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Exhibit 4.2
RECAPITALIZATION AGREEMENT
THIS RECAPITALIZATION AGREEMENT (this "Agreement") is made and
entered into as of December 31, 1996, by Falconite, Inc., an Illinois
corporation ("Holdings"), Falconite Investments, L.P., a Colorado limited
partnership ("FILP"), Xxxxxx X. Xxxxxxxxx as Trustee of the Xxxxxx X. Xxxxxxxxx
Revocable Trust U/A/D December 17, 1996 ("Xxxxxx Trust"), Xxxxxxx X. Xxxxxxxxx
as Trustee of the Xxxxxxx X. Xxxxxxxxx Revocable Trust U/A/D December 17, 1996
("Xxxxxxx Trust"), Xxxxxx X. Xxxxxxxxx ("Xxxxxx"), Xxxxxxx X. Xxxxxxxxx
("Xxxxxxx"), Xxxxxx Xxxxxx Xxxxxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxx ("Xxxxx"),
Xxxxx Xxxxxx ("Xxxxxx"), Xxxxx X. XxXxxxx ("XxXxxxx") and Xxxxx Xxxx XxXxxxx as
Trustee of the Xxxxx X. XxXxxxx Children's Trust U/A/D 12/30/96 ("XxXxxxx
Trust").
RECITALS
A. All capitalized terms used in these recitals without
definition shall have the respective meanings ascribed thereto in Article 1 of
this Agreement.
B. XXXX, Xxxxxx Trust, Xxxxxxx Trust, Emilie, Xxxxx and
Xxxxxx collectively own all of the issued and outstanding shares of the Company
Common Stock.
C. Joseph, Michael, XxXxxxx and XxXxxxx Trust collectively
own all of the issued and outstanding shares of the Properties Common Stock.
D. Michael and XxXxxxx collectively own all of the issued and
outstanding shares of the Equipment Common Stock.
E. The Shareholders have reached an understanding pursuant to
which (i) the Company Shareholders will exchange their Company Common Stock for
shares of Holdings Common Stock, (ii) the Properties Shareholders will exchange
their Properties Common Stock for shares of Holdings Common Stock, and (iii)
the Equipment Shareholders will exchange their Equipment Common Stock for
shares of Holdings Common Stock.
F. Holdings and the Shareholders desire to set forth certain
representations, warranties and covenants made to induce the execution of this
Agreement, and certain conditions precedent to their respective obligations
hereunder.
NOW, THEREFORE, in consideration of these premises, the
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
Holdings and each of the Shareholders hereby agree as follows:
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Article 1
Definitions
In addition to the terms defined in the preamble and elsewhere
in this Agreement, the following terms used herein shall have the respective
meanings ascribed thereto:
1.1 Business Day. "Business Day" means any day other
than a Saturday, Sunday, legal holiday or other day on which banks in Chicago,
Illinois are permitted to be closed.
1.2 Closing. "Closing" means the closing of the
transactions contemplated by this Agreement at the time and place designated in
or established pursuant to Article 6 of this Agreement.
1.3 Closing Date. "Closing Date" means the date of this
Agreement as set forth in the preamble to this Agreement.
1.4 Company. "Company" means Falconite Equipment, Inc.,
an Illinois corporation f/k/a Falconite, Inc..
1.5 Company Common Stock. "Company Common Stock" means
the common stock of the Company, par value $10.00 per share.
1.6 Company Shareholders. "Company Shareholders" means,
collectively, XXXX, Xxxxxx Trust, Xxxxxxx Trust, Emilie, Xxxxx and Xxxxxx, and
"Company Shareholder" means any of the Company Shareholders.
1.7 Equipment. "Equipment" means XxXxxxx & Falconite
Equipment Co., Inc., an Alabama corporation.
1.8 Equipment Common Stock. "Equipment Common Stock"
means the common stock of Equipment, par value $1.00 per share.
1.9 Equipment Shareholders. "Equipment Shareholders"
means, collectively, Xxxxxxx and XxXxxxx, and "Equipment Shareholder" means any
of the Equipment Shareholders.
1.10 Exchange Act. "Exchange Act" means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated by
the SEC thereunder.
1.11 Holdings Common Stock. "Holdings Common Stock" means
the common stock of Holdings, par value $0.01 per share.
