EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
DATED AS OF NOVEMBER 24, 1997
BY AND AMONG
ANICOM, INC.
AND
EACH OF THE PURCHASERS LISTED ON EXHIBIT A
TABLE OF CONTENTS
Page
SECTION 1
Definitions 1
1.1 Defined Terms 1
SECTION 2
Sale and Purchase of Common Stock 4
SECTION 3
Closing Date; Delivery 4
3.1 Closing Date 4
3.2 Delivery 4
SECTION 4
Representations and Warranties of the Company 5
4.1 Organization, Good Standing and Qualification 5
4.2 Capitalization 5
4.3 Subsidiaries 6
4.4 Authorization 6
4.5 Consents 6
4.6 Absence of Litigation 6
4.7 Insurance 7
4.8 Patents and Trademarks 7
4.9 Compliance with Other Instruments and Legal
Requirements 7
4.10 Material Agreements 7
4.11 Registration Rights 8
4.12 Environmental Matters 8
4.13 Company SEC Reports and Financial Statements 8
4.14 Changes 9
4.15 Employee Benefit Plans 10
4.16 Taxes 11
4.17 Disclosure 11
4.18 Brokers' Fees 11
SECTION 5
Representations, Warranties and Covenants of the Purchasers 12
5.1 Accredited Investor; Experience; Risk 12
5.2 Investment 12
5.3 Authorization 12
5.4 Consents 12
5.5 Brokers' Fees 12
5.6 Plan Assets 12
5.7 Restrictive Legends 13
SECTION 6
Conditions to Closing of Purchasers 13
6.1 Representations and Warranties Correct 13
6.2 Covenants 13
6.3 Registration Statement 14
6.4 Opinion of Company's Counsel 14
6.5 No Material Adverse Change 14
6.6 State Securities Laws 14
6.7 Certificates 14
6.8 Organizational Documents 14
SECTION 7
Conditions to Closing of the Company 14
7.1 Representations 14
7.2 Covenants 14
7.3 Purchase Price 14
7.4 Certificate 15
SECTION 8
Covenants of the Company 15
8.1 Shelf Registration 15
8.2 Delay and Holdback of Registration 19
SECTION 9
Miscellaneous 20
9.1 Amendment; Waiver 20
9.2 Notices 20
9.3 Survival of Representations, Warranties and
Covenants 21
9.4 Severability 21
9.5 Successors and Assigns 21
9.6 Entire Agreement 22
9.7 Choice of Law 22
9.8 Counterparts 22
9.9 Indemnification 22
9.10 No Third-Party Beneficiaries 23
Index of Exhibits
Exhibit A: List of Purchasers, Addresses and Number of Shares Purchased
Exhibit B: Form of Opinion of Counsel for Anicom to be delivered to
Purchasers
Index of Schedules
Schedule 4.2(a) Capitalization
Schedule 4.3 Subsidiaries
Schedule 4.6 Consents
Schedule 4.11 Unexercised Registration Rights
Schedule 4.18 Brokerage and Finder's Fees
Anicom, Inc. agrees to furnish supplementally to the Securities Exchange
Commission, upon request, a copy of any omitted exhibit or schedule to this
Agreement.
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of November 24, 1997 (this "Agreement"), by
and between ANICOM, INC., a Delaware corporation (the "Company") and each
purchaser set forth on Exhibit A hereto (each a "Purchaser" and collectively,
the "Purchasers").
WHEREAS, the Company has issued and outstanding the shares of capital stock
described in Section 4.2 hereof; and
WHEREAS, the Company proposes to issue and sell, and the Purchasers wish to
purchase, shares of the Company's common stock, par value $.001 per share (the
"Common Stock"), on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
SECTION 1
Definitions
1.1 Defined Terms . The following terms are defined as follows:
"Affiliate" means, with respect to any Person, (i) any Person in which such
Person holds direct or indirect beneficial ownership (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of voting securities or other voting
interests representing at least 10% of the outstanding voting power of a Person
or equity securities or other equity interests representing at least 10% of the
outstanding equity securities or equity interests in a Person and (ii) any
brother, sister, parent, child or spouse of such Person or any Person described
in clause (i).
"Benefit Arrangement" means any benefit arrangement, obligation, custom, or
practice, to provide benefits, other than salary, as compensation for services
rendered, other than any obligation, arrangement, custom or practice that is an
Employee Benefit Plan, including, without limitation, employment or change of
control agreements, severance agreements, executive compensation arrangements,
incentive programs or arrangements, sick leave, vacation pay, severance pay
policies, plant closing benefits, salary continuation for disability,
consulting, or other compensation arrangements, workers' compensation,
retirement, deferred compensation, bonus, stock option or purchase,
hospitalization, medical insurance, life insurance, tuition reimbursement or
scholarship programs and employee discounts, in each case with respect to any
present or former employees, directors, or agents.
"Code" means the Internal Revenue Code of 1986 (or any successor thereto), as
amended from time to time.
"Company Benefit Arrangement" means any Benefit Arrangement sponsored or
maintained by the Company or its Subsidiaries or with respect to which the
Company or a Subsidiary has or will have any liability (whether actual,
contingent, direct or indirect) as of the Closing Date, in each case with
respect to any present or former directors, employees, or agents of the Company
or the Subsidiaries.
"Company Plan" means, as of the Closing Date, any Employee Benefit Plan for
which the Company or any Subsidiary has or will have any liability (whether
actual, contingent, direct or indirect).
"Effectiveness Period" means the period commencing on the date the Registration
Statement referred to in Section 8 is declared effective by the Securities and
Exchange Commission and ending on the date that the Purchasers who are not
Affiliates of the Company are able to sell the Common Stock pursuant to Rule
144(k) under the Securities Act of 1933, as amended.
"Employee Benefit Plan" means any Employee Benefit Plan within the meaning of
Section 3(3) of ERISA.
"Environmental Law" means any foreign, federal, state or local statute,
regulation, ordinance or rule of common law as now or hereafter in effect in any
way relating to the protection of the environment including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. $$ 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
App. $$ 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. $$
6901 et seq.), the Clean Water Act (33 U.S.C. $$ 1251 et seq.), the Clean Air
Act (42 U.S.C. $$ 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. $$
2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
$$ 136 et seq.), and the Occupational Safety and Health Act (29 U.S.C. $$ 651 et
seq.) and the regulations promulgated pursuant thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA Affiliate" means any Person that is or was at any time treated as a
single employer with the Company under Section 414 of the Code or Section 4001
of ERISA.
