Exhibit 10.47
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of August 19, 1999, between PolyVision
Corporation, a New York corporation ("PolyVision"), and The Alpine Group, Inc.,
a Delaware corporation ("Alpine").
R E C I T A L S
The Boards of Directors of each of the parties hereto, deeming
it advisable for the benefit of each of the parties hereto and their respective
stockholders that Alpine subscribe for and purchase shares of preferred stock of
PolyVision.
THEREFORE, for and in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
SUBSCRIPTION FOR AND PURCHASE OF PREFERRED STOCK
1.01 SUBSCRIPTION FOR SHARES. Subject to and in accordance
with the terms and conditions of this Agreement, on the date hereof, Alpine
hereby subscribes for and agrees to purchase, and PolyVision hereby agrees to
issue and sell to Alpine, 40,000 duly authorized, validly issued, fully paid and
nonassessable shares of Series C Convertible Preferred Stock, par value $.01 and
liquidation value $50.00 per share (the "Series C Preferred Stock"), of
PolyVision, convertible into shares of PolyVision's Common Stock, par value
$.001 per share (the "PolyVision Common Stock"), and having the other terms and
conditions set forth in the Certificate of Amendment of the Certificate of
Incorporation of PolyVision attached as EXHIBIT A hereto, at a purchase price of
$50.00 per share, or an aggregate purchase price of $2,000,000, payable in cash.
1.02 THE CLOSING. The closing of the subscription for and
purchase of the Series C Preferred Stock described in Section 1.01 (the
"Closing") shall take place at the offices of Alpine on the date hereof. At the
Closing, PolyVision shall deliver to Alpine one certificate registered in the
name of Alpine representing 40,000 shares of Series C Preferred Stock.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ALPINE
Alpine represents and warrants to, and agrees with, PolyVision
as follows:
2.01 VALIDITY OF TRANSACTION. Alpine has all requisite power
and authority to execute, deliver, and perform this Agreement. All necessary
corporate proceedings of Alpine have been duly taken to authorize the execution,
delivery, and performance of this Agreement.
This Agreement has been duly authorized, executed, and delivered by Alpine, is
the legal, valid, and binding obligation of Alpine, and is enforceable as to
Alpine in accordance with its terms. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
Federal, state, local, or other governmental authority or of any court or other
tribunal is required by Alpine for the execution, delivery, or performance of
this Agreement by Alpine. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which Alpine is a
party, or by which any of its properties or assets is bound, is required for the
execution, delivery, or performance by Alpine of this Agreement, except for such
consents as have been obtained at or prior to the date of this Agreement; and
the execution, delivery, and performance of this Agreement by Alpine will not
violate, result in a breach of, conflict with, or (with or without the giving of
notice or the passage of time or both) entitle any party to terminate or call a
default under any such contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any term of
the Certificate of Incorporation or by-laws of Alpine, or violate, result in a
breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on Alpine or to which any of its operations, business,
properties, or assets is subject.
2.02 FINDER OR BROKER. Neither Alpine nor any person acting on
behalf of Alpine has negotiated with any finder, broker, intermediary, or
similar person in connection with the transactions contemplated hereby.
2.03 ACCREDITED INVESTOR. Alpine is an "accredited investor,"
as that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933 (the "Securities Act").
2.04 INVESTMENT INTENT. Alpine is acquiring the shares of
Series C Preferred Stock pursuant hereto for its own account for investment and
not with a view to, or for sale in connection with, any public distribution
thereof in violation of the Securities Act. Alpine understands that such shares
of Series C Preferred Stock are "restricted securities" and have not been
registered for sale under the Securities Act or qualified under applicable state
securities laws and that the Series C Preferred Stock will be delivered to
Alpine pursuant to one or more exemptions from the registration or qualification
requirements of such securities laws and that the representations and warranties
contained in this Article II are given with the intention that PolyVision may
rely thereon for purposes of claiming such exemptions. Alpine understands that
it must bear the economic risk of its investment in PolyVision for an indefinite
period of time, as the Series C Preferred Stock cannot be sold unless registered
under the Securities Act and qualified under state securities laws, unless an
exemption from such registration and qualification is available.