1.12 Holdings Preferred Stock. "Holdings Preferred Stock"
means the preferred stock of Holdings, par value $0.01 per share.
1.13 Person. "Person" means any individual, corporation,
partnership, limited liability company, joint venture, association,
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joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
1.14 Properties. "Properties" means M & M Properties,
Inc., d/b/a M & M Equipment, Inc., an Alabama corporation.
1.15 Properties Common Stock. "Properties Common Stock"
means the common stock of Properties, par value $1.00 per share.
1.16 Properties Shareholders. "Properties Shareholders"
means, collectively, Joseph, Michael, XxXxxxx and XxXxxxx Trust, and
"Properties Shareholder" means any of the Properties Shareholders.
1.17 SEC. "SEC" means the Securities and Exchange
Commission.
1.18 Securities Act. "Securities Act" means the
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
1.19 Shareholders. "Shareholders" means, collectively,
the Company Shareholders, the Properties Shareholders and the Equipment
Shareholders, and "Shareholder" means any of the Company Shareholders, the
Properties Shareholders or the Equipment Shareholders.
Article 2
Exchange and Issuance of Common Stock
Subject to the terms and conditions set forth in this
Agreement, at the Closing the Shareholders and Holdings shall take the
following actions:
2.1 Company Common Stock. Each Company Shareholder shall
deliver to Holdings contemporaneously with the execution of this Agreement
certificates representing all Company Common Stock held by such Company
Shareholder, each such certificate to be duly endorsed for transfer in blank.
In consideration therefor, Holdings shall issue to each Company Shareholder,
and deliver certificates evidencing, 767.161196 shares of Holdings Common Stock
for each share of Company Common Stock transferred to Holdings by such Company
Shareholder (with fractional shares to be rounded up or down to the nearest
whole share); provided that the total number of Holdings Shares to be issued to
the Company Shareholders shall be 9,980,000, and if the rounding of fractional
shares results in any other number, then the number of Holdings Shares to be
issued to FILP shall be adjusted upward or downward by the amount necessary to
cause the total so issued to be 9,980,000.
2.2 Properties Common Stock. Each Properties Shareholder
shall deliver to Holdings contemporaneously with the execution of this
Agreement certificates representing all
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Properties Common Stock held by such Properties Shareholder, each such
certificate to be duly endorsed for transfer in blank. In consideration
therefor, Holdings shall issue to each Properties Shareholder, and deliver
certificates evidencing, 4,990 shares of Holdings Common Stock for each share
of Properties Common Stock transferred to Holdings by such Properties
Shareholder (with fractional shares to be rounded up or down to the nearest
whole share); provided that the total number of Holdings Shares to be issued to
the Properties Shareholders shall be 6,653,330, and if the rounding of
fractional shares results in any other number, then the number of Holdings
Shares to be issued to XxXxxxx shall be adjusted upward or downward by the
amount necessary to cause the total so issued to be 6,653,330.
2.3 Equipment Common Stock. Each Equipment Shareholder
shall deliver to Holdings contemporaneously with the execution of this
Agreement certificates representing all Equipment Common Stock held by such
Equipment Shareholder, each such certificate to be duly endorsed for transfer
in blank. In consideration therefor, Holdings shall issue to each Equipment
Shareholder, and deliver certificates evidencing, 1663.33 shares of Holdings
Common Stock for each share of Equipment Common Stock transferred to Holdings
by such Equipment Shareholder (with fractional shares to be rounded up or down
to the nearest whole share).
2.4 Registration Agreement. As additional consideration
for the Holdings Common Stock, each Shareholder agrees to execute and deliver
to Holdings at the Closing a Registration Agreement, substantially in the form
attached hereto as Schedule 2.4.
2.5 Date of Issuance and Legends. All shares of Holdings
Common Stock to be issued pursuant to this Article 2 shall be issued as of the
Closing Date. All certificates representing such shares shall bear the legend
required by Section 7.2 of this Agreement and any other legend required by law.