"Hazardous Material" means any substance, material or waste that is regulated by
the United States, the foreign jurisdictions in which the Company or its
Subsidiaries conducts business, or any state or local governmental authority
including, without limitation, petroleum and its by-products, asbestos, and any
material or substance that is defined as a "hazardous waste," "hazardous
substance," "hazardous material," "restricted hazardous waste," "industrial
waste," "solid waste," "contaminant," "pollutant," "toxic waste" or "toxic
substance" under any provision of Environmental Law.
"Lien" means any lien, pledge, mortgage, deed of trust, security interest,
claim, lease, charge, option, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation whatsoever.
"Multiemployer Plan" means any Employee Benefit Plan described in Section 3(37)
of ERISA.
"Permits" means any approvals, authorizations, consents, licenses, permits or
certificates.
"Permitted Exceptions" means (i) all defects, exceptions, restrictions,
easements, rights of way and encumbrances disclosed in policies of title
insurance that have been made available to the Purchasers; (ii) statutory Liens
for current taxes, assessments or other governmental charges not yet delinquent
or the amount or validity of which is being contested in good faith by
appropriate proceedings, provided an appropriate reserve is established
therefor; (iii) mechanics', carriers', workers', repairers' and similar Liens
arising or incurred in the ordinary course of business that are not material to
the business, operations and financial condition of the property so encumbered
or the Company or its Subsidiaries; (iv) zoning, entitlement and other land use
and environmental regulations by any governmental body, provided that such
regulations have not been violated; and (v) such other imperfections in title,
charges, easements, restrictions and encumbrances that do not materially detract
from the value of or materially interfere with the present use of any Company
Property (as hereinafter defined) subject thereto or affected thereby.
"Person" means an individual, partnership, limited liability company,
corporation, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Qualified Plan" means any Employee Benefit Plan that meets or is intended to
meet the requirements of Section 401(a) of the Code.
"Registrable Securities" means, (i) shares of Common Stock; and (ii) any other
shares of Common Stock or securities issued in respect of such shares (because
of stock splits, stock dividends, reclassifications, recapitalization, mergers,
consolidation, share exchange or similar events).
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal or leaching into the indoor or outdoor
environment, or into or out of any property;
"Remedial Action" means all actions to (x) clean up, remove, treat or in any
other way address any Hazardous Material; (y) prevent the Release of any
Hazardous Material so it does not endanger or threaten to endanger public health
or welfare or the indoor or outdoor environment; or (z) perform pre-remedial
studies and investigations or post-remedial monitoring and care.
"Subsidiaries" means each corporation in which the Company owns or controls,
directly or indirectly, capital stock or other equity interests representing at
least 50% of the outstanding voting stock or other equity interests.
"Welfare Plan" means any Employee Benefit Plan described in Section 3(1) of
ERISA.
SECTION 2
Sale and Purchase of Common Stock
In reliance on the representations and warranties of the Company and each
Purchaser contained herein and subject to the terms and conditions hereof, each
Purchaser agrees to purchase from the Company, severally, and the Company agrees
to sell to each Purchaser that number of shares of Common Stock set forth next
to its name on Exhibit A hereto, for the purchase price of $13.00 per share.
SECTION 3
Closing Date; Delivery
3.1 Closing Date. The closing of the purchase and sale of the Common Stock
hereunder (the "Closing") shall be held at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on December 4, 1997, or on
such other date or at such other place as Purchasers and the Company shall
mutually agree (the date of the Closing being referred to herein as the "Closing
Date").
3.2 Delivery. At the Closing, the Company shall deliver to each Purchaser a
certificate or certificates evidencing the shares of Common Stock being
purchased by it registered in such Purchaser's name against delivery to the
Company of payment in an amount equal to the full purchase price of the shares
of Common Stock being purchased by such Purchaser in the form of a certified
check or wire transfer to an account designated by the Company.
SECTION 4
Representations and Warranties of the Company
The Company hereby represents and warrants to, and agrees with, Purchasers as
follows:
4.1 Organization, Good Standing and Qualification . Each of the Company and its
Subsidiaries (i) is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business, (iii) is duly qualified
to transact business and is in good standing in all jurisdictions where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not, and reasonably could not be expected to, have a material adverse effect on
the business, operations, assets, financial condition, results of operations or
business prospects of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect"). The Company is in possession of all material
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, approvals and orders to own, lease and operate its properties and
to carry on its business as now being conducted.
4.2 Capitalization.
(a) The authorized capital stock of the Company consists of 60,000,000 shares of
common stock, par value $.001 per share ("Common Stock") of which 19,483,485
shares are issued and outstanding as of the date hereof, and 1,000,000 shares of
preferred stock, par value $.01 per share ("Preferred Stock"). There are no
shares of Preferred Stock outstanding. Except as set forth on Schedule 4.2(a),
there are no outstanding securities of the Company convertible into or
evidencing the right to purchase or subscribe for any shares of capital stock of
the Company, there are no outstanding or authorized options, warrants, calls,
subscriptions, rights, commitments or any other agreements of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible into or evidencing the right to purchase or subscribe for
any shares of such stock, and there are no agreements or understandings with
respect to the voting, sale, transfer or registration of any shares of capital
stock of the Company. No outstanding options, warrants or other securities
exercisable for or convertible into shares of capital stock of the Company
require anti-dilution adjustments by reason of the consummation of the
transactions contemplated hereby. There are no preemptive rights with respect to
any securities of the Company other than those which have been waived.
(b) The issued and outstanding shares of Common Stock of the Company are duly
authorized, validly issued, fully paid and nonassessable. The shares of Common
Stock to be issued pursuant to this Agreement, upon delivery to Purchaser of
certificates therefor against payment in accordance with the terms of this
Agreement, (i) will be validly issued, fully paid and nonassessable and (ii)
assuming that the representations of Purchasers in Section 5 hereof are true and
correct, will be issued in compliance with all applicable federal and state
securities laws.
