EXHIBIT 10.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is dated as of November
12, 1996, by and between Welcome Home, Inc., a Delaware corporation
("Welcome Home"), and Jordan Industries, Inc., an Illinois corporation
("Jordan Industries").
W I T N E S S E T H
WHEREAS, Welcome Home and Jordan Industries are parties to an Amended
and Restated Credit Agreement, dated as of May 30, 1995, and as amended by
amendment no. 1 thereto, dated as of May 15, 1996 (the "Credit Agreement");
WHEREAS, as of the date hereof, the aggregate amount of all loans
outstanding under the Credit Agreement and interest accrued thereunder is
$4,450,604, which is represented by an account of Welcome Home entitled
"Advances-Jordan" (Account No. 2210-05) (the "Jordan Account");
WHEREAS, Jordan Industries has agreed to exchange (the "Exchange")
the indebtedness owed to it under the Jordan Account for a newly designated
class of capital stock of Welcome Home (the "Series A Preferred Stock"),
which shall have such rights, preferences and powers as set forth in that
certain Certificate of Designation, attached hereto as Exhibit A (the
"Certificate of Designation");
WHEREAS, Jordan Industries and Welcome Home acknowledge and agree
that after the Exchange, the Credit Agreement (and the liens secured
thereunder) shall not terminate and will remain in place for future loans
or other advances from Jordan Industries to Welcome Home;
WHEREAS, the Board of Directors of Welcome Home has been made fully
aware of the interests of certain members of its Board of Directors in
Jordan Industries;
WHEREAS, the Board of Directors of Welcome Home has reviewed in
detail and discussed the terms and provisions of this Agreement and the
Certificate of Designation; and
WHEREAS, on the basis of its review of this Agreement, the Board of
Directors of Welcome Home deems it advisable and in the best interests of
Welcome Home and necessary to the conduct, promotion, and attainment of the
business objectives of Welcome Home that this Agreement be entered into.
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, Welcome Home and
Jordan Industries hereby agree as follows:
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ARTICLE I
ISSUANCE AND EXCHANGE
1.1 Issuance and Exchange. Subject to the terms and conditions set
forth in this Agreement, at the closing Welcome Home hereby agrees to issue
to Jordan Industries 4,451 shares of Series A Preferred Stock ) in exchange
for the indebtedness owed to Jordan Industries under the Jordan Account.
1.2 Closing. The transactions described in Section 1.1 shall be
consummated at a closing to be held at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 5 PM on November 12, 1996, or at
such other time and such other date or place as Welcome Home and Jordan
Industries may mutually agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF WELCOME HOME
In order to induce Jordan Industries to enter into the transactions
referred to in Article I, Welcome Home makes the following representations
and warranties:
2.1 Organization and Standing. Welcome Home is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has full corporate power and authority to conduct its
business as presently conducted and as proposed to be conducted by it and
to enter into and perform this Agreement and to carry out the transactions
contemplated hereunder. Welcome Home is duly qualified to do business as a
foreign corporation and is in good standing in every jurisdiction in which
the failure so to qualify would have a material adverse effect on the
operations or financial condition of Welcome Home.
2.2 Issuance of Securities. The shares of Series A Preferred Stock
to be issued under this Agreement will be duly and validly issued, fully
paid and non-assessable and free from any lien, charge or encumbrance
(except those that may be placed thereon by Jordan Industries).
2.3 Authority for Agreement. The execution, delivery and
performance by Welcome Home of this Agreement and the Certificate of
Designation, and the consummation by Welcome Home of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action.
2.4 Binding Agreement. This Agreement has been duly executed and
delivered by Welcome Home and constitutes the valid and binding obligation
of Welcome Home enforceable against Welcome Home in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
creditors' rights generally, and by legal and equitable limitations on the
availability of specific remedies.
2.5 Certificate of Designation. The Certificate of Designation has
been filed, or will be filed immediately after the execution of this
Agreement, with and recorded by the Secretary of State of the State of
Delaware.
2.6 Solicitation Expenses. Welcome Home has not paid or given
directly or indirectly to any person any commission or other remuneration
for soliciting the Exchange.
