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Exhibit 10.4
CVC SECURITIES PURCHASE AGREEMENT
CVC SECURITIES PURCHASE AGREEMENT dated as of January 22, 1996 by
and among GCIH, Inc., a Delaware corporation (the "Company"), and Citicorp
Venture Capital, Ltd., a New York corporation ("CVC").
CVC desires to purchase from the Company and Company desires to sell
shares of (i) the Company's 12% Series A Preferred Stock, par value $.01 per
share (the "Series A Preferred"), and (ii) the Company's Class A Common Stock,
par value $.01 per share (the "Class A Common"). The execution and delivery of
(A) each of the Executive Stock Purchase Agreements, (B) the Securities Purchase
Agreements, (C) the Investor Stock Purchase Agreement, and (D) the Seller Note
Purchase Agreement are conditions to CVC's obligations under this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" of any particular Person or entity means any other
Person or entity controlling, controlled by or under common control with such
particular Person or entity and, in the case of a limited partnership,
"Affiliate" includes limited partners of such limited partnership.
"Certificate of Incorporation" means the Company's certificate of
incorporation, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Stock Purchase Agreements" means the Executive Stock
Purchase Agreements between the Company and each of Xxxxxx Xxxxxxxxx, Xxxxxxx
Solar, Xxxxx Xxxxx, Xxxxx Xxxx, (each an "Executive"), dated as of the date
hereof, pursuant to which each Executive is purchasing shares of the Class B
Common Stock of the Company, par value $.01 per share (the "Class B Common") and
shares of the Series A Preferred.
"Investor Stock Purchase Agreement" means that stock purchase
agreement dated as of the date hereof, between the Company and Xxxxxxxx X. Xxxxx
(the "Investor"), pursuant to which the Investor is purchasing shares of Class C
Common Stock of the Company, par value $.01 per share (the "Class C Common").
"Officer's Certificate" means a certificate signed by the Company's
president or its chief financial officer, stating that (i) the officer signing
such certificate has made or has caused to be made such investigations as are
necessary in order to permit him to verify the accuracy of the information set
forth in such certificate or any documents accompanying such certificate and
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(ii) such certificate does not misstate any material fact and does not omit to
state any fact necessary to make the certificate not misleading.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company, CVC, Citicorp Mezzanine Partners, L.P., a
Delaware corporation ("CMP"), CCT III Partners, L.P., a Delaware limited partner
("CCT"), Xxxxxx Xxxxxxxxx, Xxxxxxx Solar, Xxxxx Xxxxx, Xxxxx Xxxx, and each
other executive of the Company or its subsidiaries who acquires Common Stock
(the "Executives"), the Investor, and the persons set forth on the Individual
Purchaser signature page attached thereto (the "Individual Purchasers").
"Restricted Securities" means (i) the Stock (as defined below)
issued hereunder, (ii) any securities issued with respect to the Stock referred
to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization and (iii) any securities issued pursuant to an exchange
of such Stock. As to any particular Restricted Securities, such securities shall
cease to be Restricted Securities when they have (a) been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, (b) become eligible for sale pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act or (c) been
otherwise transferred and new certificates for them not bearing the Securities
Act legend set forth in Section 9 have been delivered by the Company. Whenever
any particular securities cease to be Restricted Securities, the holder thereof
shall be entitled to receive from the Company, without expense, new securities
of like tenor not bearing a Securities Act legend of the character set forth in
Section 9.
"SBA" means the United States Small Business Administration, and any
successor agency performing the functions thereof.
"SBIC" means a Small Business Investment Company licensed by an SBA
under the SBIC Act.
"SBIC Act" means the Small Business Investment Act of 1959, as
amended.
"SBIC Regulations" means the SBIC Act and the regulations issued by
the SBA thereunder, codified as Title 13 of the Code of Federal Regulations ("13
CFR"), parts 107 and 121.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" means that Securities Purchase
Agreement, dated as of the date hereof, between the Company and the Persons
listed on the signature pages thereto (the "Purchasers") pursuant to which the
Purchasers are purchasing shares of (i) the Series A Preferred, and (ii) the
Class A Common.