(c) The issued and outstanding shares of Common Stock are, and as of the Closing
Date, the shares of Common Stock being issued and sold to the Purchasers
pursuant to this Agreement will be (subject to official notice of issuance),
authorized for trading on the Nasdaq Stock Market.
4.3 Subsidiaries. Schedule 4.3 sets forth a complete and accurate list of all
Subsidiaries of the Company, showing (as to each such Subsidiary) the date of
its incorporation and the jurisdiction of its incorporation. The Company is the
sole stockholder of each Subsidiary. The outstanding shares of capital stock of
each Subsidiary are validly issued, fully paid and nonassessable and all such
shares represented as being owned by the Company are owned by it, free and clear
of all Liens. There are no outstanding securities of any Subsidiary convertible
into or evidencing the right to purchase or subscribe for any shares of capital
stock of any Subsidiary, there are no outstanding or authorized options,
warrants, calls, subscriptions, rights, commitments or any other agreements of
any character obligating any Subsidiary to issue any shares of its capital stock
or any securities convertible into or evidencing the right to purchase or
subscribe for any shares of such stock, and there are no agreements or
understandings with respect to the voting, sale, transfer or registration of any
shares of capital stock of any Subsidiary.
4.4 Authorization. The Company has all requisite corporate power and authority
to execute and deliver this Agreement and each agreement, document or instrument
adopted, entered into or delivered in connection herewith (the "Transaction
Documents") and to perform its obligations hereunder and thereunder. The
execution, delivery and performance of the Agreement and the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Company. Each Transaction Document has been
duly and validly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that rights to
indemnification and contribution under this Agreement and may be limited by
federal or state securities laws or public policy relating thereto.
4.5 Consents. Except as set forth on Schedule 4.6, no material consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state, or local
governmental authority or other Person on the part of the Company (collectively
referred to herein as "Consents") is required in connection with the valid
execution and delivery by the Company of the Transaction Documents to which it
is a party, or the consummation by the Company of the transactions contemplated
by the Transaction Documents to which it is a party.
4.6 Absence of Litigation. There are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or its Subsidiaries, before any court, arbitrator or administrative,
governmental or regulatory authority or body, domestic or foreign, that could
reasonably be expected to have a Material Adverse Effect.
4.7 Insurance. The Company and it Subsidiaries maintain adequate insurance with
respect to their respective businesses and are in compliance with all material
requirements and provisions thereof.
4.8 Patents and Trademarks . The Company and its Subsidiaries have sufficient
title and ownership of (or rights under license agreements to use) all patents,
trademarks, service marks, trade names, copyrights, trade secrets, proprietary
rights and processes ("Intellectual Property") necessary for the conduct of
their businesses in the ordinary course. There are no outstanding options,
licenses or agreements of any kind relating to the foregoing, nor is the Company
or any of its Subsidiaries bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, proprietary rights and processes of any
other Person.
4.9 Compliance with Other Instruments and Legal Requirements .
(a) None of the Company or any of its Subsidiaries is in violation or default of
any provisions of its certificate of incorporation, by-laws, or comparable
organizational documents. None of the Company or any of its Subsidiaries is in
violation or default in any material respect under any provision, instrument,
judgment, order, writ, decree, contract or agreement to which it is a party or
by which it is bound or of any provision of any federal, state or local statute,
rule or regulation applicable to the Company or any of its Subsidiaries
(including, without limitation, any law, rule or regulation relating to
protection of the environment and the maintenance of safe and sanitary
premises). The execution, delivery and performance of each Transaction Document
and the consummation of the transactions contemplated hereby and thereby will
not result in any such violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such provision, instrument, judgment, order, writ, decree, contract or
agreement, or require any consent, waiver or approval thereunder, or constitute
an event that results in the creation of any Lien upon any assets of the Company
or any of its Subsidiaries.
(b) The Company and its Subsidiaries have all Permits of all governmental
entities required to conduct their respective businesses as proposed to be
conducted, except to the extent that the failure to have such Permits would not
have a Material Adverse Effect.
4.10 Material Agreements . Except as disclosed in the Company SEC Reports (as
defined in Section 4.18), there are no material contracts, agreements,
commitments, understandings or proposed transactions, whether written or oral,
to which the Company or any of its Subsidiaries is a party or by which it is
bound which requires disclosure in the Company SEC Reports.
4.11 Registration Rights . Except as set forth in Schedule 4.11, the Company has
not granted or agreed to grant any registration rights, including piggyback
registration rights, to any Person.
4.12 Environmental Matters .
(a) The operations of each of the Company and its Subsidiaries are in compliance
in all material respects with all applicable Environmental Laws and all Permits
issued pursuant to Environmental Laws or otherwise;
(b) Neither the Company nor any of its Subsidiaries is the subject of any
outstanding written order, agreement or arrangement with any governmental
authority or Person respecting (i) Environmental Laws, (ii) Remedial Action or
(iii) any Release or threatened Release of a Hazardous Material;
(c) None of the Company or any of its Subsidiaries has received any written
communication alleging either or both that the Company or any of its
Subsidiaries may be in violation of any Environmental Law, or any Permit issued
pursuant to Environmental Law, or may have any liability under any Environmental
Law;
4.13 Company SEC Reports and Financial Statements .
(a) The Company has filed all periodic reports, statements and other documents
required to be filed by the Company with the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 1995 (collectively, the "Company SEC Reports"), each in the form
(including exhibits and any amendments thereto) required to be filed with the
SEC. As of their respective dates, each of the Company's SEC Reports (i)
complied in all material respects with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act,
and the rules and regulations promulgated thereunder, respectively, (ii) were
filed in a timely manner, and (iii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. None of the Subsidiaries is required
to file any forms, reports or other documents with the SEC. As of the date
hereof, the Company is eligible to file the Initial Shelf Registration (as
defined herein) on SEC Form S-3 and the Company has no knowledge of any fact or
event that would cause the Company to lose such eligibility.
(b) Each of the audited consolidated financial statements of the Company
(including any related notes and schedules thereto) included (or incorporated by
reference) in its Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996, is accurate and complete and fairly presents, in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis through the periods involved (except as may be noted therein), and in
conformity with the SEC's Regulation S-B, the consolidated financial position of
the Company and its consolidated subsidiaries as of its date and the
consolidated results of operations and changes in financial position for the
period then ended.