ARTICLE III
JORDAN INDUSTRIES REPRESENTATIONS
Jordan Industries hereby represents and warrants to Welcome Home as
follows:
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3.1 Authority for Agreement. The execution, delivery and
performance by Jordan Industries of this Agreement, and the consummation by
Jordan Industries of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action.
3.2 Binding Agreement. This Agreement has been duly executed and
delivered by Jordan Industries and constitutes the valid and binding
obligation of Jordan Industries enforceable against Jordan Industries in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect
which affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
3.3 Securities Act Matters.
(a) Jordan Industries acknowledges that the Series A Preferred
Stock has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), on the ground that the Exchange is
exempt from the registration requirements of the Securities Act.
(b) Jordan Industries represents that the Series A Preferred
Stock has been acquired solely by and for the account of Jordan
Industries for investment purposes only, and is not being acquired
for subdivision, fractionalization, resale or distribution. Jordan
Industries has no contract, undertaking, agreement or arrangement
with any other person to sell, transfer or pledge the Series A
Preferred Stock (or any part thereof) which Jordan Industries has
acquired hereunder. Jordan Industries has no present plans or
intentions to enter into any such contract, undertaking, agreement or
arrangement.
(c) Jordan Industries has not paid or given directly or
indirectly to any person any commission or other remuneration for
soliciting the Exchange.
(d) Jordan Industries acknowledges that the Series A Preferred
Stock may not be sold, transferred or otherwise conveyed except
pursuant to registration or qualification under the Securities Act or
an exemption therefrom.
(e) Jordan Industries acknowledges that it knows and
understands that an investment in the Series A Preferred Stock is a
speculative investment which involves a high risk of loss.
(f) Jordan Industries represents that is an "accredited
investor" (as defined and used in Rule 501 promulgated under the
Securities Act).
(g) Welcome Home has afforded Jordan Industries and its
advisors the opportunity to discuss an investment in the Series A
Preferred Stock and to ask questions of representatives of Welcome
Home concerning its businesses and an investment in the Series A
Preferred Stock, and such representatives have provided answers to
all such questions. Jordan Industries acknowledges that there have
been no general or public solicitations or advertisements or other
broadly disseminated disclosures (including, without limitation, any
advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over television
or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or advertising) by or on behalf of
Welcome Home regarding an investment in the Series A Preferred Stock.
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(h) Jordan Industries acknowledges that each certificate for
Series A Preferred Stock will be imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD
OR TRANSFERRED OR OFFERED FOR SALE OR TRANSFER UNLESS A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES
LAWS WITH RESPECT TO SUCH SECURITIES IS THEN IN EFFECT, OR IN THE
OPINION OF COUNSEL, SUCH REGISTRATION UNDER THE SECURITIES ACT AND
OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED."
Jordan Industries acknowledges that the effect of this legend, among other
things, is or may be to limit or destroy the value of the certificate for
purposes of sale or for use as loan collateral. Jordan Industries consents
that "stop transfer" instructions may be noted against the Series A
Preferred Stock.
ARTICLE IV
REGISTRATION RIGHTS
4.1 Certain Definitions. As used in this Article IV, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, $.01 par value per
share, of Welcome Home, as constituted as of the date of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Redemption Date" shall mean the date or dates that Welcome Home
may redeem the Series A Preferred Stock in accordance with the
Certificate of Designation.
"Registrable Stock" shall mean all shares of Common Stock, if
any, issued upon the redemption of the Series A Preferred Stock on
the Redemption Date. As to any particular share of Registrable
Stock, such securities shall cease to be Registrable Stock when they
have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force).
4.2 Demand Registration. (a) At any time beginning after the
Redemption Date, Jordan Industries shall be entitled to request on one or
more occasions that the Company use its best efforts to register under the
Securities Act all or a portion of the Registrable Stock; provided, that
such request includes not less than 25% of the total shares of the
Registrable Stock. Notwithstanding anything to the contrary contained
herein, no request may be made under this Section 4.2 within 120 days after
the effective date of a registration statement filed by Welcome Home
covering a firm commitment underwritten public offering in which Jordan
Industries participated or elected not to participate pursuant to Section
4.3 hereof.