2.05 TRANSFER OF SHARES. Alpine will not sell or otherwise
dispose of any Series C Preferred Stock or PolyVision Common Stock issuable upon
conversion of the Series C Preferred Stock unless (a) a registration statement
with respect thereto has become effective under the Securities Act and such
shares have been qualified under applicable state securities laws or (b) there
is presented to PolyVision notice of the proposed transfer and, if PolyVision so
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requests, there is also presented to PolyVision a legal opinion reasonably
satisfactory to PolyVision that such registration and qualification are not
required. Alpine consents that the transfer agent for the Series B Preferred
Stock and PolyVision Common Stock may be instructed not to transfer the Series B
Preferred Stock or PolyVision Common Stock acquired pursuant hereto unless it
receives satisfactory evidence of compliance with the foregoing provisions, and
that there may be endorsed upon any certificate representing the Series C
Preferred Stock or PolyVision Common Stock acquired pursuant hereto (and any
certificates issued in substitution therefor) the following legend calling
attention to the foregoing restrictions on transferability and stating in
substance:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR QUALIFIED UNDER ANY STATE SECURITIES
LAW. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED, OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES OR
BLUE SKY LAWS OR AN EXEMPTION IS AVAILABLE."
PolyVision shall, upon the request of any holder of a certificate bearing the
foregoing legend and the surrender of such certificate, issue a new certificate
without such legend if (i) the security evidenced by such certificate has been
effectively registered under the Securities Act and qualified under any
applicable state securities law and sold by the holder thereof in accordance
with such registration and qualification or (ii) such holder shall have
delivered to Alpine a legal opinion reasonably satisfactory to Alpine to the
effect that the restrictions set forth herein are no longer required or
necessary under the Securities Act or any applicable state law.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF POLYVISION
PolyVision represents and warrants to, and agrees with, Alpine
as follows:
3.01 VALIDITY OF TRANSACTION. PolyVision has all requisite
power and authority to execute, deliver, and perform this Agreement and to issue
and sell to Alpine the shares of Series C Preferred Stock. All necessary
corporate proceedings of PolyVision have been duly taken to authorize the
execution, delivery, and performance of this Agreement, and the issuance and
sale to Alpine of the shares of Series C Preferred Stock. This Agreement has
been duly authorized, executed, and delivered by PolyVision, is the legal,
valid, and binding obligation of PolyVision, and is enforceable as to PolyVision
in accordance with its terms. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
Federal, state, local, or other governmental authority or of any court or other
tribunal or stock exchange is required by PolyVision for the execution,
delivery, or performance of this
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Agreement by PolyVision. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which PolyVision is
a party, or by which any of its properties or assets is bound, is required for
the execution, delivery, or performance by PolyVision of this Agreement, except
for such consents as have been obtained at or prior to the date of this
Agreement; and the execution, delivery, and performance of this Agreement by
PolyVision will not violate, result in a breach of, conflict with, or (with or
without the giving of notice or the passage of time or both) entitle any party
to terminate or call a default under any such contract, agreement, instrument,
lease, license, arrangement, or understanding, or violate or result in a breach
of any term of the Certificate of Incorporation or by-laws of PolyVision, or
violate, result in a breach of, or conflict with any law, rule, regulation,
order, judgment, or decree binding on PolyVision or to which any of its
operations, business, properties, or assets is subject. The shares of Series C
Preferred Stock and PolyVision Common Stock issuable upon conversion of the
Series C Preferred Stock have been duly authorized and, upon receipt by
PolyVision from Alpine of payment therefor pursuant to this Agreement and
Exhibit A hereto, will be validly issued, fully paid, and nonassessable, will
not have been issued in violation of any preemptive right of stockholders or
rights of first refusal, and Alpine will receive good title to the shares of
Series C Preferred Stock and PolyVision Common Stock, free and clear of all
liens, security interests, pledges, charges, encumbrances, stockholders
agreements, and voting trusts (other than any created by Alpine).
3.02 FINDER OR BROKER. Neither PolyVision nor any person
acting on behalf of PolyVision has negotiated with any finder, broker,
intermediary, or similar person in connection with the transactions contemplated
herein.
3.03 FULL DISCLOSURE. All documents filed by PolyVision
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1993 (i) were prepared in accordance with the
requirements of the Exchange Act and the rules and regulations thereunder, (ii)
did not at the time they were filed contain any untrue statement of a material
fact, and (iii) did not at the time they were filed omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. From the date as of which
information is given in the most recent report filed by PolyVision under the
Exchange Act to the date of this Agreement, there has not been any material
adverse change in, or any adverse development which materially affects, the
business, results of operations, or financial condition of PolyVision and its
subsidiaries taken as a whole.