(c) Except as and to the extent set forth (or incorporated by reference) in the
Company's Annual Report on Form 10-KSB for the calendar year ended December 31,
1996, neither the Company nor any of its Subsidiaries has incurred any liability
or obligation of any nature whatsoever (whether due or to become due, accrued,
fixed, contingent, liquidated, unliquidated or otherwise) that would be required
by GAAP to be accrued on, reflected on, or reserved against in, a consolidated
balance sheet (or in the applicable notes thereto) of the Company or any of its
Subsidiaries prepared in accordance with GAAP consistently applied, other than
liabilities or obligations which arose in the ordinary course of business and
consistent with past practices since such date and which do not or would not
individually or in the aggregate have a Material Adverse Effect.
4.14 Changes. Except as disclosed in the Company SEC Reports, since September
30, 1997, there has not been:
(a) any change in the assets, liabilities, financial condition or operating
results of the Company or any of its Subsidiaries, except changes in the
ordinary course of business that have not had, in the aggregate, a Material
Adverse Effect;
(b) any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the assets, properties, financial condition,
operating results or business of the Company or any of its Subsidiaries;
(c) any waiver by the Company or any of its Subsidiaries of a valuable right or
of a material debt owed to it outside of the ordinary course of business or that
otherwise could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;
(d) any satisfaction or discharge of any Lien or payment of any obligation by
the Company or any of its Subsidiaries that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
(e) any change or amendment to a contract or arrangement by which the Company or
any of its Subsidiaries or any of their respective assets or properties is bound
or subject that could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; or
(f) any events or circumstances that otherwise could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
4.15 Employee Benefit Plans .
With respect, as applicable, to Employee Benefit Plans and Benefit Arrangements
and except as would not result in liability in excess of $50,000 (for purposes
of this Section 4.15, a Material Adverse Effect):
(a) each Qualified Plan that is a Company Plan qualifies under Section 401(a) of
the Code, and any trusts maintained pursuant thereto are exempt from federal
income taxation under Section 501 of the Code;
(b) the Company and the Subsidiaries have no liability (whether actual or
contingent, direct or indirect) with respect to any Employee Benefit Plan
subject to Section 302 of ERISA or Section 412 of the Code or Title IV of ERISA
(including any Multiemployer Plan);
(c) each Company Plan and each Company Benefit Arrangement has been maintained
in accordance with its constituent documents and with all applicable provisions
of the Code, ERISA and other laws, including federal and state securities laws;
(d) there are no pending claims or lawsuits by, against, or relating to any
Employee Benefit Plans or Benefit Arrangements that are not Company Plans or
Company Benefit Arrangements that would, if successful, result in liability of
the Company, and no such claim or lawsuit (other than routine claims for
benefits) has been asserted, instituted or, to the knowledge of the Company and
the Subsidiaries, threatened by, against, or relating to any Company Plan or
Company Benefit Arrangement, or the Company or the Subsidiaries. To the
knowledge of the Company and the Subsidiaries, the Company Plans and Company
Benefit Arrangements are not presently under audit or examination (nor has
notice been received of a potential audit or examination) by the IRS, the
Department of Labor, or any other governmental agency or entity, and no matters
are pending with respect to a Qualified Plan under the IRS's Voluntary
Compliance Resolution program, its Closing Agreement Program, or other similar
programs;
(e) with respect to each Company Plan, there has occurred no non-exempt
"prohibited transaction" (within the meaning of Section 4975 of the Code) or
transaction prohibited by Section 406 of ERISA or breach of any fiduciary duty
described in Section 404 of ERISA that would, if successful, result in any
liability for the Company or any Stockholder, officer, director, or employee of
the Company;
(f) all material reporting, disclosure, and notice requirements of ERISA and the
Code have been satisfied with respect to each Company Plan and each Company
Benefit Arrangement;
(g) payment has been made of all amounts that the Company and each Subsidiary is
required to pay as contributions to the Company Benefit Plans as of the last day
of the most recent fiscal year of each of the plans ended before the date of
this Agreement and all benefits accrued under any unfunded Company Plan or
Company Benefit Arrangement will have been paid, accrued, or otherwise
adequately reserved in accordance with GAAP as of the Balance Sheet Date;
(h) all group health plans of the Company and its ERISA Affiliates have been
operated in material compliance with the requirements of Sections 4980B (and its
predecessor) and 5000 of the Code;
4.16 Taxes. All federal, state, local and foreign tax returns, reports and
statements required to be filed by the Company and its Subsidiaries have been
filed with the appropriate governmental agencies in all jurisdictions in which
such returns, reports and statements are required to be filed. All taxes,
charges and other impositions due and payable by the Company and its
Subsidiaries have been paid in full on a timely basis except where contested in
good faith and by appropriate proceedings if adequate reserves therefor have
been established on the books and records of the Company or Subsidiary in
accordance with GAAP consistently applied. The provision for taxes of each of
the Company and its Subsidiaries as shown in the Company SEC Reports is
sufficient for all unpaid taxes, charges and other impositions of any nature due
or accrued as of the date hereof, whether or not assessed or disputed. Proper
and accurate amounts have been withheld by the Company and its Subsidiaries from
their respective employees for all periods in full and complete compliance with
the tax, social security and unemployment withholding provisions of applicable
federal, state, local and foreign law and such withholdings have been timely
paid to the respective governmental agencies. The Company has not received
notice of any audit or of any proposed deficiencies from any governmental
authority, and no controversy with respect to taxes of any type is pending or
threatened. Except for routine filing extensions granted as a matter of right
under applicable law, none of the Company or any of its Subsidiaries has
executed or filed with the Internal Revenue Service or any other governmental
authority any agreement or other document extending, or having the effect of
extending, the period of assessment or collection of any taxes, charges or other
impositions. None of the Company or any of its Subsidiaries has agreed or is
required to make any adjustment under Section 481(a) of the Code by reason of a
change in accounting method or otherwise. Further, none of the Company or any of
its Subsidiaries has any obligation under any tax-sharing agreement.
4.17 Disclosure. Neither this Agreement nor any of the Transaction Documents nor
any exhibit hereto, nor any report, certificate, or instrument furnished to
Purchaser or its counsel in connection with the transactions contemplated by
this Agreement, when read together, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading.
