EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of the
13th day of June, 2003, among each stockholder and/or warrant holder of
VIEWPOINT INTERNATIONAL, INC., a Delaware corporation (the "Company") listed on
Schedule 1 hereto (each, a "Seller" and collectively, the "Sellers"); S. Xxxxxxx
Xxxxxxxx, an individual resident of Connecticut, and Xxxxx X. Xxxx, an
individual resident of Connecticut, as the Sellers' Representatives (the
"Sellers' Representatives"); and OXFORD INDUSTRIES, INC., a Georgia corporation
(the "Buyer").
WHEREAS, the Buyer, the Company, and the Sellers entered into a Stock
Purchase Agreement (the "Purchase Agreement"), dated as of April 26, 2003,
pursuant to which the Sellers agreed to sell, and the Buyer agreed to purchase,
all of the outstanding stock and equity interests of the Company on the terms
and conditions set forth in the Purchase Agreement;
WHEREAS, pursuant to Section 8.12 and Section 9.5 of the Purchase
Agreement, the Buyer, the Company, and the Sellers agreed to enter into an
Earnout Agreement (the "Earnout Agreement"), dated as of the date hereof, as a
condition to consummation of the transactions contemplated by the Purchase
Agreement;
WHEREAS, pursuant to Section 8.21 and Section 9.8 of the Purchase
Agreement, the parties agreed to enter into this Agreement as a condition to
consummation of the transactions contemplated by the Purchase Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
(a) "Business Day" shall mean any day on which banking
institutions in New York, New York and the Stock Exchange are
customarily open for the purpose of transacting business.
(b) "Buyer Notice" shall have the meaning set forth in
Section 4(b) hereof.
(c) "Buyer Refusal Period" shall have the meaning set
forth in Section 4(b) hereof.
(d) "Common Stock" shall mean the common stock, par value
$1.00 per share, of the Buyer.
(e) "Company" shall have the meaning set forth in the
preamble.
(f) "Covered Person" shall have the meaning set forth in
Section 3(a) hereof.
(g) "Delay Notice" shall have the meaning set forth in
Section 2(b)(i) hereof.
(h) "Earnout Agreement" shall have the meaning set forth
in the recitals.
(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
(j) "Material Development Condition" shall have the
meaning set forth in Section 2(b)(i) hereof.
(k) "Offer" shall have the meaning set forth in Section
4(a) hereof.
(l) "Offered Shares" shall have the meaning set forth in
Section 4(a) hereof.
(m) "Person" shall mean any individual,
partnership, limited liability company, corporation, association,
trust, joint venture, unincorporated organization, labor union or other
entity.
(n) "Purchase Agreement" shall have the meaning set forth
in the recitals.
(o) "Registration Notice" shall mean a written notice
from the Sellers' Representatives requesting the Buyer to file a Shelf
Registration Statement or, to the extent a Shelf Registration Statement
has been filed and become effective, to make such Shelf Registration
Statement available for resales thereunder.
(p) "Registrable Securities" shall mean any Shares held
by the Sellers, excluding (i) Shares that have been sold pursuant to
any Shelf Registration Statement or any other effective registration
statement, (ii) Shares sold or otherwise transferred pursuant to Rule
144 under the Securities Act, (iii) Shares held by any Seller if all of
such Shares are eligible for sale pursuant to Rule 144 under the
Securities Act in one transaction in accordance with the volume
limitations contained in Rule 144(e) under the Securities Act and (iv)
Shares eligible for sale under Rule 144(k) under the Securities Act.
(q) "Resale Window" shall have the meaning set forth in
Section 2(a) hereof.
(r) "Right of Refusal Oxford Trading Price" shall mean
the average of the high and low per share sales prices of a share of
Common Stock during the regular trading session on the applicable Stock
Exchange on the trading day immediately preceding the date that any
Seller makes an applicable Offer.
(s) "Right of Refusal Sale Date" shall have the meaning
set forth in Section 4(c) hereof.
(t) "SEC" shall mean the Securities and Exchange
Commission.
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(u) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
(v) "Sellers" shall have the meaning set forth in the
preamble.
(w) "Sellers' Representatives" shall have the meaning set
forth in the preamble.
(x) "Shares" shall mean any shares of Common Stock issued
to the Sellers pursuant to the Purchase Agreement and, if applicable,
the Earnout Agreement.
(y) "Shelf Registration Statement" shall mean any
registration statement filed by the Buyer pursuant to Section 2 of this
Agreement, including the prospectus contained therein, any amendments,
and all exhibits thereto and supplements to such registration
statement, including post-effective amendments, and all material
incorporated by reference (or deemed to be incorporated by reference)
in such registration statement; provided that such registration
statement shall only be used for resales of the Registrable Securities
in brokered transactions at the market.