ARTICLE IV
COVENANTS OF POLYVISION
4.01 REGISTRATION OF THE POLYVISION COMMON STOCK. PolyVision
will use its best efforts to effect the registration under the Securities Act of
the PolyVision Common Stock issuable upon conversion of the Series C Preferred
Stock as requested by Alpine from time to time, but not sooner than 90 days
after the Closing Date. In addition, PolyVision shall advise Alpine by written
notice at least thirty days prior to the filing of any registration statement
under
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the Securities Act covering securities of PolyVision (except with respect to
registration statements on Form X-0, Xxxx X-0 or similar forms) and will, upon
the request of Alpine, include in any such registration statement such
information as may be required to permit a public offering of the PolyVision
Common Stock, subject to any restrictions imposed by any managing underwriter in
connection with an underwritten public offering on behalf of PolyVision. In
connection therewith, PolyVision will:
(a) promptly prepare and file with the Securities and
Exchange Commission (the "SEC") a registration statement with respect to the
PolyVision Common Stock and use its best efforts to cause such registration
statement to become effective;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
current for a period sufficient to enable Alpine to complete the distribution of
the PolyVision Common Stock covered by such registration statement, and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by Alpine thereof as set
forth in such registration statement;
(c) furnish to Alpine such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
and such other documents as Alpine may reasonably request in order to facilitate
the disposition of the PolyVision Common Stock owned by Alpine;
(d) use its best efforts to register or qualify the
PolyVision Common Stock under the securities or blue sky laws of such
jurisdictions of the United States as Alpine may reasonably request and do any
other related acts which may be reasonably necessary to enable Alpine to
consummate the disposition in such jurisdictions of the PolyVision Common Stock
owned by Alpine; PROVIDED, HOWEVER, that PolyVision will not be required to (i)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4.02(d); (ii) subject itself to
taxation in any jurisdiction; or (iii) consent to general service of process in
any such jurisdiction;
(e) notify Alpine at any time when a prospectus
relating to the PolyVision Common Stock is required to be delivered under the
Securities Act, of the happening of any event as a result of which, or the fact
that, the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of Alpine, PolyVision will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of PolyVision Common Stock, such prospectus will not contain any
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
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(f) use its best efforts to cause the PolyVision
Common Stock to be listed or quoted on each securities exchange or interdealer
quotation system on which similar securities issued by PolyVision are then
listed or quoted;
(g) provide a transfer agent for all such PolyVision
Common Stock not later than the effective date of such registration statement;
(h) enter into such customary agreements (including
underwriting agreements on customary terms) and take all such other actions as
Alpine may reasonably request in order to expedite or facilitate the disposition
of the PolyVision Common Stock; and
(i) make available for inspection by Alpine or any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant, or any other agent retained by Alpine
or any such underwriter, all financial and other records, pertinent corporate
documents and properties of PolyVision, and cause PolyVision's officers,
directors, and employees to supply all information reasonably requested by
Alpine, any such underwriter, attorney, accountant, or agent in connection with
such registration statement.
4.02 REGISTRATION EXPENSES. All expenses ("Registration
Expenses") incident to PolyVision's performance of or compliance with this
Article IV with respect to any registration of the PolyVision Common Stock will
be borne by PolyVision, including, without limitation, all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, the expense of any audit,
and the expenses and fees for listing or quoting the securities to be registered
on each securities exchange or interdealer quotation system on which similar
securities issued by PolyVision are then listed or quoted. Notwithstanding the
foregoing, however, all underwriters' discounts and commissions in respect of
the sale of PolyVision Common Stock and the fees and disbursements of counsel
for Alpine, shall be paid by Alpine.
4.03 PRECONDITIONS TO PARTICIPATION IN UNDERWRITTEN
REGISTRATIONS. Alpine may not participate in any underwritten registration
hereunder unless it (i) agrees to its securities on the basis provided in any
customary underwriting arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents required under the terms of such underwriting arrangements.
4.04 INDEMNIFICATION AND CONTRIBUTION.
(a) PolyVision shall indemnify and hold harmless
Alpine and each of its officers, directors, employees, agents, partners, legal
counsel, and accountants, and each controlling person of each of the foregoing
(within the meaning of the Securities Act) against any losses, claims, damages,
or liabilities, joint or several (or actions in respect thereof), including any
of the foregoing incurred in the settlement of any litigation, commenced or
threatened, to which any of them may be subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out
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of or are based upon (i) any untrue statement (or alleged untrue statement) of
any material fact contained in any registration statement under which the
PolyVision Common Stock was registered under the Securities Act or in any
preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereto, (ii) any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (iii) any other violation by
PolyVision of the Securities Act or any state securities law in connection with
any such registration, and shall reimburse each such person entitled to
indemnification under this Section 4.04(a) for any legal or other expenses
reasonably incurred by such person in connection with investigating or defending
any such loss, claim, damage, liability, or action, as and when such expenses
are incurred; PROVIDED, HOWEVER, that PolyVision shall not be liable to any such
person in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or omission made
in such registration statement, preliminary prospectus, or amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to PolyVision by such person, specifically for use therein.