4.18 Brokers' Fees . Except for persons set forth on Schedule 4.18, whose fees
will be paid solely by the Company, no broker, finder, investment banker or
other Person is entitled to any brokerage fee, finder's fee or other commission
in connection with the transactions contemplated by this Agreement.
SECTION 5
Representations, Warranties and Covenants of the Purchasers
Each Purchaser severally hereby represents and warrants to and agrees with the
Company, as to itself only, as follows:
5.1 Accredited Investor; Experience; Risk . Purchaser is an accredited investor
within the definition of Regulation D promulgated under the Securities Act.
Purchaser has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the purchase of the
Common Stock pursuant to this Agreement.
5.2 Investment. Purchaser is acquiring the Common Stock for investment purposes
only, for its own account and not with a view to, or for resale in connection
with, any distribution thereof in violation of applicable law.
5.3 Authorization. Purchaser represents that it has all requisite power and
authority to enter into and perform its obligations under the Transaction
Documents to which it is a party. Assuming the due authorization, execution and
delivery of the Transaction Documents by each other party thereto, each
Transaction Document to which Purchaser is a party constitutes a valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except to the extent that rights to indemnification and
contribution under this Agreement may be limited by federal or state securities
laws or public policy relating thereto.
5.4 Consents. No consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state, or
local governmental authority or other Person on the part of Purchaser is
required in connection with the valid execution and delivery by Purchaser of the
Transaction Documents to which it is a party, or the consummation by Purchaser
of the transactions contemplated by the Transaction Documents to which it is a
party, except for such filings as have been made prior to the Closing.
5.5 Brokers' Fees . Except as set forth on Schedule 4.18, no broker, finder,
investment banker or other Person is entitled to any brokerage fee, finder's fee
or other commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by the Purchaser.
5.6 Plan Assets. Purchaser is not, and no source of the funds to be used by
Purchaser to acquire the Common Stock are, a "Plan Asset" as such phrase is
defined within the U.S. Department of Labor regulations 2510.3-101.
5.7 Restrictive Legends . Purchaser understands that each of the stock
certificates representing shares of Common Stock issued pursuant to this
Agreement shall bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of such stock
certificates) until the shares of Common stock evidenced by such certificate (i)
have been sold pursuant to a prospectus constituting part of the Shelf
Registration or pursuant to Rule 144 under the Securities Act; or (ii) are
eligible for sale pursuant to Rule 144(k) under the Securities Act.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
If such Purchaser desires to sell or otherwise dispose of all or any part of the
Common Stock owned by it under an exemption from registration under the
Securities Act, and if requested by the Company, such Purchaser shall deliver to
the Company an opinion of counsel, which may be counsel for the Company, that
such exemption is available.
SECTION 6
Conditions to Closing of Purchasers
Each Purchaser's obligation to purchase the Common Stock at the Closing is, at
the option of that Purchaser, subject to the fulfillment on or prior to the
Closing Date of the following conditions:
6.1 Representations and Warranties Correct . The representations and warranties
made by the Company in Section 4 hereof shall be true and correct when made, and
shall be true and correct on the Closing Date with the same force and effect as
if they had been made on and as of such date.
6.2 Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects.
6.3 Registration Statement . The registration statement for the Initial Shelf
Registration (as defined in Section 8.1) has been declared effective by the
Securities and Exchange Commission.
6.4 Opinion of Company's Counsel . Purchasers shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, an opinion addressed to Purchasers,
dated the Closing Date, in substantially the form of Exhibit B hereto.
6.5 No Material Adverse Change . Since September 30, 1997, there shall not have
occurred any events or circumstances that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
6.6 State Securities Laws . All registrations, qualifications and Permits
required under applicable state securities laws, if any, shall have been
obtained for the lawful execution, delivery and performance of this Agreement.
6.7 Certificates. Purchasers shall have received a certificate of the President
or the Chief Financial Officer of the Company to the effect set forth in
Sections 6.1, 6.2 and 6.4.
6.8 Organizational Documents . The Company shall have delivered to each
Purchaser certified copies of the charter and bylaws of the Company in effect at
the Closing.
6.9 Consents. The Company shall have received the consents, or waivers thereto,
set forth on Schedule 4.6.
SECTION 7
Conditions to Closing of the Company
The Company's obligation to issue and sell the Common Stock at the Closing is,
at the option of the Company, subject to the fulfillment of the following
conditions:
7.1 Representations. The representations and warranties made by each Purchaser
in Section 5 hereof shall be true and correct when made, and shall be true and
correct on the Closing Date with the same force and effect as if they had been
made on and as of such date.
7.2 Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by each Purchaser on or prior to the Closing Date
shall have been performed or complied with in all respects.
7.3 Purchase Price . Each Purchaser shall have tendered the purchase price for
the Common Stock as set forth in Section 2.
7.4 Certificate. The Company shall have received a certificate from each
Purchaser to the effect set forth in Sections 7.1 and 7.2.
SECTION 8
Covenants of the Company
8.1 Shelf Registration .
(a) Within 10 business days after the execution of this Agreement, the Company
shall prepare and file with the SEC a Registration Statement for an offering to
be made on a delayed or continuous basis pursuant to Rule 415 of the Securities
Act (a "Shelf Registration") registering the resale from time to time by
Purchasers of all of the Purchasers' Registrable Securities (the "Initial Shelf
Registration"). The Registration Statement for any Shelf Registration shall be
on Form S-3 or another appropriate form permitting registration of such
Registrable Securities for resale by Purchasers in the manner or manners
designated by them. The Company shall provide to each Purchaser a copy of the
Initial Shelf Registration, any Subsequent Shelf Registration (as defined
below), and all amendments thereto sufficiently in advance of the filing with
the SEC of such Registration Statement or amendment thereto so as to provide
Purchasers with adequate time to review and comment on such Registration
Statement. The Company shall use its best efforts to cause the Initial Shelf
Registration to become effective under the Securities Act as promptly as is
practicable and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the end of the Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below) ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all Registrable Securities shall have
been sold or shall have ceased to be Registrable Securities), the Company shall
use its best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty days of such
cessation of effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use all reasonable efforts to
cause the Subsequent Shelf Registration to become effective as promptly as is
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration, if required by the Securities Act or
the SEC, or if reasonably requested by Purchasers.
