AMENDED AND RESTATED SHARE PURCHASE AGREEMENT
AMENDED AND RESTATED SHARE PURCHASE AGREEMENT (the "AGREEMENT"), dated
as of August 9, 2006 by and among The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation, a New Jersey
Nonprofit Corporation (the "SELLER"), and the investors listed on the Schedule
of Investors attached hereto (each individually, an "INVESTOR" and,
collectively, the "BUYER").
WITNESSETH:
WHEREAS, the Seller owns an aggregate of 8,799,466 shares of common
stock, stated value $.10 per share (such shares, the "RBC STOCK"), of ▇▇▇▇
▇▇▇▇▇▇ and Company, Inc., a New Jersey corporation (the "COMPANY"), which shares
constitute approximately 42.2% of the issued and outstanding shares of Company
common stock; and
WHEREAS, each Investor desires to purchase, and the Seller desires to
sell, upon the terms and conditions set forth herein, the number of shares of
RBC Stock set forth opposite such Investor's name in column (3) on the Schedule
of Investors attached hereto; and
WHEREAS, the parties intend that this Agreement shall amend and restate
that certain Share Purchase Agreement, dated as of August 4, 2006 (the "RESTATED
AGREEMENT"), by and among the Seller and the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
Section 1.1 PURCHASE AND SALE OF RBC STOCK. Subject to the satisfaction
of the conditions set forth in Sections 5.1 and 5.2 hereof (or the waiver
thereof by the party entitled to waive that condition), the Seller shall sell to
each Investor, and each Investor shall purchase from the Seller on the Closing
Date (as defined below), the number of shares of RBC Stock set forth opposite
such Investor's name in column (3) on the Schedule of Investors attached hereto
(the "CLOSING").
Section 1.2 PURCHASE PRICE. The purchase price for the RBC Stock to be
purchased by each Investor at the Closing shall be $11.30 per share (the
"PURCHASE PRICE").
Section 1.3 FORM OF PAYMENT. At the Closing, each Investor shall pay
the Purchase Price to the Seller for the RBC Stock being purchased by such
Investor by wire transfer of immediately available funds into an account
designated by the Seller.
ARTICLE 2
CLOSING
Section 2.1 CLOSING DATE. The date and time of the Closing (the
"CLOSING DATE") shall be 10:00 a.m., New York City Time, at the offices of Weil,
Gotshal and ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or at such other
time or place as the parties may designate in writing) on that date that is one
business day following the satisfaction or waiver of each condition to the
Closing set forth in Sections 5.1 and 5.2 hereof (other than those conditions
that may be satisfied only by a delivery at or action to be taken at the
Closing), of which satisfaction the Seller shall give the Buyer same day notice,
or on such other date as the parties may agree.
Section 2.2 ITEMS TO BE DELIVERED BY THE SELLER. At the Closing, and
subject to the terms and conditions contained herein, the Seller shall (i)
deliver to the Company's transfer agent one or more share certificates
representing the RBC Stock purchased by all of the Investors hereunder and that
is represented by certificates owned by the Seller, accompanied by (A) a duly
endorsed stock power in blank or other appropriate instrument of transfer as may
be required by the transfer agent (duly endorsed or otherwise in form sufficient
for transfer and reasonably satisfactory to each Investor), and (B) written
instructions to the transfer agent to issue new share certificates to the
Investors in accordance with the allocations set forth on the Schedule of
Investors attached hereto and (ii) cause to be issued to such Investors
confirmation of book entry transfer of such shares into Depository Trust Company
accounts of the Investors as may be designated by the Investors, as well as
deliver to the Investors each of the other items described in Section 5.1
hereof. After the Closing, in addition to its obligations under Section 6.6
hereof, the Seller shall cooperate with the Investors, and use its best efforts,
to cause appropriate share certificates representing the RBC Stock sold to the
Investors hereunder to be recorded in the name of the Investors, as the
Investors shall reasonably request.
Section 2.3 ITEMS TO BE DELIVERED BY THE BUYER. At the Closing, and
subject to the terms and conditions contained herein, the Buyer shall deliver to
the Seller the Purchase Price for the RBC Stock being purchased by the Buyer,
and each of the other items described in Section 5.2 hereof.