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(b) Welcome Home shall be entitled to include in the
registration referred to in Section 4.2(a), for sale in accordance with the
method of disposition specified therein, shares of Common Stock to be sold
by Welcome Home for its own account or for sale by others. Notwithstanding
the foregoing, if a demand registration pursuant to Section 4.2(a) is a
firm commitment underwritten public offering of Common Stock and the
managing underwriters advise Welcome Home that in their opinion the number
of shares of Common Stock to be underwritten exceeds the number which can
be sold in an orderly manner in such offering within a price range
acceptable to Jordan Industries, then the shares of Common Stock being
registered on behalf of Welcome Home and/or others shall be excluded from
such registration to the extent required by such limitation.
(c) Except for registration statements on Form ▇-▇, ▇-▇ or any
successor thereto, the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its
own account or that of other stockholders, from the date of receipt of a
notice pursuant to Section 4(a) until the completion of the period of
distribution of the registration contemplated thereby.
4.3 Incidental Registration. If the Company at any time after the
Redemption Date proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for
the account of other security holders or both (except with respect to
registration statements on Forms ▇-▇, ▇-▇, a transaction described under
Rule 145 of the Securities Act, or another form not available for
registering the Registrable Stock for sale to the public), each such time
it will give a written notice to Jordan Industries setting forth (i) the
date that Welcome Home intends to register shares of Common Stock under the
Securities Act, (ii) the names of any proposed managing or lead
underwriters and (iii) the intended plan of distribution. Upon the written
request of Jordan Industries, received by Welcome Home within 30 days after
the giving of the notice by Welcome Home to register any shares of its
Common Stock (which request shall state the intended method of disposition
of a specified number of shares of Common Stock), Welcome Home will use its
best efforts to cause such Registrable Stock as to which registration has
been requested to be included in the registration statement proposed to be
filed by Welcome Home. In the event that any registration pursuant to this
Section 4.3 shall be, in whole or in part, a firm commitment underwritten
public offering of Common Stock and the managing underwriters advise
Welcome Home that in their opinion the number of shares of Common Stock to
be underwritten exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to Jordan Industries, then
the number of shares of Common Stock to be included in such an underwriting
shall be reduced pro rata between Welcome Home and Jordan Industries based
upon the number of shares of Common Stock requested to be included in such
registration statement; provided, however, that the number of shares of
Registrable Stock shall be limited only after the exclusion of any shares
to be included in such underwriting for the account of any person other
than Welcome Home or Jordan Industries.
4.4 Registration Procedures. If and whenever Welcome Home is
required by the provisions of Article IV to use its best efforts to effect
the registration of any shares of Registrable Stock under the Securities
Act, Welcome Home will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such securities which shall permit the
disposition of the Registrable Stock in accordance with the intended
method or methods thereof and use its best efforts to cause such
registration statement to become and remain effective for a period of
(i) one hundred twenty (120) days or (ii) until the completion of the
period of the distribution contemplated in the registration
statement, whichever first occurs;
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(b) use reasonable efforts to furnish to Jordan Industries,
copies of the registration statement before its filing with the
Commission, and to reasonably respond to comments received from such
persons;
(c) advise Jordan Industries and each underwriter (if any)
under such registration statement (i) when the prospectus or any
prospectus supplement or post-effective amendment has been filed and
when the same has become effective, (ii) whether the Commission has
issued any stop order suspending the effectiveness of a registration
statement of Welcome Home, and (iii) whether any state securities
commission has suspended the qualification of the Registrable Stock
for sale in any jurisdiction;
(d) prepare and file with the Commission 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 for the period specified therein, and comply with
the provisions of the Securities Act with respect to the disposition
of all Registrable Stock covered by such registration statement for
such period;
(e) furnish to Jordan Industries and to each underwriter (if
any) such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus)
and such other documents as those persons reasonably may request in
order to facilitate the public sale or other disposition of the
Registrable Stock covered by such registration statement;
(f) use its best efforts to register or qualify the Registrable
Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as Jordan Industries or, in the
case of an underwritten public offering, the managing underwriter
reasonably shall request; provided, however, that Welcome Home shall
not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
(g) use its best efforts to list the securities covered by such
registration statement with any securities exchange or automated
quotation system on which the Common Stock of Welcome Home is then
listed;
(h) immediately notify Jordan Industries and each underwriter
(if any) under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which Welcome Home
has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(i) if the offering is underwritten and at the request of
Jordan Industries, use its best efforts to furnish on the date that
the Registrable Stock is delivered to the underwriters (if any) for
sale pursuant to such registration: (i) an opinion dated such date of
counsel representing Welcome Home for the purposes of such
registration, addressed to the underwriters and to Jordan Industries,
stating that such registration statement has become effective under
the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or