(d) From time to time, the Company shall prepare and file with the SEC a
post-effective amendment to the Shelf Registration or a supplement to the
related Prospectus or a supplement or amendment to any document incorporated
therein by reference or any other required document, so that such Registration
Statement will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and so that, as thereafter delivered to
purchasers of the Registrable Securities being sold thereunder, such Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provide Purchasers copies of any documents so filed in such numbers
as Purchasers shall reasonably request; and inform Purchasers that the Company
has complied with its obligations and that the Registration Statement and
related Prospectus may be used for the purpose of selling all or any of such
Registrable Securities (or that, if the Company has filed a post-effective
amendment to the Shelf Registration which has not yet been declared effective,
the Company will notify Purchasers to that effect, will use its best efforts to
secure promptly the effectiveness of such post-effective amendment and will
immediately so notify Purchasers when the amendment has become effective).
(e) Registration Expenses. All fees and expenses incident to the Company's
performance of or compliance with a Shelf Registration pursuant to this
Agreement, except for any fees and expenses of counsel for the Purchasers, shall
be borne by the Company whether or not any Registration Statement becomes
effective. Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal securities or Blue
Sky laws (including, without limitation, fees and disbursements of counsel to
Purchasers in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as Purchaser may designate)),
(ii) printing expenses, (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of the Company's independent certified public accountants
(including the expenses of any special audit and "comfort" letters required by
or incident to such performance) and (v) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange or the
Nasdaq Stock Market, as the case may be, on which similar securities issued by
the Company are then listed and the fees and expenses of any Person, including
special experts, retained by the Company. Notwithstanding the provisions of this
subsection, Purchasers shall pay all registration expenses to the extent the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of Purchasers.
(f) Indemnity.
(i) In the event of the registration or qualification of any Registrable
Securities pursuant to a Shelf Registration, the Company agrees to indemnify and
hold harmless each Purchaser, each officer, director, employee, agent and
representative of each Purchaser, each underwriter, broker or dealer, if any, of
such Registrable Securities, and each other Person, if any, who controls such
Purchaser, underwriter, broker or dealer within the meaning of the Securities
Act, Exchange Act or any other applicable securities laws, from and against any
and all losses, claims, damages or liabilities (or actions in respect thereof),
joint or several, to which any of them may become subject under the Securities
Act or any other applicable securities laws or otherwise, 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 (including all documents
incorporated therein by reference) under which such Registrable Securities were
registered or qualified under the Securities Act or any other applicable
securities laws, any preliminary prospectus or final prospectus relating to such
Registrable Securities, or any amendment or supplement thereto, or arise out of
or are based upon the 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 any violation by the Company of any rule or regulation under
the Securities Act or any other applicable securities laws applicable to the
Company or relating to any action or inaction required by the Company in
connection with any such registration or qualification and will reimburse each
Purchaser, each officer, director, employee, agent and representative of each
Purchaser, each such underwriter, broker or dealer and each such controlling
Person for any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable to a
Purchaser in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission made in
such Registration Statement, such preliminary prospectus, such final prospectus
or such amendment or supplement thereto or violation in reliance upon and in
conformity with written information furnished to the Company by such Purchaser,
or any officer, director, employee, agent or representative of such Purchaser
specifically and expressly for use in the preparation thereof; and provided,
further, that the Company shall not be liable to any Person who participates as
an underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the Prospectus, as the
same may be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such Prospectus so long as
such Prospectus, and any amendments or supplements thereto, have been furnished
to such underwriter in sufficient numbers and in a timely-manner to permit
distribution thereof.
(ii) In the event of the registration or qualification of any Registrable
Securities pursuant to a Shelf Registration, each Purchaser severally agrees to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 8.1(f)(i) above) the Company, its officers and directors and
each other Person, if any, who controls the Company within the meaning of the
Securities Act with respect to any untrue statement or alleged untrue statement
in, or omission or alleged omission from, such registration statement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, if such statement or omission (i) arises from written
information provided by that Purchaser to the Company specifically and expressly
for use in the preparation thereof and (ii) was made in reliance upon and in
conformity with such information. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the transfer
of such securities by that Purchaser. Notwithstanding the foregoing, no
Purchaser shall be liable under this Section 8.1(f)(ii) for an amount in excess
of that Purchaser's purchase price as set forth on Exhibit A.
(iii) Promptly after receipt by a Person entitled to indemnification under this
Section 8.1(f) (an "Indemnified Party") of notice of the commencement of any
action or claim relating to any Registration Statement filed pursuant to a Shelf
Registration or as to which indemnity may be sought hereunder, such Indemnified
Party will, if a claim for indemnification hereunder in respect thereof is to be
made against any other party hereto (an "Indemnifying Party"), give written
notice to such Indemnifying Party of the commencement of such action or claim,
but the omission to so notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability that it may have to any Indemnified Party
except to the extent that the Indemnifying Party is actually prejudiced thereby.
In case any such action is brought against an Indemnified Party, and it notifies
an Indemnifying Party of the commencement thereof, the Indemnifying Party will
be entitled (at its own expense) to participate in and, to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense, with counsel reasonably satisfactory to such Indemnified
Party, of such action provided that the Indemnifying Party shall not settle or
compromise such action, except upon the prior written consent of the Indemnified
Party and, after notice from the Indemnifying Party to such Indemnified Party of
its election so to assume the defense thereof, the Indemnifying Party will not
be liable to such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof, other
than the reasonable cost of investigation; provided, however, that the
assumption of such defense shall not give rise in the reasonable opinion of the
Indemnified Party or its counsel to any conflict. Notwithstanding the foregoing,
the Indemnified Party shall have the right to employ its own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (A) the employment of such counsel shall have been
authorized in writing by the Indemnifying Party in connection with the defense
of such suit, action, claim or proceeding, (B) the Indemnifying Party shall not
have employed counsel (reasonably satisfactory to the Indemnified Party) to take
charge of the defense of such action, suit, claim or proceeding, or (C) such
Indemnified Party shall have reasonably concluded, based upon the advice of
counsel, that there may be defenses available to it that are different from or
additional to those available to the Indemnifying Party which, if the
Indemnifying Party and the Indemnified Party were to be represented by the same
counsel, could result in a conflict of interest for such counsel or materially
prejudice the prosecution of the defenses available to such Indemnified Party.