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"Seller Note Purchase Agreement" means the Seller Note Purchase
Agreement, dated as of the date hereof, between the Company and Gerber Products
Company (the "Seller") a Michigan corporation, pursuant to which the Seller is
purchasing certain securities of the Company.
"Stockholders Agreement" means the Stockholders Agreement, dated as
of the date hereof, between the Company, CVC, CMP, CCT, the Executives, the
Investor, and the Individual Purchasers.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control the managing
director or general partner of such partnership, association or other business
entity.
2. Authorization and Closing.
(a) Authorization of the Stock. The Company shall authorize the
issuance and sale to CVC of its Class A Common and its Series A Preferred, each
having the rights and preferences set forth in Exhibit A attached hereto. The
Class A Common and the Series A Preferred are collectively referred to herein as
the "Stock."
(b) Purchase and Sale of the Stock. At the Closing, the Company
shall sell to CVC and, subject to the terms and conditions set forth herein, CVC
shall purchase from the Company (i) 523,476.0 shares of Class A Common at a
price of $0.01 per share, and (ii) 86,974.5 shares of Series A Preferred at a
price of $100.0 per share.
(c) The Closing. The closing of the purchase and sale of the Stock
(the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m. New York time on January 22,
1996 or at such other place or such other time or date as the Company may
designate. At the Closing, the Company shall deliver to CVC stock certificates
evidencing the Stock to be purchased by CVC, each registered in CVC's or its
nominee's name, upon payment of the purchase price thereof by a cashier's or
certified check, or by wire transfer of immediately available funds to an
account designated by the Company.
3. Financial Statements and Other Information. The Company shall,
upon the request of CVC so long as CVC holds any Stock, deliver to CVC:
(a) as soon as available but in any event within 30 days after the
end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the
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period from the beginning of the fiscal year to the end of such month, and
unaudited consolidating and consolidated balance sheets of the Company and its
Subsidiaries as of the end of such monthly period, setting forth in each case
comparisons to the annual budget and to the corresponding period in the
preceding fiscal year, and all such statements shall be prepared in accordance
with generally accepted accounting principles, consistently applied, subject to
the absence of footnote disclosures and to normal year-end adjustments, and
shall be accompanied by an Officer's Certificate;
(b) within 45 days after the end of each quarterly accounting period
in each fiscal year, unaudited consolidating and consolidated statements of
income and cash flows of the Company and its Subsidiaries for such quarterly
period, and unaudited consolidating and consolidated balance sheets of the
Company and its Subsidiaries as of the end of such quarterly period, setting
forth in each case comparisons to the annual budget and to the corresponding
period in the preceding fiscal year, and all such statements shall be prepared
in accordance with generally accepted accounting principles, consistently
applied, subject to the absence of footnote disclosures and to normal year-end
adjustments, and shall be accompanied by an Officer's Certificate;
(c) within 90 days after the end of each fiscal year, audited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, and audited consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such fiscal year, setting forth in each case comparisons to the annual budget
and to the preceding fiscal year, all prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by (i)
with respect to the consolidated portions of such statements, an opinion of an
independent accounting firm of recognized national standing, (ii) a certificate
from such accounting firm, addressed to the Company's board of directors,
stating that in the course of its examination nothing came to its attention that
caused it to believe that there was any default by the Company or any Subsidiary
in the fulfillment of or compliance with any of the terms, covenants, provisions
or conditions of any material agreement to which the Company or any Subsidiary
is a party or, if such accountants have reason to believe any default by the
Company or any Subsidiary exists, a certificate specifying the nature and period
of existence thereof, and (iii) a copy of such firm's annual management letter
to the board of directors;
(d) promptly upon receipt thereof, any additional reports,
management letters or other detailed information concerning significant aspects
of the Company's operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other materials provided
hereunder);
(e) at least 30 days prior to the end of each fiscal year, an annual
budget prepared on a monthly basis for the Company and its Subsidiaries for the
following fiscal year (displaying anticipated statements of income and cash
flows and balance sheets), and following preparation thereof quarterly revisions
of such budget and any other significant budgets prepared by the Company or its
Subsidiaries, and within 30 days after any monthly period in which there is a
material adverse deviation from the annual budget, an Officer's Certificate
explaining the deviation and what actions the Company has taken and proposes to
take with respect thereto; and
(f) with reasonable promptness, such other information and financial
data concerning the Company and its Subsidiaries as any Person entitled to
receive information under this Section 3 may reasonably request.