(b) Alpine shall indemnify PolyVision and each of its
officers, employees, agents, directors, legal counsel, and accountants, and each
controlling person of each of the foregoing (within the meaning of the
Securities Act) against any losses, claims, damages, or liabilities (or actions
in respect thereof), including any of the foregoing incurred in the settlement
of any litigation, commenced or threatened, joint or several, to which any of
them may be subject under the Securities Act or any other statute or at common
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement (or alleged
untrue statement) of any material fact contained in any registration statement
under which the PolyVision Common Stock was registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereto or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) was
made in such registration statement, preliminary prospectus, or amendment or
supplement thereto solely in reliance upon and in conformity with written
information furnished to PolyVision by Alpine specifically for use therein, and
to reimburse such persons for any legal or other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability, or action, as and when such expenses are incurred.
(c) If (i) an indemnified party makes a claim for
indemnification pursuant to this Section 4.04 (subject to the limitations
hereof) but it is found in a final judicial determination, not subject to
further appeal, that such indemnification may not be enforced in such case or
(ii) an indemnified party seeks contribution under the Securities Act, the
Exchange Act, or otherwise, then PolyVision (including for this purpose any
contribution made by or on behalf of any director of PolyVision, any officer of
PolyVision who signed the registration statement, and any controlling person of
PolyVision) as one entity and Alpine (including for this purpose any
contribution by or on behalf of a person who would be indemnified by PolyVision)
as a second entity, shall contribute to the losses, liabilities, claims,
damages, and expenses
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whatsoever to which any of them may be subject, so that PolyVision and Alpine
are each responsible for the proportion thereof which reflects as nearly as
possible the relative fault of Alpine and PolyVision in connection with the
facts which resulted in such losses, liabilities, claims, damages, or expenses.
The relative fault, in the case of an untrue statement, alleged untrue
statement, omission, or alleged omission, shall be determined by, among other
things, whether such statement, alleged statement, omission, or alleged omission
relates to information supplied by Alpine or by PolyVision, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement, alleged statement, omission, or alleged omission. No
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation. Anything in this Section
4.04 to the contrary notwithstanding, no party shall be liable for contribution
with respect to the settlement of any claim or action effected without its
written consent. This Section 4.04 is intended to supersede any right to
contribution under the Securities Act, the Exchange Act or otherwise.
(d) Each party entitled to indemnification under this
Section 4.04 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has knowledge of the commencement of any action, proceeding,
or investigation in respect of which indemnity or reimbursement may be sought as
provided above; PROVIDED, HOWEVER, that the failure of such Indemnified Party to
notify the Indemnifying Party with respect to a particular action, proceeding,
or investigation shall not relieve the Indemnifying Party from any obligation or
liability (i) which it may have pursuant to this Agreement to the extent that
the Indemnifying Party is not prejudiced by the failure to notify or (ii) which
it may have otherwise than pursuant to this Agreement. The Indemnifying Party
shall promptly assume the defense of any Indemnified Party with counsel
reasonably satisfactory to such Indemnified Party, and the fees and expenses of
such counsel shall be at the sole cost and expense of the Indemnifying Party.
The Indemnified Party will cooperate with the Indemnifying Party in the defense
of any action, proceeding, or investigation for which the Indemnifying Party
assumes the defense. Notwithstanding the foregoing, any such Indemnified Party
shall have the right to employ separate counsel of its own selection in any such
action, proceeding, or investigation and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (x) the Indemnifying Party has agreed to pay such fees
and expenses, (y) the Indemnifying Party shall have failed promptly to assume
the defense of such action, proceeding, or investigation and employ counsel
reasonably satisfactory to such Indemnified Party, or (z) in the reasonable
judgment of such Indemnified Party there may be one or more defenses available
to such Indemnified Party which are not available to the Indemnifying Party in
respect of such action, proceeding, or investigation, in which case the
Indemnifying Party shall not have the right to assume the defense of such
action, proceeding, or investigation on behalf of such Indemnified Party. An
Indemnifying Party who is not entitled to, or elects not to, assume the defense
of an action, proceeding, or investigation shall not be obligated to pay the
fees and expenses of more than one counsel and appropriate local counsel for all
parties indemnified by such Indemnifying Party pursuant to this Section 4.04
with respect to the same action, proceeding, or investigation, unless in the
reasonable judgment of any such Indemnified
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Party a conflict of interest may exist between such Indemnified Party and any
other such Indemnified Party with respect to such action, claim, or proceeding.