If any of the events specified in clauses (A), (B) or (C) of the preceding
sentence shall have occurred or shall otherwise be applicable, then the fees and
expenses of one counsel or firm of counsel selected by the Indemnified Party
(and reasonably acceptable to the Indemnifying Party) shall be borne by the
Indemnifying Party. If, in any such case, the Indemnified Party employs separate
counsel, the Indemnifying Party shall not have the right to direct the defense
of such action, suit, claim or proceeding on behalf of the Indemnified Party and
the Indemnified Party shall assume such defense and/or settle or compromise such
action; provided, however, that an Indemnifying Party shall not be liable for
the settlement or compromise of any action, suit, claim or proceeding effected
without its prior written consent, which consent shall not be unreasonably
withheld.
(iv) If the indemnification provided for in this Section 8.1(f) shall for any
reason be held by a court to be unavailable to an Indemnified Party in respect
of any indemnified damages, then, in lieu of the amount paid or payable under
subparagraph (i) or (ii) hereof, the Indemnified Party and the Indemnifying
Party shall contribute to the aggregate indemnified damages, in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party with respect to the statements or omissions which resulted
in such indemnified damages, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Purchasers on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 8.1(f) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8.1(f). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation and no Purchaser shall be required
to contribute any amount in excess of that Purchaser's aggregate purchase price
for the shares of Common Stock purchased hereunder. In addition, no Person shall
be obligated to contribute hereunder any amounts in payment for any settlement
of any action or claim effected without such Person's consent, which consent
shall not be unreasonably withheld.
(g) Mergers, Etc. The Company shall not, directly or indirectly, enter into any
merger, consolidation, or reorganization in which the Company shall not be the
surviving corporation unless the proposed surviving corporation shall, prior to
such merger, consolidation, or reorganization, agree in writing to assume the
obligations of the Company under this Section, and for that purpose references
hereunder to "Registrable Securities" shall be deemed to be references to the
securities that Purchasers would be entitled to receive in exchange for
Registrable Securities under any such merger, consolidation, or reorganization.
8.2 Delay and Holdback of Registration .
(a) With regard to and notwithstanding Section 8.1, in connection with any
proposed sale of Registrable Securities by a Purchaser pursuant to the Shelf
Registration, the Company may require the Purchasers not to make such sale if
(i) in the opinion of the Board of Directors of the Company or a duly authorized
committee thereof, expressed in a resolution adopted by the Board or such
committee delivered to the Purchaser proposing to make such sale, (w) securities
laws applicable to such sale would require the Company to disclose material
non-public information ("Non-Public Information") and (x) the disclosure of such
Non-Public Information would adversely affect the Company or (ii) such sale
would occur (y) during the measurement period (a "Measurement Period") for
determining the amount of Common Stock, or the amount of any other consideration
the amount of which will be based on the price of the Common Stock, in
connection with the acquisition of a business or assets by the Company or (z)
during the five (5) day period immediately preceding the execution of any
underwriting agreement for a firm-commitment underwritten offering of Common
Stock (a "Pricing Period" and, together with a Measurement Period, a "Restricted
Period"). In the event the sale by a Purchaser of Registrable Securities is
deferred because of the existence of Non-Public Information, the Company will
notify such Purchaser promptly upon such Non-Public Information being included
by the Company in a filing with the Commission, being otherwise disclosed to the
public (other than through the actions of a Purchaser) or ceasing to be material
to the Company, and upon such notice being given by the Company, such Purchaser
shall again be entitled to sell Registrable Securities as provided herein. In
the event the sale by a Purchaser of Registrable Securities is deferred because
it is proposed to be made during a Restricted Period, the Company shall specify,
in notifying the Purchasers of the deferral of its sale, when the Restricted
Period will end, at which time the Purchasers shall again be entitled to sell
Registrable Securities as provided herein. If the Restricted Period is
thereafter changed, the Company will promptly notify the Purchasers of such
change and upon the end of the Restricted Period as so changed, the Purchasers
will again be entitled to sell Registrable Securities as provided herein. If the
acquisition agreement to which a Measurement Period relates is terminated prior
to the end of the Measurement Period, the deferral period hereunder shall end
immediately and the Company will notify the Purchaser of the end of the deferral
period. The Company may defer proposed sales of Registrable Securities pursuant
to this Section 8.2(a) for not more than a total of 90 days in any 365-day
period.
(b) If, after a registration statement becomes effective, the Company advises
Purchasers that the Company considers it appropriate for the registration
statement to be amended, the Company shall use its best reasonable efforts to
amend such registration statement as soon as practicable (which shall in no
event be more than 30 days) and the holders of such shares shall suspend any
further sales of their registered shares until the Company advises them that the
registration statement has been so amended.
SECTION 9
Miscellaneous
9.1 Amendment; Waiver . Neither this Agreement nor any provision hereof may be
amended, modified, supplemented or waived, except by a written instrument
executed by (i) the Company and (ii) Purchasers holding a majority in interest
of the Common Stock issued and sold pursuant to this Agreement and the shares of
Common Stock issuable upon conversion thereof.
9.2 Notices. Any notices or other communications required or permitted hereunder
shall be sufficiently given if in writing and delivered in Person, transmitted
by facsimile transmission (fax) or sent by registered or certified mail (return
receipt requested) or recognized overnight delivery service, postage pre-paid,
addressed as follows, or to such other address has such party may notify to the
other parties in writing:
(a) if to the Company:
Anicom, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to a Purchaser:
To the address listed next to each such Purchaser
on Exhibit A hereto.
A notice or communication will be effective (i) if delivered in Person or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
telecopier, on the business day of actual confirmed receipt by the addressee
thereof, and (iii) if sent by registered or certified mail, three (3) business
days after dispatch.
9.3 Survival of Representations, Warranties and Covenants . All representations
and warranties made in, pursuant to or in connection with this Agreement shall
survive the execution and delivery of this Agreement, any investigation at any
time made by or on behalf of any Purchaser, and the sale and purchase of the
Common Stock and payment therefor for a period of one (1) year.