(z) "Stock Exchange" shall mean (i) the New York Stock
Exchange or (ii) if shares of Common Stock are not listed on the New
York Stock Exchange, another national securities exchange or automated
quotation system on which shares of Common Stock are listed or quoted.
(aa) "Subsidiary" shall mean any Person of which any
specified Person shall own directly or indirectly through a Subsidiary,
a nominee arrangement or otherwise at least a majority of the
outstanding capital stock (or other shares of beneficial interest)
entitled to vote generally or otherwise have the power to elect a
majority of the board of directors or similar governing body or the
legal power to direct the business or policies of such Person.
2. Shelf Registration Under the Securities Act.
(a) Filing of a Shelf Registration Statement. The Buyer
shall file with the SEC as promptly as practicable after the receipt of
a Registration Notice (and with respect to a Registration Notice
relating to Registrable Securities issued pursuant to the Earnout
Agreement at the election of the Sellers within thirty (30) days),
subject to the Buyer's receipt of all information from the Sellers that
is necessary to comply with applicable state and federal securities
laws, and use commercially reasonable efforts to cause to become
effective as promptly as possible thereafter, a Shelf Registration
Statement. The Buyer agrees to use its commercially reasonable efforts
to (i) cooperate with the Sellers in the disposition of the Registrable
Securities pursuant to this Agreement and (ii) subject to Section 2(b)
hereof, to keep the Shelf Registration Statement continuously effective
so long as the Sellers hold such Registrable Securities.
Notwithstanding anything herein to the contrary, the effectiveness of a
Registration Notice shall be subject to the following: (i) no
Registration Notice may be delivered prior to the date that is ninety
(90) days after the date hereof, (ii) any Registration Notice relating
to Registrable Securities issued pursuant to the Earnout Agreement at
the election
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of the Sellers may be delivered on or after the date the Sellers'
Representatives submit the Sellers Stock Percentage or Accelerated
Stock Percentage (each as defined in the Earnout Agreement), as
applicable, to the Buyer, and (iii) Registration Notices may only
request, (A) in the case of a request to file a Shelf Registration
Statement, that such Shelf Registration Statement be filed on any date
beginning no earlier than the first day of a Resale Window (as defined
below) and ending no later than the last day of a Resale Window and (B)
in the case of a request to use an existing Shelf Registration
Statement, that such Shelf Registration Statement be made available for
resales thereunder beginning no earlier than the first day of a Resale
Window and ending no later than the last day of a Resale Window. Each
Registration Notice shall specify the Registrable Securities covered
thereby, the holder thereof, and the requested action with respect to
any Shelf Registration Statement (including, if applicable, the time
period during which use of such Shelf Registration Statement is being
requested). Notwithstanding anything herein to the contrary, (i) the
Buyer shall have no obligation to have any Shelf Registration Statement
declared effective until 180 days after the date hereof and (ii) at any
time that a Seller is an employee, officer, director or consultant of
the Buyer or the Company, such Seller must comply with any internal
trading policies or similar policies of the Buyer in effect from time
to time with respect to any Offer (as defined herein) or sale or
proposed sale of Shares. It is understood by the parties that the
Sellers' Representatives may deliver more than one Registration Notice
pursuant to this Agreement.
With respect to any fiscal quarter, a "Resale Window" (y)
shall begin on the date that is one full Business Day after the earlier
of the date (A) the Buyer files a Quarterly Report on Form 10Q or
Annual Report on Form 10K in respect of its most recently completed
fiscal quarter or fiscal year, as the case may be, and (B) the Buyer
issues a press release reporting its results of operations relating to
the Buyer's most recently completed fiscal quarter or fiscal year, as
the case may be, and (z) end on the last day of such fiscal quarter.
For any period that any Seller holds any Registrable Securities, a
Shelf Registration Statement is effective and a Delay Notice (as
defined below) is not in effect, the Buyer agrees to use reasonable
commercial efforts to issue a press release relating to the Buyer's
most recently completed fiscal quarter or fiscal year, as the case may
be, as promptly as practicable after the Buyer's independent public
accountants have completed the applicable SAS 71 review related to such
period (which, in the case such period is any fiscal year, such period
shall be the fourth fiscal quarter). The Buyer agrees to use its
commercially reasonable efforts to cause its independent public
accountants to complete an applicable SAS 71 review as promptly as
practicable following the end of such applicable fiscal quarter.
(b) Delay Notices.