The Indemnifying Party shall not be liable for the settlement by any Indemnified
Party of any action, proceeding, or investigation effected without its consent,
which consent shall not be unreasonably withheld. The Indemnifying Party shall
not enter into any settlement in any action, suit, or proceeding to which an
Indemnified Party is party unless such settlement includes a general release of
the Indemnified Party, with no payment by the Indemnified Party of
consideration.
ARTICLE V
MISCELLANEOUS
5.01 NOTICES. All notices or other communications hereunder
shall be in writing and shall be given by registered or certified mail (postage
prepaid and return receipt requested), by an overnight courier service which
obtains a receipt to evidence delivery, or by facsimile transmission (provided
that written confirmation of receipt is provided), addressed to the appropriate
party at the following addresses (or such other address as any party may
designate to the other in accordance with the aforesaid procedure):
(a) if to Alpine:
The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
(b) if to PolyVision:
PolyVision Corporation
00-00 00xx Xxxxxx
Xxxx xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx,
Chief Executive Officer
Fax: (000) 000-0000
All notices and other communications sent by overnight courier service shall be
deemed to have been given as of the second Business Day after delivery thereof
to such courier service, those given by facsimile transmission shall be deemed
given when sent, and all notices and other communications sent by mail shall be
deemed given as of the fifth Business Day after the date of deposit with the
United States Postal Service. As used herein, "Business Day" shall mean any day
other than Saturday, Sunday, or any other day when banks in New York City are
required or permitted by law or other governmental actions to be closed.
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5.02 BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement
shall become binding on and inure to the benefit of Alpine and PolyVision upon
execution by such parties. This Agreement shall be binding on each party hereto
and any successor of a party in accordance with the following sentence. Neither
Alpine nor PolyVision may sell, assign, transfer, or otherwise convey any of its
rights or delegate any of its duties under this Agreement, except to a
corporation which has succeeded to substantially all of the business and assets
of such party and has assumed in writing its obligations under this Agreement.
Without limiting the generality of the foregoing, any transferee of PolyVision
Common Stock shall have the rights set forth in Article IV, and such rights
shall be enforceable against PolyVision by such transferees as third party
beneficiaries.
5.03 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
term hereof may be changed or waived (either generally or in a particular
instance and either retroactively or prospectively) absent the written consent
of Alpine and PolyVision.
5.04 EXPENSES. Each of Alpine and PolyVision will be
responsible for the payment of all expenses incurred by it in connection with
the preparation, execution, and delivery of this Agreement, any other documents
relating to the transactions contemplated by this Agreement, and the
consummation of the transactions herein described, except that PolyVision shall
reimburse Alpine on demand for Alpine's reasonable costs and expenses in
connection with the preparation and negotiation of this Agreement and such other
documents, including legal fees and expenses and the cost of any fairness
opinion obtained by Alpine in connection with the transactions contemplated
hereby.
5.05 SURVIVAL OF REPRESENTATIONS, ETC. The representations,
warranties, covenants, and agreements made herein or in any certificate or
document executed in connection herewith shall survive the execution and
delivery of this Agreement and the consummation of the transactions herein
described, regardless of any investigation made at any time by or on behalf of
any of the parties hereto.
5.06 DELAYS OR OMISSIONS; WAIVER. No delay or omission to
exercise any right, power, or remedy accruing to either Alpine or PolyVision
upon any breach or default by the other under this Agreement shall impair any
such right, power, or remedy nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring.
5.07 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and all
prior negotiations, discussions, commitments, and understandings heretofore had
between them with respect thereto are merged herein.
5.08 COUNTERPARTS; GOVERNING LAW. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together
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shall constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to conflicts of laws rules or principles.
5.09 FURTHER ACTIONS. At any time and from time to time, each
party agrees, without further consideration, to take such actions and to execute
and deliver such documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
This Agreement has been duly executed on the date hereinabove
set forth.
THE ALPINE GROUP, INC.
By: /s/ BRAGI X. XXXXX
---------------------------
Bragi X. Xxxxx
Executive Vice President
POLYVISION CORPORATION
By: /s/ XXXXXX X. XXXXXXX
---------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
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