Article 3
Shareholders' Representations and Warranties
To induce Holdings and each of the other Shareholders to enter
into this Agreement, each Shareholder hereby represents and warrants to
Holdings and the other Shareholders as follows:
3.1 No Violation; Noncontravention. The execution and
delivery by such Shareholder of this Agreement do not, and the consummation of
the transactions contemplated hereby will not, violate, constitute a breach of
or cause a default under (a) any note, mortgage, material agreement or other
instrument or other obligation to which such Shareholder is a party or by which
he or she or his or her property is bound; or (b) any law, regulation, rule,
judgment or order binding upon such Shareholder, the violation of which would
have a material adverse effect on the performance of such Shareholder's
obligations hereunder.
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3.2 Execution and Delivery; Binding Effect. Such
Shareholder has duly and validly executed and delivered this Agreement. This
Agreement constitutes the valid and binding obligation of such Shareholder
enforceable in accordance with its terms.
3.3 Stock Ownership. Such Shareholder is the record and
beneficial owner of the number of shares of the Company Common Stock,
Properties Common Stock and/or Equipment Common Stock reflected on Schedule 5.4
as being owned by such Shareholder, free and clear of all liens, claims,
security interests, encumbrances and restrictions on transfer of any nature
whatsoever.
Article 4
Investment Representations
As a further inducement to cause Holdings to enter into this
Agreement and to issue the Holdings Common Stock to the Shareholders, each
Shareholder hereby represents and warrants to Holdings as follows:
4.1 Private Placement.
(a) Such Shareholder understands that (i) the
offering and sale of the Holdings Common Stock is intended to be exempt from
registration under the Securities Act pursuant to Section 4(2) of the
Securities Act, and (ii) there is no existing public or other market for
Holdings Common Stock and there can be no assurance that such Shareholder will
be able to sell or dispose of Holdings Common Stock.
(b) The Holdings Common Stock to be acquired by
such Shareholder pursuant to this Agreement is being acquired without a view to
the resale or public distribution of such Holdings Common Stock or any interest
therein in violation of applicable law; provided that such Shareholder shall
have the right at all times to sell or otherwise dispose of all or any part of
Holdings Common Stock pursuant to registration, or exemption therefrom, under
the Securities Act and applicable state securities laws, and subject,
nevertheless, to the disposition of such Shareholder's property being at all
times within his or her control.
(c) Such Shareholder has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of his or her investment in Holdings Common Stock and is
capable of bearing the economic risks of such investment for an indefinite
period, including a complete loss of his or her investment in Holdings Common
Stock.
(d) Such Shareholder has had the opportunity to
ask questions of, and receive answers from, Holdings concerning the terms and
conditions of Holdings Common Stock, this Agreement and
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other related matters. Such Shareholder further acknowledges that Holdings has
made available to such Shareholder or his or her agents all documents and
information relating to an investment in Holdings Common Stock requested by or
on behalf of such Shareholder.
(e) Such Shareholder is exchanging his or her
Company Common Stock, Properties Common Stock and/or Equipment Common Stock, as
the case may be, for Holdings Common Stock on the basis of his or her own
knowledge of the value of the Company, Properties and/or Equipment, as the
case may be, and on the basis of his or her own evaluation of the documents and
information relating to an investment in Holdings Common Stock which he or she
has reviewed or received, and not in reliance on any representation or warranty
of Holdings other than as set forth herein. Such Shareholder has such
knowledge and experience in financial matters that he or she is capable of
making such an evaluation.
(f) Such Shareholder resides at the address set
forth on the signature page hereof and has no present intention of establishing
a residence in any other state or jurisdiction.
(g) Such Shareholder acknowledges that the
Holdings Common Stock being delivered to him or her pursuant to this Agreement
may not be transferred, sold, assigned, pledged, hypothecated or otherwise
disposed of except (i) pursuant to an effective registration statement under
the Securities Act, (ii) pursuant to Rule 144 or 144A, or any successor rule,
under the Securities Act, or (iii) upon receipt by Holdings of a written
opinion of the holder's counsel addressed to Holdings reasonably satisfactory
in form and substance to Holdings, that the proposed disposition would comply
with the Securities Act.
4.2 Reliance. Each Shareholder acknowledges that in
entering into this Agreement, such Shareholder is relying solely on the
representations, warranties and covenants of Holdings and the Shareholders set
forth herein.