(i) If the Buyer determines in its reasonable
judgment that the filing or effectiveness of, or sales
pursuant to, any Shelf Registration Statement would require
the Buyer to disclose any pending or anticipated acquisition
or corporate reorganization, financing or other transaction or
development involving the Buyer or any of its Subsidiaries and
such public disclosure would be materially disadvantageous (a
"Material Development Condition") to the Buyer, the Buyer may,
at its option, notwithstanding any other provision of this
Agreement, upon
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the delivery or transmission of a written notice from the
Buyer (a "Delay Notice") to such effect to the holders of
Registrable Securities covered by such Shelf Registration
Statement (A) to delay the filing or the effectiveness of, or
suspend sales pursuant to, such Shelf Registration Statement
until the earlier of ninety (90) days after the date of the
Delay Notice or the date that the Material Development
Condition ceases to exist or (B) to the extent required by
applicable law, cause such Shelf Registration Statement to be
withdrawn. In the event a Shelf Registration Statement is
filed and subsequently suspended or withdrawn by reason of any
Material Development Condition as provided herein, the Buyer
shall either update the existing Shelf Registration Statement
as required by applicable law or cause a new Shelf
Registration Statement to be filed with the SEC not later than
the earlier of ninety (90) days after the date of the Delay
Notice or the date on which such Material Development
Condition ceases to exist and, if applicable, to use its
commercially reasonable efforts to cause such new Shelf
Registration Statement to become effective as soon as
practicable after such Material Development Condition ceases
to exist. The Buyer may only deliver one Delay Notice during
any three hundred sixty-five (365) day period.
(ii) Each Seller agrees that, upon receipt from
the Buyer of a Delay Notice, such Seller will immediately
discontinue sales of Registrable Securities pursuant to any
Shelf Registration Statement until (A) the Sellers are advised
in writing by the Buyer that the use of the prospectus
relating to the applicable Shelf Registration Statement may be
resumed and, if applicable, the Sellers receive copies of any
required supplement or amendment to such prospectus or (B) the
Sellers are advised in writing by the Buyer that a new Shelf
Registration Statement has become effective under the
Securities Act and the Sellers receive copies of any required
prospectus.
(iii) Subject to Sections 2(a) and 2(b)(i), the
Buyer will immediately notify the Sellers of the happening of
any event, as a result of which the prospectus included or to
be included in a Shelf Registration Statement includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
then existing, not misleading. The Sellers will immediately
discontinue sales of Registrable Securities pursuant to such
Shelf Registration Statement. Subject to Sections 2(a) and
2(b)(i), the Buyer will, as promptly as practicable, revise
such prospectus as may be necessary so that such prospectus
shall not include such an untrue statement of a material fact
or omit to state such a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances then existing, not misleading. The
Buyer will, as promptly as practicable, deliver copies of such
revised prospectus to the Sellers. Subject to Sections 2(a)
and 2(b)(i), following receipt of the revised prospectus, the
Sellers will be free to resume disposition of such Registrable
Securities provided that such dispositions are within the time
periods specified in a previously delivered Registration
Notice.
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(c) Expenses. All expenses incurred by the Buyer in
complying with this Section 2, including all registration and filing
fees, shall be paid by the Buyer; provided, however, that all selling
commissions, brokerage fees and expenses and transfer taxes in
connection with sales of Shares covered by a Shelf Registration
Statement shall be paid by the respective Sellers.
(d) Registration Procedures. If and whenever the Buyer is
required by the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Securities Act, the
Buyer will take the actions described below in this Section 2(d).
(i) Copies of Prospectus. The Buyer shall
promptly furnish to each Seller of Registrable Securities
pursuant to a Shelf Registration Statement such number of
copies (as reasonably requested by the Sellers'
Representatives) of such Shelf Registration Statement, each
amendment and supplement thereto, the prospectus included in
such Shelf Registration Statement and any other prospectus
filed under Rule 424 promulgated under the Securities Act
relating to such Seller's Registrable Securities.
(ii) Listing. The Buyer shall cause all
Registrable Securities covered by any Shelf Registration
Statement to be listed on the Stock Exchange.
(iii) General Compliance with Federal Securities
Laws. The Buyer shall comply with the Securities Act, the
Exchange Act and any other applicable rules and regulations of
the SEC.
(iv) Eligibility to Use Form S-3. During the
period when any Registrable Securities are outstanding the
Buyer agrees to use its commercially reasonable efforts to
maintain its eligibility to use Form S-3 (or any successor
form allowing for the incorporation of information therein by
reference) to register Shares for re-sale under the Securities
Act.