Section 2.4 SUPPORT OF COMPANY INDEMNITY OBLIGATIONS. The Buyer shall
not (i) for seven years following the Closing vote any shares of the Company
owned by it or which it has the power to vote in favor of any amendment of the
certificate of incorporation or the by-laws of the Company or any other action
on the part of the Company that changes in a manner adverse to the individuals
who are directors or officers of the Company and are also trustees or officers
of the Seller or are also 2002A Trustees (as defined below) the provisions of
the Company's certificate of incorporation
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or by-laws providing for indemnification of the Company's directors and officers
(the Seller acknowledges and agrees that voting in favor of any future
transaction in which the Company may be merged with or into another entity and
will not survive the consummation of the transaction shall not be deemed to
implicate this Section 2.4) or (ii) cause the Company to (which, in the case of
any directors nominated by the Buyer, shall be limited to using its commercially
reasonable efforts to cause such designees not to) take any action that would
prevent the Company from indemnifying such individuals as so provided by such
provisions or applicable law or that would exclude such individuals from the
coverage afforded by the Company's directors and officers liability insurance as
from time to time in effect on the same basis as the Company's directors and
officers in office at that time.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to each Investor as follows:
Section 3.1 OWNERSHIP OF RBC STOCK. The Seller is the sole record and
beneficial owner of the RBC Stock, except that pursuant to the Receipt, Release,
Refunding and Share Voting and Disposition Agreement (the "2002A AGREEMENT"),
dated as of March 28, 2006, among the Stock Trustees of The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2002A
Trust (as defined in the Indenture of The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2002A Trust)
(collectively, the "2002A TRUSTEES") and the Seller (a true and complete copy of
which has been made available to the Buyer), the 2002A Trustees have the power
to determine the voting and any disposition of 4,624,451 shares of the RBC Stock
(including to approve the sale thereof by the Seller pursuant hereto) and except
that certain of the shares of RBC Stock are held for the Seller's account of
record by a nominee of the Seller's broker. The RBC Stock constitutes 100% of
the shares of common stock of the Company owned by the Seller and the Seller has
no options, warrants or other rights to acquire common stock of the Seller. The
2002A Trust Agreement shall terminate with respect to the RBC Stock at the
Closing and, from and after the Closing, the 2002A Trustees shall have no
voting, dispositive or other rights with respect to the RBC Stock. Following the
Closing, the Buyer shall have no obligations to the 2002A Trustees of any kind
by virtue of its purchase of the RBC Stock and the 2002A Trustees shall have no
right to assert any claim against the Buyer in connection with the 2002A
Agreement. The Seller has valid marketable title to the RBC Stock free and clear
of any lien, security interest or encumbrance of any nature and free of any
claim by any person to or against such RBC Stock, except as otherwise described
above in this Section 3.1. The Seller shall, as of the Closing, have the full
right, power and authority to sell, assign, transfer and convey the RBC Stock to
the Purchaser as provided herein. The Seller shall transfer all of its right,
title and interest in and to the RBC Stock to each Investor free and clear of
any lien, security interest, or other encumbrance of any nature and free of any
claim by any person or entity to or against the RBC Stock.
Section 3.2 AUTHORIZATION, VALIDITY AND ENFORCEABILITY. This Agreement
and the transactions contemplated of the Seller hereby have been duly authorized
by the
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Seller (including by any necessary action of the 2002A Trustees). This Agreement
has been duly executed and delivered by the Seller and constitutes the valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, and the execution, delivery and performance of this Agreement by
it will not violate or result in a default under any provision of any material
commitment, agreement or instrument to which the Seller is a party or by which
the Seller is bound and will not contravene any law, rule or regulation of any
administrative agency or governmental body, or any order, writ, injunction or
decree of any court, administrative agency or governmental agency applicable to
the Seller.
Section 3.3 LITIGATION; APPROVALS. There are no proceedings pending or,
to the knowledge of the Seller, threatened, and there is no order, writ,
judgment or decree affecting the Seller which, if adversely determined, would
reasonably be expected to have a material adverse effect on the transactions
contemplated hereby. No approval by or filing with any governmental or
regulatory body or other person is required for the Seller to enter into or
perform this Agreement, except for such as have been received or made and except
for any filings under Schedule 13D or Section 16 under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), as Seller may be required to make
in connection with this Agreement and the transactions contemplated hereby.
Based on the representation of each Investor contained in Section 4.2 hereof,
the Seller has determined that the transactions contemplated hereby do not
require that the Seller make filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act").