Article 5
Holdings' Representations and Warranties
In order to induce the Shareholders to enter into this
Agreement, Holdings hereby represents and warrants to each of the Shareholders
as follows:
5.1 Organization, Standing, Qualification, Etc. Holdings
(a) is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Illinois, (b) is duly licensed or qualified to
do business and is in good standing under the laws of each jurisdiction where
the ownership, lease or operation of property or the conduct of its business
requires such qualification, except for such jurisdictions where the failure to
be so qualified or licensed would not have a
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material adverse effect on the business, operations, properties or condition
(financial or otherwise) of Holdings, and (c) has full power and lawful
corporate authority to carry on its business and to own and operate its assets,
properties and business.
5.2 Authorization; Governmental and Other Approvals;
Noncontravention of Basic Documents. The execution, delivery and performance
by Holdings of this Agreement (a) are within the corporate powers of Holdings,
(b) have been duly authorized by all necessary corporate action of Holdings,
(c) will require no action by or in respect of, or filing with, any
governmental body, agency or official (except for applicable Blue Sky laws and
except for such other filings or approvals, all of which have been or will be
obtained prior to the Closing), (d) will not contravene, conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
right of acceleration or any similar right, or require the consent, of any
other party to (as applicable in the context) (i) any provisions of applicable
law, rule or regulation, (ii) the certificate of incorporation or bylaws of
Holdings (as in effect immediately following the Closing) or (iii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument or any judgment, writ, injunction, order, decree or other instrument
of any government or subdivision thereof, binding upon Holdings or its
property, and (e) will not result in the creation or imposition of any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind on
any asset of Holdings, except to the extent any such contravention, conflict,
inconsistency, breach, default, right, requirement, creation or imposition
would not have a material adverse effect on the business, operations, property
or condition (financial or otherwise) of Holdings.
5.3 Execution and Delivery; Binding Effect. Holdings has
duly and validly executed and delivered this Agreement. This Agreement
constitutes the valid and binding obligation of Holdings enforceable in
accordance with its terms.
5.4 Capitalization.
(a) The authorized capital stock of Holdings
consists, and will consist immediately prior to and immediately following the
Closing, of 50,000,000 shares of Holdings Common Stock and 1,000,000 shares of
Holdings Preferred Stock.
(b) No shares of Holdings Common Stock are issued
and outstanding as of the date hereof.
(c) Immediately following the Closing, the issued
and outstanding capital stock of Holdings will consist of 16,633,430 shares of
Holdings Common Stock, which shares will be owned of record by the respective
Shareholders and in the respective amounts set forth in Schedule 5.4 attached
hereto, free and clear of all liens, claims, security interests, encumbrances
and restrictions on transfer of any nature whatsoever, except for
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generally applicable legal restrictions on transfers of unregistered
securities, and except to the extent described in or contemplated by this
Agreement. All of such shares will have been duly authorized and validly
issued, and will be fully paid and nonassessable.
(d) Except as stated in this Section 5.4,
immediately following the Closing, there will be outstanding no other capital
stock of Holdings, and no other securities convertible into, exchangeable for
or carrying the right to acquire, or subscriptions, options, warrants or other
rights to acquire from Holdings, or other obligations of Holdings to issue,
directly or indirectly, any capital stock of Holdings.
5.5 Registration Rights. Holdings is not, and
immediately following the Closing will not be, a party to any agreement
granting registration rights to any Person with respect to any of its equity or
debt securities.
5.6 Governmental Regulation. Other than the Securities
Act and any applicable state securities laws, Holdings is not subject to any
federal or state law or regulation limiting its ability to issue Holdings
Common Stock.
5.7 Compliance with Laws. Holdings is not in default
under or in violation of any applicable statute, law, ordinance, decree, rule
or regulation of any governmental body, and the consummation of the
transactions contemplated hereby will not constitute or result in any such
default or violation, except in each case where such a default or violation
would not have a material adverse effect on the business, operations, property
or condition (financial or otherwise) of Holdings.
5.8 Litigation. There is no suit, claim, proceeding, or
governmental investigation now pending or, to the best of Holdings's knowledge,
threatened against Holdings which contests the validity of this Agreement or
the ability of Holdings to carry out its obligations under this Agreement.
5.9 Private Offering.
(a) Assuming the accuracy of the representations
and warranties of the Shareholders set forth in Article 4 of this Agreement,
the sale of Holdings Common Stock hereunder is exempt from the registration and
prospectus delivery requirements of the Securities Act. Holdings has not
offered Holdings Common Stock to anyone other than the Shareholders.