(v) Seller Information. Upon receipt of a
Registration Notice, the Buyer shall promptly notify the
Sellers' Representatives of all information the Buyer requires
from the Sellers in order to effect the registration requested
in such Registration Notice in compliance with applicable
federal and state securities laws.
3. Indemnification.
(a) Indemnification by Buyer. Upon any registration of
any of the Registrable Securities under the Securities Act pursuant to
this Agreement, to the extent permitted by law, the Buyer will
indemnify and hold harmless each Seller, its partners, directors and
officers and each other Person, if any, who controls such Seller within
the meaning of the Securities Act or the Exchange Act (each such Person
being a "Covered Person") against any losses, claims, damages or
liabilities, joint or several, to which such Covered Person may become
subject under the Securities Act, the Exchange Act, state securities
laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect
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thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Shelf
Registration Statement under which any Registrable Securities were
registered under the Securities Act, any preliminary or final
prospectus contained in any Shelf Registration Statement, or any
amendment or supplement to any Shelf Registration Statement or (ii) the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Buyer will reimburse such Covered Person for any
legal or any other expenses reasonably incurred by such Covered Person
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Buyer will not
be liable to any Covered Person in any such case (x) to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Shelf Registration
Statement or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the
Buyer, in writing, by or on behalf of such Covered Person specifically
for use in the preparation thereof or (y) in the case of a sale
directly by a Seller, such untrue statement or omission was contained
in any prospectus and corrected in an amendment or supplement thereto
provided to such Seller and thereafter such Seller failed to deliver a
copy of the amended or supplemented prospectus at or prior to the
confirmation of the sale of any Registrable Securities to the person
asserting any such loss, claim, damage or liability.
(b) Indemnification by Sellers. Upon any registration of
any of the Registrable Securities under the Securities Act pursuant to
this Agreement, then to the extent permitted by law, each Seller will
indemnify and hold harmless the Buyer, each of its directors and
officers and each Person (other than such Seller), if any, who controls
the Buyer within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities to which the Buyer,
such directors and officers, or controlling person may become subject
under the Securities Act, Exchange Act, state securities laws or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any
untrue statement of a material fact contained in any Shelf Registration
Statement under which any Registrable Securities were registered under
the Securities Act, any preliminary or final prospectus contained in
any Shelf Registration Statement, or any amendment or supplement to any
Shelf Registration Statement or (ii) the omission to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing
to the Buyer by or on behalf of such Seller, specifically for use in
connection with the preparation of such Shelf Registration Statement,
prospectus, amendment or supplement; provided, however, that the
obligations of such Seller under this Section 3 will be limited to an
amount equal to the net proceeds to such Seller (after deducting all
brokerage commissions and all other expenses paid by such Seller in
connection with any Shelf Registration Statement) from the disposition
of Registrable Securities pursuant to all Shelf Registration
Statements.
(c) Notice of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim of the type referred to in the foregoing
provisions of this Section 3, such indemnified party will, if a
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claim in respect thereof is to be made against any indemnifying party,
give written notice to each such indemnifying party of the commencement
of such action; provided, however, that the failure of any indemnified
party to give such notice will not relieve such indemnifying party of
its obligations under this Section 3, except to the extent that such
indemnifying party is materially prejudiced by such failure. In case
any such action is brought against an indemnified party, each
indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and (subject to the following
proviso) after notice from an indemnifying party to such indemnified
party of its election so to assume the defense thereof, such
indemnifying party will not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified
party; provided, however, that the indemnifying party will pay the
reasonable fees and expenses of counsel for the indemnified party if
representation of such indemnified party by counsel retained by the
indemnifying party would be, in the opinion of counsel to the
indemnifying party, inappropriate due to actual or potential conflict
of interests between the indemnified party and the indemnifying party;
provided, further, that in no event will the indemnifying party be
required to pay the fees and expenses of more than one law firm as
counsel for all indemnified parties pursuant to this sentence. If,
within 30 days after receipt of the notice, such indemnifying party has
not elected to assume the defense of the action, such indemnifying
party will be responsible for any legal or other expenses reasonably
incurred by such indemnified party in connection with the defense of
the action, suit, investigation, inquiry or proceeding. An indemnifying
party may, in the defense of any such claim or litigation, consent to
the entry of a judgment or enter into a settlement without the consent
of the indemnified party only if such judgment or settlement contains a
general release of the indemnified party in respect of such claims or
litigation and involves only a payment of monetary damages.