Section 3.4 [Intentionally Omitted]
Section 3.5 NO RELIANCE. The Seller understands and acknowledges that
each Investor, together with such Investor's affiliates, has received material
non-public information regarding the Company and/or the RBC Stock, including
historical financial information and certain projections relating to the
Company's business. The Seller hereby represents and warrants that it is
financially sophisticated with respect to the RBC Stock and the Company; it is
represented on the board of directors of the Company; it is capable of obtaining
all information that it deems material to the transactions contemplated hereby
from its records, its agents, and/or the Company; it has been afforded the
opportunity to ask such questions of the Company as it deems material to this
transaction and such questions have been addressed to its satisfaction; it is
capable of evaluating the risks associated with a transaction involving the RBC
Stock and the Company, including the risk of transacting on the basis of
information that may be materially different from the information available to
the Investors, and that it is capable of sustaining any loss that may result
from engaging in such a transaction on such basis without material injury; and
it acknowledges that no representations have been made by any Investor in
respect of this transaction or the Company except as expressly set forth in this
Agreement. In light of the foregoing, the Seller hereby waives any and all
claims (including, without limitation, any and all claims under any applicable
securities law) it may have or may hereafter acquire against such Investor
relating to any failure by such Investor to disclose to the Seller in connection
with the Seller's sale of the RBC Stock
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pursuant hereto any information which may be considered to be material
non-public information in respect of the Company.
Section 3.6 NO INTERMEDIARY. Except as otherwise disclosed by
supplemental letter provided by the Seller to each Investor, there is no
investment banker, broker, finder or other intermediary who might be entitled to
any fee or commission upon consummation of the transactions contemplated hereby
based upon arrangements made by or on behalf of the Seller and any such fee or
commission as may be payable shall be the sole responsibility of the Seller and
shall be paid by the Seller.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Each Investor represents and warrants to Seller, with respect only to
itself, as follows:
Section 4.1 VALIDITY AND ENFORCEABILITY. This Agreement and the
transaction contemplated of such Investor hereby have been duly authorized by
such Investor. This Agreement has been duly executed and delivered by such
Investor and constitutes the valid and binding obligation of such Investor,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by it will not violate or result in a default
under any provisions of any material commitment, agreement or instrument to
which such Investor is a party or by which such Investor is bound, and will not
contravene any law, rule or regulation of any administrative agency or
governmental body or any order, writ, injunction or decree of any court,
administrative agency or governmental agency applicable to such Investor.
Section 4.2 LITIGATION; APPROVALS. There are no proceedings pending or
threatened, and there is no order, writ, judgment or decree affecting such
Investor, which, if adversely determined, would have a material adverse effect
on the transactions contemplated hereby. No approval by or filing with any
governmental or regulatory body or other party is required for such Investor to
enter into or perform this Agreement, except for such as have been received or
made and except for any filing on Schedule 13D or Section 16 under the Exchange
Act as such Investor may be required to make in connection with the transactions
contemplated hereby. Such Investor has determined that the transactions
contemplated hereby do not require that such Investor make filings under the HSR
Act.
Section 4.3 CERTAIN SECURITIES LAW MATTERS. Such Investor is an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated
pursuant to the Securities Act of 1933. Such Investor has substantial experience
in evaluating and investing in securities in companies similar to the Company so
that such Investor is capable of evaluating the merits and risks of such
Investor's investment in the Company and has the capacity to protect such
Investor's own interests. Such Investor is acquiring the RBC Stock for
investment for the Investor's own account, not as a nominee or agent, and not
with the view towards, or for resale in connection with, any public sale or
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distribution thereof; PROVIDED, HOWEVER, that by making the representations
herein, such Investor does not agree to hold any of the RBC Stock being
purchased by it for any minimum or other specific term and reserves the right to
dispose of the RBC Stock being purchased by it at any time in accordance with or
pursuant to a registration statement or an exemption under the Securities Act of
1933. Such Investor understands that the offer and sale of the RBC Stock has not
been, and will not be, registered under applicable Federal or state securities
laws, except pursuant to the Registration Rights Agreement.