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are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with
the requirements of the Securities Act (except that such counsel need
not express any opinion as to financial statements or other financial
data contained therein) and (C) to such other effects as reasonably
may be requested by counsel for the underwriters or by Jordan
Industries or its counsel and (ii) a letter dated such date from the
independent public accountants retained by Welcome Home, addressed to
the underwriters and to Jordan Industries, stating that they are
independent public accountants within the meaning of the Securities
Act and that, in the opinion of such accountants, the financial
statements of Welcome Home included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including
information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration
as such underwriters reasonably may request; and
(j) subject to execution of confidentiality agreements that are
reasonably satisfactory to Welcome Home, make available upon
reasonable notice and at reasonable times for inspection by Jordan
Industries, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant
or other agent retained by Jordan Industries or the underwriter, all
financial and other records, pertinent corporate documents and
properties of Welcome Home, and cause Welcome Home's officers,
directors and employees to supply all information requested by any
such seller, underwriter, attorney, accountant or agent in connection
with such registration statement reasonably necessary, in the opinion
of counsel for such person, to conduct a reasonable investigation in
accordance with Section 11 of the Securities Act.
In connection with each registration hereunder, Jordan Industries
will furnish to Welcome Home in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with the Federal and applicable
state securities laws. Welcome Home may exclude Jordan Industries if it
fails to provide such information in an accurate and timely manner.
4.5 Expenses. All expenses incurred by Welcome Home in complying
with this Article IV, including, without limitation, all registration,
listing and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for Welcome Home, fees and
expenses (including counsel fees) incurred in connection with complying
with state securities or "blue sky" laws, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of insurance and reasonable fees and disbursements of
counsel for Jordan Industries, shall be paid by Welcome Home. All
underwriting discounts and selling commissions applicable to the sale of
Registrable Stock shall be paid by Jordan Industries (except to the extent
the Registrable Stock is sold by a party other than Jordan Industries).
4.6 Indemnification and Contribution. (a) In the event of a
registration of any Registrable Stock under the Securities Act pursuant to
this Article IV, Welcome Home will indemnify and hold harmless Jordan
Industries, each underwriter (if any) of such Registrable Stock thereunder
and each other person, if any, who controls Jordan Industries or such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which Jordan
Industries, such underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
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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 such Registrable Stock
was registered under the Securities Act pursuant to this Article IV, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, 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, and will reimburse Jordan Industries, each such underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that Welcome
Home will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished in writing by Jordan
Industries, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Registrable
Stock under the Securities Act pursuant to this Article IV, Jordan
Industries will indemnify and hold harmless Welcome Home, each person, if
any, who controls Welcome Home within the meaning of the Securities Act,
each officer of Welcome Home who signs the registration statement, each
director of Welcome Home, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which Welcome Home or
such officer, director, underwriter or controlling person may become
subject under the Securities Act 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 the registration statement under which such
Registrable Stock was registered under the Securities Act pursuant to this
Article IV, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, 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, and will reimburse Welcome Home and each such
officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that Jordan Industries will not be liable hereunder in any such
case if and only to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
in conformity with information furnished by Welcome Home, any such
underwriter or any such controlling person in writing specifically for use
in such registration statement or prospectus; provided, further, that the
liability of Jordan Industries shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the
proportion that the public offering price of the shares sold by Jordan
Industries under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to
exceed the net proceeds received by Jordan Industries from the sale of the
Registrable Stock covered by such registration statement (as further
reduced by any damages or other amounts such seller was otherwise required
to pay by reason of such omission or alleged omission or such untrue or
alleged untrue statement).
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
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liability which it may have to such indemnified party other than under this
Section 4.6 and shall only relieve it from any liability which it may have
to such indemnified party under this Section 4.6 if and to the extent the
indemnifying party is prejudiced by such omission. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume
and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 4.6 for any legal
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party
or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified
party shall have the right to select a separate counsel reasonably
acceptable to the indemnifying party and to assume such legal defenses and
otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other expenses related to
such participation to be reimbursed by the indemnifying party as incurred.