(b) No form of general solicitation or general
advertising was used by Holdings or any Person acting on its behalf, in respect
of Holdings Common Stock or in connection with the offer and sale of Holdings
Common Stock. Neither Holdings nor, to the best of Holdings's knowledge, any
Person acting on behalf of Holdings, has directly or indirectly sold or offered
for sale to
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any Person any of Holdings Common Stock or any other similar security of
Holdings, except as contemplated by this Agreement.
Article 6
Closing and Closing Date
Each of the transactions described in this Agreement shall be
closed and become effective at the Closing, which shall take place on the
Closing Date commencing at 10:00 a.m. local time at the principal office of the
Company in Paducah, Kentucky, or at such other place as shall be agreed upon by
the parties hereto.
Article 7
Limitation on Transfers of Securities
7.1 Restriction on Transfer. From and after the Closing
Date, neither Holdings Common Stock nor any interest therein shall be
transferable except upon satisfaction of the relevant conditions specified in
Section 7.3 of this Agreement, which conditions are intended to ensure
compliance with the provisions of the Securities Act with respect to the
transfer of any of Holdings Common Stock or any interest therein. Each
Shareholder will cause any proposed transferee of Holdings Common Stock (or of
any interest therein) held by it to agree to take and hold such Holdings Common
Stock (or any interest therein) subject to the provisions and upon the
conditions specified in Section 7.3 of this Agreement.
7.2 Restrictive Legend.
(a) Each certificate for Holdings Common Stock
issued to the Shareholders or to a subsequent transferee shall (unless
otherwise permitted by the provisions of Section 7.3 of this Agreement) include
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO (I)
A REGISTRATION STATEMENT RELATING TO THE SECURITIES WHICH IS EFFECTIVE
UNDER SUCH ACT, (II) RULE 144 OR 144A UNDER SUCH ACT, OR IF REASONABLY
REQUIRED BY HOLDINGS (III) AN OPINION OF THE HOLDER'S COUNSEL,
REASONABLY SATISFACTORY TO HOLDINGS, TO THE EFFECT THAT SUCH SALE,
TRANSFER, HYPOTHECATION OR OTHER ASSIGNMENT IS IN COMPLIANCE WITH THE
PROVISIONS OF SUCH ACT.
(b) The foregoing legend shall be in addition to
any other legend required by law or by any agreement to which any of the
Shareholders and/or Holdings are parties.
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7.3 Notice of Proposed Transfers. Not less than two
Business Days prior to any proposed transfer of any Holdings Common Stock
bearing the restrictive legend set forth in Section 7.2 or any interest
therein, the holder thereof shall give written notice to Holdings of such
holder's intention to effect such transfer, setting forth the manner and
circumstances of the proposed transfer in reasonable detail. If required by
Holdings, any such proposed transfer which is not made pursuant to a
registration statement filed under the Securities Act may be effected only if
Holdings shall have received such notice of transfer accompanied by (i) an
opinion of counsel reasonably satisfactory to Holdings, addressed to Holdings,
to the effect that the proposed transfer of such Holdings Common Stock or such
interest therein may be effected without registration of such Holdings Common
Stock under the Securities Act (except that such an opinion shall not be
required for transfers pursuant to Rule 144 or 144A of the Securities Act), and
(ii) such representation letters in form and substance reasonably satisfactory
to Holdings to the extent required by the provisions of the Securities Act. In
addition, if the holder of Holdings Common Stock delivers to Holdings an
opinion of the holder's counsel reasonably satisfactory to Holdings that
subsequent transfers of such Holdings Common Stock will not require
registration under the Securities Act, Holdings will promptly after such
contemplated transfer deliver new certificates for such Holdings Common Stock
that do not bear the legend set forth in Section 7.2 above. If the foregoing
conditions entitling the holder to effect a proposed transfer of such Holdings
Common Stock without registration have not been satisfied, the holder in each
case will not transfer the Holdings Common Stock proposed to be transferred.