Section 4.4 NO RELIANCE. Such Investor acknowledges and agrees that, in
negotiating and entering into this Agreement, (i) it has relied on no
representations made by the Seller, the Company, or any director, officer,
employee, investment banker, legal counsel or other representative or agent
thereof other than those of the Seller expressly set forth herein or those of
the Company expressly set forth in an agreement signed by the Company and
delivered to such Investor referred to herein, (ii) it has been afforded the
opportunity to do a due diligence review of the business and affairs of the
Company, including to ask such questions of the Company, as it deems appropriate
and material to the transactions contemplated hereby and that its requests for
information and questions have been addressed to its satisfaction and (iii) it
has not relied on the Seller, the Company or any director, officer, employee,
investment banker, legal counsel or other representative or agent thereof with
respect to the sufficiency of its due diligence or the information provided to
it and has relied on its own expertise and judgment in deciding the sufficiency
thereof. Such Investor understands and acknowledges that the Seller has received
material non-public information regarding the Company and/or the RBC Stock,
including historical financial information and certain projections relating to
the Company's business. Such Investor hereby represents and warrants that it is
financially sophisticated with respect to the RBC Stock and the Company; it is
capable of evaluating the risks associated with a transaction involving the RBC
Stock and the Company, including the risk of transacting on the basis of
information that may be materially different from the information available to
the Seller, and that it is capable of sustaining any loss that may result from
engaging in such a transaction on such basis without material injury. In light
of the foregoing, such Investor hereby waives any and all claims (including,
without limitation, any and all claims under any applicable securities law) it
may have or may hereafter acquire against the Seller relating to any failure by
the Seller to disclose to such Investor in connection with such Investor's
purchase of the RBC Stock pursuant hereto any information which may be
considered to be material non-public information in respect of the Company.
Section 4.5 NO INTERMEDIARY. There is no investment banker, broker,
finder or other intermediary who might be entitled to any fee or commission upon
consummation of the transactions contemplated by this Agreement based upon
arrangements made by or on behalf such Investor.
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ARTICLE 5
CONDITIONS TO CLOSING
Section 5.1 BUYER CONDITIONS. The obligation of each Investor hereunder
to purchase the number of shares of RBC Stock set forth opposite such Investor's
name in column (3) on the Schedule of Investors attached hereto at the Closing
is subject to the satisfaction, at or before the Closing Date, of the following
conditions, provided that these conditions are for each Investor's sole benefit
and may be waived by such Investor at any time in its sole discretion by
providing the Seller with prior written notice thereof:
5.1.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise
contemplated or permitted hereby, (a) the representations and
warranties of the Seller contained in this Agreement or in any
certificate or document to be delivered to the Buyer pursuant hereto
shall be deemed to have been made again at and as of the Closing Date
and shall be true and correct in all material respects as of such date,
except to the extent that any representation or warranty is made as of
a specified date, in which case such representation and warranty shall
be true and correct in all material respects as of such date, and (b)
the Seller shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to be
performed or complied with by the Seller prior to or on the Closing
Date. Each Investor shall have been furnished with a certificate in
customary form of an appropriate trustee or director of the Seller,
dated as of the Closing Date, certifying to the effect of this Section
5.1.1.
5.1.2 NO ACTIONS. No action, suit or proceeding by any court or
governmental or regulatory authority shall be pending, no investigation
by any governmental or regulatory authority shall have been commenced
and no action, suit or proceeding by any governmental or regulatory
authority shall have been threatened against an Investor, the Seller or
the Company or any of their respective principals, trustees, officers
or directors seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any such
transactions or seeking damages in connection with any such
transactions.
5.1.3 CONSENTS. All consents, approvals and authorizations of
governmental and regulatory authorities and all filings with and
notifications of governmental authorities and regulatory agencies or
other entities which regulate the business of the Company necessary to
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby shall have been obtained or
effected.
5.1.4 NO MATERIAL ADVERSE CHANGE. There shall have been no
material adverse change since the date hereof in the business, assets,
financial condition, results of operations or prospects of the Company.
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5.1.5 RESIGNATION FROM THE BOARD. Effective as of the Closing, the
directors of the Company who are also directors of the Foundation shall
have resigned from the Board.
5.1.6 REGISTRATION RIGHTS AGREEMENT. The Company and each Investor
shall have entered into a Registration Rights Agreement substantially
in a form attached hereto, providing for, among other things, (a) the
Company's agreement to nominate certain representatives of the Buyer
for election to the Board of Directors of the Company and to facilitate
the election of such representatives, and (b) certain registration
rights of the Buyer with respect to the RBC Stock being purchased
hereunder.
