or circumstances,
and the application of the remainder of the terms, provisions, agreements,
covenants and restrictions of this Agreement will remain in full force and
effect and will in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party hereto. The invalid,
ineffective, null, void or unenforceable provision will, without further action
by the parties, be automatically amended to effect the original purpose and
intent of the invalid, ineffective, null, void or unenforceable provision;
provided, however, that such amendment will apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made.
8.13 THIRD PARTIES. Nothing herein expressed or implied is intended or
will be construed to confer upon or give to any Person, other than the parties
hereto and their permitted successors or assigns, any rights or remedies under
or by reason of this Agreement.
8.14 FURTHER ASSURANCES. The parties shall execute such further
instruments and take such further actions as may be reasonably necessary to
carry out the intent of this Agreement. Each party hereto shall cooperate
affirmatively with the other parties, to the extent reasonably requested by such
other parties, to enforce rights and obligations herein provided.
8.15 ARBITRATION. All disputes under this Agreement must be resolved
pursuant to an arbitration before, and according to the rules and procedures of
the American Arbitration Association ("AAA") before a three-neutral panel
sitting in Cleveland, Ohio. The following procedure will apply in such
arbitration:
(a) The party seeking arbitration shall make application with AAA for
arbitration, attaching these provisions to the request, with concurrent notice
to the other party. Such party shall attach this Agreement to the application,
and set forth in detail the precise issues and matters the applicant wishes to
have the arbitrators decide, all to enable the AAA to better determine which
arbitrators' qualifications best qualify them to serve on a panel. The AAA shall
nominate an odd number of arbitrators having the experience and qualifications
with the subject matter of the arbitration reasonably qualifying them to serve,
but in no event less than seven potential arbitrators.
(b) The parties shall strike arbitrators from the listing until only
three remain, with the party requesting arbitration striking first. If a
selected arbitrator(s) cannot serve for any reason, the last struck
arbitrator(s) will serve in his or her place and stead.
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(c) Initially each party to this Agreement shall submit a detailed,
comprehensive proposal for resolving the matter being arbitrated. The
arbitrators may allow the parties, in the discretion of the panel, to support
their proposal through briefing, testimony and oral argument. The arbitrators
shall select the proposed resolution put forth by one of the parties as their
decision; the arbitrators have no authority to modify that proposed resolution.
(d) The decision of a majority of the panel will determine the
arbitration, and constitute a final and binding determination of the matter
arbitrated, which either party may enforce in a court of law having competent
venue over the other party.
8.16 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. Each of the
parties irrevocably submits to the exclusive jurisdiction of the courts of the
State of Delaware, for the purposes of any Proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties hereto
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such Proceeding. Each of the parties further agrees that service
of any process, summons, notice or document to such party's respective address
listed above in one of the manners set forth in SECTION 8.7 will be deemed in
every respect effective service of process in any such Proceeding, and waives
any objection it might otherwise have to service of process under Law. Nothing
herein will affect the right of any Person to serve process in any other manner
permitted by Law. The parties hereto hereby irrevocably and unconditionally
waive trial by jury in any Proceeding relating to this Agreement or any other
agreement entered into in connection therewith and for any counterclaim with
respect thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer, in each case as of the
date first above written.
X'XXXXXXXX FILMS HOLDING
CORPORATION
By:
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, Finance
MATRIX FILMS, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X'XXXXXXXX FILMS MANAGEMENT, LLC
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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