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4. Inspection of Property. The Company shall permit any
representatives designated by CVC (so long as CVC holds any Stock), upon
reasonable notice and during normal business hours and such other times as any
such holder may reasonably request, to (i) visit and inspect any of the
properties of the Company and its Subsidiaries, (ii) examine the corporate and
financial records of the Company and its Subsidiaries and make copies thereof or
extracts therefrom and (iii) discuss the affairs, finances and accounts of any
such corporations with the directors, officers, key employees and independent
accountants of the Company and its Subsidiaries.
5. Regulatory Compliance Cooperation.
(a) Regulatory Violation. In the event that CVC determines that it
has a Regulatory Problem (as defined below), the Company agrees to take all such
actions as are reasonably requested by CVC in order (i) to effectuate and
facilitate any transfer by CVC of any securities of the Company then held by CVC
to any Person designated by CVC (ii) to permit CVC (or any of its affiliates) to
exchange all or a portion of any voting security then held by it on a
share-for-share basis for shares of a nonvoting security of the Company, which
nonvoting security shall be identical in all respects to the voting security
exchanged for it, except that it shall be nonvoting and shall be convertible
into a voting security on such terms as are requested by CVC in light of
regulatory considerations then prevailing, and (iii) to continue and preserve
the respective allocation of the voting interests with respect to the Company
provided for in the Stockholders Agreement by and among the Company, CVC and
others dated as of the date hereof, and with respect to CVC's ownership of the
Company's Stock. Such actions may include, but shall not necessarily be limited
to entering into such additional agreements, adopting such amendments to the
Certificate of Incorporation and bylaws of the Company and taking such
additional actions as are reasonably requested by CVC in order to effectuate the
intent of the foregoing. For purposes of this Agreement, a "Regulatory Problem"
means any set of facts or circumstances wherein it has been asserted by any
governmental regulatory agency (or CVC believes that there is a substantial risk
of such assertion) that CVC is not entitled to hold, or exercise any significant
right with respect to, the Stock.
(b) Use of Proceeds. The Company hereby agrees that: (i) the Company
will provide CVC with a written summary certified by the Company's president or
chief financial officer describing in reasonable detail the Company's use of the
proceeds received hereunder (including the intended use of any such unused
proceeds as of the date of such summary) (A) within 75 days of the date hereof,
and (B) at the end of each month thereafter until all of the proceeds received
hereunder have been used by the Company and its Subsidiaries, and (ii) the
Company will repurchase at the request of CVC the Stock for an amount equal to
the purchase price thereof (plus any accrued interest or dividends thereon),
payable in immediately available funds, in the event that CVC determines in its
reasonable good faith judgment that a Regulatory Violation (as defined below)
occurred. In the event of such repurchase, the Company shall pay for such Stock
by a cashier's check, certified check or wire transfer within 30 days after the
Company's receipt of the repurchase request, and upon such payment, CVC shall
deliver the certificates evidencing the securities being repurchased.
For purposes of this Agreement, "Regulatory Violation" means (a) a
diversion of the proceeds of the sale of Stock hereunder described on the use of
proceeds statement delivered by the Company at the Closing, if such diversion
was effected without obtaining the prior written consent of CVC (which consent
may be withheld in CVC's sole discretion) or (b) a change in the principal
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business activity of the Company and its Subsidiaries to an ineligible business
activity (within the meaning of the SBIC Regulations), if such change occurs
within one year after the date hereof.
(c) Number of Stockholders. As long as CVC holds any Stock, the
Company shall notify CVC (a) at least 15 days prior to taking any action after
which the number of record holders of the Company's voting stock would be
increased from fewer than 50 to 50 or more, and (b) of any other action or
occurrence after which the number of record holders of the Company's voting
stock was increased (or would increase) from fewer than 50 to 50 or more, as
soon as practicable after the Company becomes aware that such other action or
occurrence has occurred or is proposed to occur.
