SERIES C PREFERRED STOCK PURCHASE AGREEMENT
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AGREEMENT, dated as of November 20, 1998, 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, 100,000 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 $5,000,000, 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 100,000 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
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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 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,
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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 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
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issuable upon conversion of the Series C Preferred Stock as requested by Alpine
from time to time, but not sooner than 180 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 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
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law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out 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)
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as a second entity, shall contribute to the losses, liabilities, claims,
damages, and expenses 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
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action, proceeding, or investigation, unless in the reasonable judgment of any
such Indemnified 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, President and
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.
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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 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
------------------------------
Name: Bragi X. Xxxxx
Title: Executive Vice President
POLYVISION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
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