5.1.7 OPINION OF COUNSEL. The Buyer shall have received the legal
opinion of the Seller's counsel, dated the Closing Date, substantially
in a form attached hereto.
5.1.8 APPROVAL OF DOCUMENTS. The form and substance of all
certificates, instruments, opinions, and other documents required to be
delivered to the Buyer under this Agreement shall be reasonably
satisfactory in all respects to the Buyer and its counsel.
5.1.9 COMPANY RESOLUTIONS. The Buyer shall have received a true,
complete and accurate copy, as delivered by the Company to the Seller,
of resolutions passed by the Special Committee of the Board of
Directors of the Company on August 4, 2006 and on August 9, 2006,
approving the transactions on the part of the Company contemplated by
this Agreement (including, without limitation, approving the Company's
execution and delivery of the Registration Rights Agreement and,
approving for purposes of the New Jersey Shareholders Protection Act,
any "business combination" transaction which may be proposed to be
engaged in between such Investor and the Company at any time or from
time to time following the Closing, such approval to constitute advance
approval of such business combination transactions under the terms of
such Act); such resolutions have not been modified, rescinded or
amended and remain in full force and effect.
Section 5.2 SELLER'S CONDITIONS. The obligation of the Seller hereunder
to sell to each Investor the number of shares of RBC Stock set forth opposite
such Investor's name in column (3) on the Schedule of Investors attached hereto
at the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions are for the
Seller's sole benefit and may be waived by the Seller at any time in its sole
discretion by providing each Investor with prior written notice thereof:
5.2.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise
contemplated or permitted hereby, (a) the representations and
warranties of such Investor contained in this Agreement or in any
certificate or document to be
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delivered to the Seller by such Investor pursuant hereto shall be
deemed to have been made again at and as of the Closing Date and shall
be true and correct in all material respects as of such date, except to
the extent that any representation or warranty is made as of a
specified date, in which case such representation and warranty shall be
true and correct as of such date in all material respects, and (b) such
Investor shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to be
performed or complied with by such Investor prior to or on the Closing
Date. The Seller shall have been furnished with a certificate in
customary form of an authorized signatory of such Investor, dated as of
the Closing Date, certifying to the effect of this Section 5.2.1.
5.2.2 NO ACTIONS. No action, suit or proceeding by any court or
governmental or regulatory authority shall be pending, no investigation
by any governmental or regulatory authority shall have been commenced
and no action, suit or proceeding by any governmental or regulatory
authority shall have been threatened against the Seller, the Company or
such Investor or any of their respective principals, trustees, officers
or directors seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any such
transactions or seeking damages in connection with any such
transactions.
5.2.3 CONSENTS. All consents, approvals and authorizations of
governmental and regulatory authorities and all filings with and
notifications of governmental authorities and regulatory agencies or
other entities which regulate the business of the Company necessary to
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby shall have been obtained or
effected.
5.2.4 APPROVAL OF DOCUMENTS. The form and substance of all
certificates, instruments and other documents required to be delivered
to the Seller under this Agreement shall be reasonably satisfactory in
all respects to the Seller and its counsel.
ARTICLE 6
MISCELLANEOUS
Section 6.1 SURVIVAL OF AGREEMENTS. All the representations and
warranties made herein shall survive the execution and delivery of this
Agreement and the sale and delivery of the RBC Stock pursuant hereto for, and
only for, a period of two (2) years from the Closing Date, except for Sections
3.1, 3.2, 3.6 and 4.1 which shall survive until the expiration of the applicable
statute of limitations.
Section 6.2 EXPENSES. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby.
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Section 6.3 NOTICES. All notices, requests, consents, or other
communication hereunder shall be in writing and shall be delivered personally or
by courier or mailed by first class registered or certified mail to, in the case
of the Investors, their respective addresses set forth on the Schedule of
Investors attached hereto and, in the case of the Seller, to The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Foundation, Glenpointe Centre East-7th Floor, ▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, with a
copy to Weil, Gotshal and ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Section 6.4 CAPTIONS AND SECTION HEADINGS. As used herein, captions and
section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 6.5 ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement between the parties hereto concerning the
transactions contemplated herein and supersede all prior agreements or
understandings between the parties hereto relating to the subject matter hereof
(including the Restated Agreement).