No indemnifying party, in defense of any such action, shall, except with
the consent of each indemnified party, consent to the entry of any judgment
or enter into any settlement which does not include as an unconditional
term thereof the giving, by the claimant or plaintiff, to such indemnified
party of a release from all liability in respect to such action.
4.7 Changes in Common Stock. If, and as often as, there is any
change in the Registrable Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Registrable
Stock as so changed.
4.8 Public Information. With a view to making available the
benefits of certain rules and regulations of the Securities Act which may
at any time permit the sale of the Registrable Stock to the public without
registration, Welcome Home agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of Welcome
Home under the Securities Act and the Exchange Act; and
(c) furnish to Jordan Industries upon request a written
statement by Welcome Home as to its compliance with the reporting
requirements of Rule 144, the Securities Act, and the Exchange Act, a
copy of the most recent annual or quarterly report of Welcome Home,
and such other reports and documents filed by Welcome Home or notices
received by Welcome Home as Jordan Industries may reasonably request
in availing itself of any rule or regulation of the Securities Act
allowing Jordan Industries to sell its shares of Registrable Stock
without registration.
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ARTICLE V
MISCELLANEOUS
5.1 Effect on Credit Agreement and Other Indebtedness.
Notwithstanding the consummation of this Agreement and the transactions
contemplated herein (including, without limitation, the Exchange), (i) the
security interest in the Collateral (as defined in the Credit Agreement)
granted to Jordan Industries shall not be terminated or amended and the
terms and provisions of the Credit Agreement shall remain in full force and
effect, except that the aggregate amount of all Loans (as defined in the
Credit Agreement) outstanding as of the date hereof shall be reduced to
zero and (ii) the terms, provisions, and amounts of all other indebtedness
owed to Jordan Industries by Welcome Home (i.e. indebtedness other than the
indebtedness represented by the Jordan Account) shall not be amended,
modified or otherwise affected in any form or manner and shall remain in
full force and effect in accordance with their respective terms.
5.2 Parties in Interest. Except as otherwise set forth herein, all
covenants, agreements, representations, warranties, undertakings and
registration rights contained in this Agreement shall be binding on and
shall inure to the benefit of the respective successors and assigns of the
parties hereto (including subsequent holders of any shares of Series A
Preferred Stock transferred by Jordan Industries).
5.3 Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, all portions of
any paragraphs of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall not in any way be affected or impaired thereby.
5.4 Amendments and Waivers. This Agreement may be amended or
modified in whole or in part, only by an instrument in writing signed by
all parties hereto. This Agreement sets forth the entire understanding of
the parties, and supersedes all prior agreements, arrangements and
communications, whether oral or written, with respect to the subject matter
hereof. Any waiver by any of the parties hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach of the same or any other provision hereof.
5.5 Notices. All notices under this Agreement shall be in writing
and shall be deemed to have been delivered, given and received, (i) if
personally sent or sent by telegram, when received at the address for the
applicable person set forth below, (ii) on the date of acknowledgement or
receipt if sent by telex, facsimile or other wire transmission, (iii) if
sent by an express courier service, on the first business day following the
date on which the notice is deposited with such courier service for next
business day delivery or (iv) three days after being deposited in the U.S.
mail, certified or registered mail, postage prepaid, addressed as follows:
To Welcome Home:
▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
To Jordan Industries:
Arbor Lake Centre
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: President
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5.6 Effect of Headings. The article and section headings herein are
for convenience only and shall not affect the construction hereof.
5.7 Governing Law. This Agreement shall be deemed a contract made
under the laws of New York and together with the rights and obligations of
the parties hereunder, shall be construed under and governed by the laws of
New York, without giving effect to any principles of conflicts of law that
would result in the application of the laws of any other jurisdiction.
5.8 Further Assurances. Each party, at the request of the other,
shall promptly execute and deliver or cause to be executed and delivered to
such other party any and all other documents, in addition to those
otherwise required by this Agreement, in form and substance reasonably
satisfactory to such other party, as such other party may reasonably
request from time to time in order to carry out or evidence the
transactions contemplated by this Agreement.
5.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which
shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers on the date first above
written.
WELCOME HOME, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer
JORDAN INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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