(d) Economic Impact Information. Promptly after the end of each
fiscal year (but in any event prior to February 28 of each year) the Company
shall deliver to CVC a written assessment of the economic impact of CVC's
investment in the Company, specifying the full-time equivalent jobs created or
retained in connection with the investment, the impact of the investment on the
businesses of the Company in terms of expanded revenue and taxes, and other
economic benefits resulting from the investment, including but not limited to,
technology development or commercialization, minority business development,
urban or rural business development, expansion of exports.
6. Notice of Developments. The Company will give prompt written
notice to CVC of any material adverse development causing a breach of any of the
above representations and warranties. No disclosure by the Company pursuant to
this Section 7, however, shall prevent or cure any misrepresentation, breach of
warranty, or breach of contract.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to CVC that:
(a) Organization and Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which its ownership of
property or conduct of business requires it to qualify. The Company has all
requisite corporate power and authority to carry out the transactions
contemplated by this Agreement.
(b) Authorization; No Breach. The execution, delivery and
performance of this Agreement has been duly authorized by the Company. This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement, the offering, sale and issuance of the Stock hereunder and the
fulfillment of and compliance with the respective terms hereof and thereof by
the Company, do not and shall not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or encumbrance
upon the Company's capital stock or assets pursuant to, (iv) give any third
party the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to, the charter or bylaws of the Company, or any law,
statute, rule or regulation to which the Company is subject, or any agreement,
instrument, order, judgment or decree to which the Company is subject.
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8. Capital Stock and Related Matters.
(a) As of immediately following the Closing, the authorized capital
stock of the Company shall consist of:
(i) 661,655.1 shares of Class A Common, of which 661,657.2
shares shall be issued and outstanding
(ii) 144,594.9 shares of Class B Common, of which 144,592.8
shares shall be issued and outstanding;
(iii) 2,500.0 shares of Class C Common, of which 2,500.0
shares shall be issued and outstanding;
(iv) 191,250.0 shares of Class D Common, of which no shares
shall be issued and outstanding, and 191,250.0 shares shall be reserved for
issuance upon exercise of the Warrant held by Citicorp Mezzanine Partners, L.P.,
a Delaware limited partnership; and
(v) 117,402.5 shares of 12% Series A Preferred Stock, par
value $.01 per share, of which 117,402.5 shares shall be issued and outstanding.
Except as set forth in this Section 8(c), immediately following the consummation
of the transactions contemplated hereby, neither the Company nor any Subsidiary
shall have outstanding any stock or securities convertible or exchangeable for
any shares of its capital stock or containing any profit participation features,
nor shall it have outstanding any rights or options to subscribe for or to
purchase its capital stock or any stock or securities convertible into or
exchangeable for its capital stock or any stock appreciation rights or phantom
stock plans. Immediately following the consummation of the transactions
contemplated hereby, all of the outstanding shares of the Company's capital
stock shall be validly issued, fully paid and nonassessable.
(b) There are no statutory or, to the best of the Company's
knowledge, contractual stockholders preemptive rights or rights of refusal with
respect to the issuance of the Stock hereunder. To the best of the Company's
knowledge, the Company has not violated any applicable federal or state
securities laws in connection with the offer, sale or issuance of any of its
capital stock, and the offer, sale and issuance of the Stock hereunder do not
require registration under the Securities Act or any applicable state securities
laws.
(c) Small Business Matters. The Company, together with its
"affiliates" (as that term is defined in 13 CFR, ss.121.401), is a "small
business concern" within the meaning of the SBIC regulations, including 13 CFR
ss.121.802. The information regarding the Company and its affiliates set forth
in the SBA Form 480, Form 652 and Section A of Form 1031 is accurate and
complete. Copies of such forms shall have been completed by the Company and
delivered to CVC at the Closing. Neither the Company nor any Subsidiary
presently engages in, or shall hereafter engage in, any activities, nor shall
the Company or any Subsidiary use directly or indirectly the proceeds from the
sale of the Stock hereunder for any purpose, for which an SBIC is prohibited
from providing funds by SBIC regulations, including 13 CFR ss.107.804 and
ss.107.901.