Section 6.6 ADDITIONAL DOCUMENTS. The parties hereto will, at any time
after the date hereof, sign, execute and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments, documents and instruments and do or
cause to be done all such other acts and deeds as may be necessary or proper to
carry out the transactions contemplated by this Agreement, including, in the
case of the Seller, taking any and all action necessary to cause the Company's
transfer agent to remove any reference to the 2002A Agreement on the share
certificates to be delivered to each Investor representing the RBC Stock.
Section 6.7 TERMINATION; AMENDMENT. This Agreement may be terminated at
any time by the Buyer or the Seller, by notice given to the other, if the
Closing has not occurred by August 30, 2006 other than by reason of the breach
of this Agreement by the terminating party, and upon such termination neither
the Buyer nor the Seller shall have any obligation or liability hereunder
(except for damages arising out of any such breach). This Agreement may be
amended, supplemented or interpreted at any time, but only by a written
agreement executed by the parties hereto.
Section 6.8 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 6.9 SEVERABILITY. If any one or more of the provisions of this
agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
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Section 6.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns. No assignment of this Agreement or of any rights or obligations
hereunder may be made by either the Seller or the Buyer, directly or indirectly
(by operation of law or otherwise), without the prior written consent of the
other parties hereto.
Section 6.11 GOVERNING LAW. This Agreement, and all matters arising
directly or indirectly hereunder, shall be governed by the laws of the State of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.
Section 6.12 INDEPENDENT NATURE OF INVESTOR'S OBLIGATIONS AND RIGHTS.
The obligations of each Investor under this Agreement are several and not joint
with the obligations of any other Investor, and no Investor shall be responsible
in any way for the performance of the obligations of any other Investor under
this Agreement. Nothing contained herein, and no action taken by any Investor
pursuant hereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this
Agreement and the Seller acknowledges that the Investors are not acting in
concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Investor confirms that it has independently
participated in the negotiation of the transaction contemplated hereby with the
advice of its own counsel and advisors. Each Investor shall be entitled to
independently protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any
other Investor to be joined as an additional party in any proceeding for such
purpose.
11
IN WITNESS WHEREOF, each Investor and the Seller have caused their
respective signature page to this Securities Purchase Agreement to be duly
executed as of the date first written above.
SELLER:
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FOUNDATION, A
NEW JERSEY NONPROFIT CORPORATION
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
INVESTORS:
PRENTICE CAPITAL PARTNERS, LP
By: Prentice Capital GP, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
PRENTICE CAPITAL PARTNERS QP, LP
By: Prentice Capital GP, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
PRENTICE CAPITAL OFFSHORE, LTD.
By: Prentice Capital Management, LP, its
investment manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
12
GPC XLIII, LLC
By: Prentice Capital Management, LP, its advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
PEC I, LLC
By: Prentice Capital Management, LP, its manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
S.A.C. CAPITAL ASSOCIATES, LLC
By: S.A.C. Capital Advisors, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Counsel
PRENTICE SPECIAL OPPORTUNITIES
MASTER, L.P.
By: Prentice Capital ▇▇ ▇▇, LP, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
PRENTICE SPECIAL
OPPORTUNITIES, LP
By: Prentice Capital ▇▇ ▇▇, LP, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel
13
SCHEDULE OF INVESTORS
(1) (2) (3) (4) (5)
ADDRESS AND NUMBER OF LEGAL REPRESENTATIVE'S
BUYER FACSIMILE NUMBER ACQUIRED SHARES PURCHASE PRICE ADDRESS AND FACSIMILE NUMBER
--------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇ CAPITAL c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PARTNERS, LP Management, L.P. 100,340 $1,133,842 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇ CAPITAL c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PARTNERS QP. LP Management, L.P. 484,357 $5,473,234.10 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇ CAPITAL c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, LTD. Management, L.P. 1,063,272 $12,014,973.60 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
GPC XLIII, LLC c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Management, L.P. 230,335 $2,602,785.50 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
PEC I, LLC c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Management, L.P. 351,979 $3,977,362.70 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇ SPECIAL c/o Prentice Capital ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
OPPORTUNITIES Management, L.P. 646,252 $7,302,647.60 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MASTER, L.P. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇▇▇▇▇ SPECIAL ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ Management, L.P. 233,694 $2,640,742.60 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
14
S.A.C. CAPITAL c/o S.A.C. Capital Advisors, LLC
ASSOCIATES, LLC ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 1,289,504 $14,571,395.20
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
c/o Prentice Capital
Management, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