Each certificate evidencing Holdings Common Stock transferred as above provided
shall bear the appropriate legend set forth in Section 7.2 and each agreement
purporting to transfer any interest in any Holdings Common Stock shall bear a
similar legend, except that such certificate or agreement shall not bear such
legend (i) if the opinion of counsel referred to above is reasonably
satisfactory in form and substance to Holdings and is to the further effect
that neither such legend nor the restriction on transfer in this Section 7.3
are required in order to ensure compliance with the provisions of the
Securities Act, or (ii) if Holdings determines that such legend is not
required. Notwithstanding the foregoing, the restrictions imposed by this
Section 7.3 upon the transferability of any Holdings Common Stock shall cease
and terminate when such Holdings Common Stock have been sold pursuant to an
effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or 144A promulgated under the Securities Act (or any
similar or successor provision then in force). The holder of any Holdings
Common Stock as to which such restrictions shall have terminated shall be
entitled to receive from Holdings, without expense, a new security of the same
type but not bearing the restrictive legend set forth above and not containing
any other reference to the restrictions imposed by this Section 7.3.
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Article 8
Miscellaneous
8.1 Notices. All notices, requests and other
communications to any party hereunder shall be in writing and shall be given to
such party at its address or telecopier number set forth on the signature page
hereof, or such other address or telecopier number as such party may
hereinafter specify for the purpose. Each such notice, request or other
communication shall be effective (a) if given by telecopy, when such telecopy
is transmitted to the telecopy number specified in this Section 8.1 and the
transmitting telecopier receives confirmation of delivery, (b) if given by
overnight air courier, on the next Business Day after the date of shipment, or
(c) if given by any other means, when delivered at the address referred to in,
or specified by such party pursuant to, this Section 8.1.
8.2 No Waivers; Amendments.
(a) No failure or delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(b) Any provision of this Agreement may be
amended or waived if, but only if such amendment or waiver is in writing and is
signed by each party against whom or which such amendment or waiver is to be
enforced. Any amendment, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by any party from the terms of any provision of this
Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given.
8.3 Survival of Provisions. All representations,
warranties, covenants and agreements contained herein or made in writing by or
on behalf of any party to this Agreement in connection herewith shall survive
the execution and delivery of this Agreement and shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of any of the Shareholders, or by or on behalf of Holdings, (ii) acceptance of
any Holdings Common Stock and payment therefor, or (iii) any termination of
this Agreement.
8.4 Headings and Schedules. The headings herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof. The
Schedules attached hereto, and the certificates and other documents delivered
as specified herein, are expressly made a part of this Agreement.
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8.5 Successors and Assigns. This Agreement shall bind
and inure to the benefit of the respective heirs, personal representatives,
executors, administrators, successors and assigns of each of the parties
hereto, including, without limitation, any holder of any Holdings Common Stock.
8.6 Illinois Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Illinois, without
regard to the conflict of laws provisions thereof.
8.7 Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts, each of which shall be an original with
the same effect as if the signatures thereto and hereto were upon the same
instrument. The parties hereto agree that any facsimile signature will have
the same effect as an original signature. This Agreement shall become
effective when signed by or on behalf of all of the parties hereto.
8.8 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings of the parties, written or
oral, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
8.9 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected,
it being intended that all of the rights and privileges of the Shareholders and
the other holders of any Holdings Common Stock shall be enforceable to the
fullest extent permitted by law.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
FALCONITE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxxx
President
FALCONITE INVESTMENTS, L.P.
By XXXXXXX X. XXXXXXXXX REVOCABLE
TRUST U/A/D 12/17/96, its
Managing General Partner
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Trustee
XXXXXX X. XXXXXXXXX REVOCABLE TRUST
U/A/D 12/17/96
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx, Trustee
XXXXXXX X. XXXXXXXXX REVOCABLE
TRUST U/A/D 12/17/96
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 0000 Xxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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/a/ Emilie Xxxxxx Xxxxxxxxx
-----------------------------------------------
Emilie Xxxxxx Xxxxxxxxx
Address: 0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxx X. Xxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxx Xxxxxx
-----------------------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxx X. XxXxxxx
-----------------------------------------------
Xxxxx X. XxXxxxx
Address: 000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
XXXXX X. XXXXXXX CHILDREN'S TRUST
U/A/D 12/30/96
By: /s/ Xxxxx Xxxx XxXxxxx
-------------------------------------------
Xxxxx Xxxx XxXxxxx, Trustee
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