9.4 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
9.5 Successors and Assigns . Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors and
assigns of the parties hereto, including, without limitation, each transferee of
all or any portion of the Common Stock. No party hereto may assign its rights or
delegate its obligations under this Agreement without the prior written consent
of the other parties hereto; provided, however, a Purchaser may assign its
rights and delegate its obligations under this Agreement upon the Company's
prior written consent which consent will not be unreasonably withheld; provided,
further, that Purchaser may assign its rights and remedies with respect to
registration rights as set forth in Section 8.1 to an Affiliate of such
Purchaser without the consent of the Company. The Parties agree that, among
other reasons, it will be reasonable for the Company to withhold such consent if
the proposed assignee is a competitor to the Company or an Affiliate thereof.
9.6 Entire Agreement . This Agreement and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subject matter hereof and thereof and supersede and
cancel all prior representations, alleged warranties, statements, negotiations,
undertakings, letters, acceptances, understandings, contracts and
communications, whether verbal or written, among the parties hereto and thereto
or their respective agents with respect to or in connection with the subject
matter hereof.
9.7 Choice of Law . This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.
9.8 Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, with the same effect
as if all parties had signed the same document. All such counterparts shall be
deemed an original, shall be construed together and shall constitute one and the
same instrument.
9.9 Indemnification.
(a) The Company agrees to indemnify and hold harmless each Purchaser and its
Affiliates, and its respective partners, co-investors, officers, directors,
employees, agents, consultants, attorneys and advisers (each, a "Purchaser
Indemnified Party"), from and against any and all actual losses, claims,
damages, liabilities, costs and expenses (including, without limitation,
environmental liabilities, costs and expenses and all reasonable fees, expenses
and disbursements of counsel), joint or several (hereinafter collectively
referred to as a "Loss" or "Losses"), which may be incurred by or asserted or
awarded against any Purchaser Indemnified Party in connection with or in any
manner arising out of or relating to, including pursuant to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to, any breach of any
representation, warranty or covenant made by the Company in this Agreement.
(b) Each Purchaser severally agrees to indemnify and hold harmless the Company
and its Affiliates, and its respective officers, directors, employees, agents,
consultants, attorneys and advisers (each, a "Company Indemnified Party"), from
and against any and all Losses, which may be incurred by or asserted or awarded
against any Company Indemnified Party in connection with or in any manner
arising out of or relating to any investigation, litigation or proceeding or the
preparation of any defense with respect thereto, arising out of or in connection
with or relating to any breach of any representation, warranty or covenant made
by such Purchaser in this Agreement. Notwithstanding the foregoing, no Purchaser
shall be liable under this Section 9.9(b) for an amount in excess of that
Purchaser's purchase price as set forth on Exhibit A.
(c) An indemnified party shall give written notice to the indemnifying party of
any claim with respect to which it seeks indemnification within ten (10) days
after the discovery by such parties of any matters giving arise to a claim for
indemnification pursuant to this Section 9.9; provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 9.9, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action or claim is brought against any indemnified
party, the indemnifying party shall be entitled to participate in and, unless in
the reasonable good faith judgment of the indemnified party a conflict of
interest between such indemnified party and the indemnifying party may exist in
respect of such action or claim, to assume the defense thereof, with counsel
satisfactory to the indemnified party and after notice from the indemnifying
party to the indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection with
the defense thereof other than reasonable costs of investigation. In any event,
unless and until the indemnifying party elects in writing to assume and does so
assume the defense of any such action or claim the indemnified party's costs and
expenses arising out of the defense, settlement or compromise of any such action
or claim shall be Losses subject to indemnification hereunder. If the
indemnifying party elects to defend any such action or claim, then the
indemnified party shall be entitled to participate in such defense with counsel
of its choice at its sole cost and expense. The indemnifying party shall not be
liable for any settlement of any action or claim effected without its written
consent. Anything in this Section 9.9 to the contrary notwithstanding, the
indemnifying party shall not, without the indemnified party's prior written
consent, settle or compromise any claim or consent to entry of any judgment in
respect thereof that imposes any future obligation on the indemnified party or
that does not include, as an unconditional term thereof, the giving by the
claimant or the plaintiff to the indemnified party a release from all liability
in respect of such claim.
9.10 No Third-Party Beneficiaries . Nothing in this Agreement will confer any
third party beneficiary or other rights upon any Person (specifically including
any employees of the Company and its Subsidiaries) or entity that is not a party
to this Agreement.
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STOCK PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Agreement to be executed effective as of the date first above written.
ANICOM, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Financial Officer
PURCHASERS:
Representative Capacity.
FIDELITY SELECT PORTFOLIOS: Developing Communications Portfolio, as Purchaser,
hereby gives notice to the Company that the Purchaser is a portfolio of the
Fidelity Select Portfolios (the "Trust"), which is a Massachusetts business
trust, and that a copy of the Trust's Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts. The Company acknowledges and
agrees that this Agreement is not executed on behalf of the trustees of the
Trust as individuals, and the obligations of the Purchaser under this Agreement
are not binding upon any of the trustees, officers or shareholders of the Trust
individually or upon any portfolio or assets of the Trust except the assets and
property of the Purchaser.
FIDELITY SELECT PORTFOLIOS:
Developing Communications Portfolio
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Assistant Treasurer
THE LINCOLN FUND, L.P.
By: MATLINS FINANCIAL CONSULTING, INC., its general partner
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, President
THE LINCOLN FUND TAX ADVANTAGE, L.P.
By: MATLINS FINANCIAL CONSULTING, INC., its general partner
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, President
THE ▇▇▇▇▇▇ FUND, L.P.
By: LIGHTHOUSE CAPITAL MANAGEMENT, L.L.C.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, President
MATLINS FINANCIAL CONSULTING, INC. PENSION PLAN
By: MATLINS FINANCIAL CONSULTING, INC., its trustee
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, President
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TESTAMENTARY TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Trustee
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director
▇▇▇▇▇ ▇. ▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
INQUEST LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇ FBO ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Custodian
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PROVIDENCE ENERGY, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇ ▇. ▇▇▇▇▇▇ LIVING TRUST
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
PRINCE FAMILY LIMITED PARTNERSHIP
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
RDV CAPITAL MANAGEMENT, L.P.
By: RDV Corporation, Its General Partner
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
RDV CORP SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN FBO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: Grand Bank, Trustee
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
/S/ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇ ▇. ▇▇▇, JOINT TENANTS
/S/ ▇▇▇▇▇ VAN DER ▇▇
▇▇▇▇▇ VAN DER Aa