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9. Investor's Investment Representations. CVC hereby represents that
it is acquiring the Restricted Securities purchased hereunder or acquired
pursuant hereto for its own account with the present intention of holding such
securities for purposes of investment, and that it has no intention of selling
such securities in a public distribution in violation of the federal securities
laws or any applicable state securities laws. Each certificate for Restricted
Securities shall be imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGI XXXXX ISSUED ON
JANUARY 22, 1996, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF JANUARY 22, 1996 BETWEEN THE ISSUER (THE "COMPANY")
AND CITICORP VENTURE CAPITAL, LTD. A COPY OF SUCH CONDITIONS SHALL BE
FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE."
10. SBA Forms. The Company shall deliver to CVC prior to the
Closing:
(a) duly completed and executed SBA Forms 480, 652 and Part A of
1031;
(b) a business plan showing the Company's financial projections
(including balance sheets and income and cash flow statements) for the period
ending December 31, 1995;
(c) a written statement from the Company regarding its intended use
of the proceeds of the purchase of Stock hereunder; and
(d) a list, after giving effect to the transactions contemplated by
this Agreement, of (a) the name of each of the Company's directors, (b) the name
and title of each of the Company's officers, and (c) the name of each of the
Company's stockholders setting forth the number and class of shares held Prior
to the Closing, the Company shall deliver to the Purchaser all of the following
documents: SBA Forms 480, 652 and 1031 and a list of (a) the name of each of the
Company's directors as of the Closing, (b) the name and title of each of the
Company's officers as of the Closing, and (c) after giving effect to the
transactions contemplated by this Agreement, the name of each of the Company's
stockholders (setting forth the number and class of shares held).
11. Miscellaneous.
(a) Expenses. The Company agrees to pay and hold CVC harmless from
and against liability for the payment of all fees and expenses incurred in
connection with the transactions contemplated by this Agreement and each of the
agreements contemplated hereby, including (i) reasonable attorneys',
consultants' and accountants' fees and expenses arising in connection with the
negotiation, execution and consummation of the transactions contemplated by this
Agreement and each of the agreements contemplated hereby, (ii) reasonable fees
and expenses incurred with respect to any amendments or waivers (whether or not
the same become effective) under or in respect of this
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Agreement, the Registration Rights Agreement, the Stockholders Agreement, the
agreements contemplated hereby or the Certificate of Incorporation, (iii) stamp
and other taxes which may be payable in respect of the execution and delivery of
this Agreement, (iv) reasonable fees and expenses incurred in respect of the
enforcement of the rights granted under this Agreement, the agreements
contemplated hereby and the Certificate of Incorporation, and (v) fees and
expenses incurred by CVC in filing with any governmental agency with respect to
its investment in the Company or any other filing with any governmental agency
with respect to the Company which mentions CVC.
(b) Remedies. CVC shall have all rights and remedies set forth in
this Agreement and the Certificate of Incorporation and all rights and remedies
which CVC have been granted at any time under any other agreement or contract
and all of the rights which CVC have under any law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any Person having any rights under
this Agreement may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(c) Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
To the Company:
GCIH, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: President
With a copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
To CVC:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
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With a copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of CVC
or holders of Restricted Securities are also for the benefit of, and enforceable
by, any subsequent holder of Restricted Securities.
(e) Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of holders
of a majority of the issued and outstanding shares of the Stock issued
hereunder. No other course of dealing between the Company and CVC or any delay
in exercising any rights hereunder or under the Certificate of Incorporation
shall operate as a waiver of any rights of CVC.
(f) Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by CVC or on its behalf.
(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(h) Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
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(i) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agree ment.
(j) Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
(k) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
GCIH, INC.
By: /s/ Xxxxxxx Solar
--------------------------------
Name: Xxxxxxx Solar
Title: Senior Vice President
CITICORP VENTURE CAPITAL, LTD.
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
13
Exhibit A
Certificate of Incorporation
(see attached)
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