(d) Contribution. If the indemnification provided for in
Sections 3(a) or 3(b) hereof is unavailable to a party that would have
been an indemnified party under any such Section in respect of any
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each party that would have
been an indemnifying party thereunder will, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such indemnified party on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof). The relative fault will 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 such indemnifying
party or such indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties agree that it would not be just
and equitable if contribution pursuant to this Section 3(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the preceding sentence. The amount paid or payable by a contributing
party as a result
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of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to in this Section 3(d) will
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
4. Buyer's Right of First Refusal.
(a) If at any time a Seller desires to sell all or any
Shares pursuant to a Shelf Registration Statement or otherwise, such
Seller shall submit a written offer (the "Offer") to sell such Shares
(the "Offered Shares") to the Buyer at the Right of Refusal Oxford
Trading Price. The Offer shall disclose the number of Shares proposed
to be sold and the total number of Shares owned by such Seller. The
Offer shall further state that the Buyer may acquire, in accordance
with this Section 4(a), each Offered Share for the Right of Refusal
Oxford Trading Price. Sellers shall only be permitted to make an Offer
in respect of Shares proposed to be sold pursuant to a Shelf
Registration Statement during a Resale Window.
(b) If the Buyer desires to purchase any of the Offered
Shares, the Buyer must, within one Business Day (the "Buyer Refusal
Period") following receipt of the Offer, give written notice ("Buyer
Notice") to such Seller of its election to purchase all or a portion of
the Offered Shares. Failure by the Buyer to exercise its right of first
refusal within the Buyer Refusal Period shall be deemed a waiver of
such right with respect to that particular Offer only.
(c) Sales of the Offered Shares to be sold to the Buyer
pursuant to this Section 4 shall be made at the offices of the Buyer on
the third Business Day following the date the Offer was made (the
"Right of Refusal Sale Date"). Such sales shall be effected by such
Seller delivering to the Buyer a certificate or certificates evidencing
the Offered Shares to be purchased by the Buyer, duly endorsed for
transfer to the Buyer, against payment to such Seller by the Buyer of
the Right of Refusal Oxford Trading Price multiplied by the number of
Offered Shares to be purchased by the Buyer. The number of Offered
Shares to be purchased by the Buyer and the Right of Refusal Oxford
Trading Price shall be adjusted as necessary to reflect any forward or
reverse stock split, stock dividend, recapitalization or other similar
change with respect to shares of Common Stock that occurs after the
Right of Refusal Oxford Trading Price is determined and prior to the
applicable Right of Refusal Sale Date.
(d) If the Buyer does not purchase all of the Offered
Shares, the Offered Shares not so purchased may be sold by such Seller
at any time within ninety (90) days after the date the Offer was made.
Any Offered Shares not sold within such 90-day period shall once again
be subject to the requirements of a prior offer to the Buyer pursuant
to this Section 4.
(e) In the event the Buyer has delivered a Buyer Notice
in accordance with this Section 4 and subsequently breaches its
obligation to purchase the Offered Shares
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described in such Buyer Notice, this Section 4 shall cease to be in
effect and the Sellers shall not be required to further comply with the
provisions of this Section 4.
5. Information Requirements. The Buyer covenants that, if at any
time any Seller holds Registrable Securities and the Buyer is not subject to the
reporting requirements of the Exchange Act, it will make and keep public
information available, as those terms are understood and defined in Rule 144
under the Securities Act and cooperate with such Seller and take such further
reasonable action as such Seller may reasonably request in writing, all to the
extent required from time to time to enable such Seller to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions.
6. Miscellaneous.
(a) Sellers' Representatives. The appointment and removal
of the Sellers' Representatives, as well as the authority of the
Company and the Buyer to rely on the consent and approval of the
Sellers' Representatives, shall be governed by Section 7.7 of the
Purchase Agreement. Any action taken by the Sellers' Representatives
with respect to this Agreement shall bind and otherwise affect any
rights and obligations of each Seller hereunder.
(b) Entire Agreement; Waivers. This Agreement constitutes
the entire agreement among the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written,
of the parties with respect to such subject matter. No waiver of any
provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar), shall
constitute a continuing waiver unless otherwise expressly provided nor
shall be effective unless in writing and executed (i) in the case of a
waiver by the Buyer, by the Buyer, and (ii) in the case of a waiver by
the Sellers, by the Sellers' Representatives.
(c) Amendment or Modification. The parties hereto may
amend or modify this Agreement only by a written instrument executed by
the Buyer and the Sellers' Representatives, and any such amendment or
modification shall be enforceable against the Buyer and all the
Sellers.
(d) Severability. In the event that any provision hereof
would, under applicable law, be invalid or unenforceable in any
respect, such provision shall (to the extent permitted under applicable
law) be construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law. The provisions hereof are severable, and in the event
any provision hereof should be held invalid or unenforceable in any
respect, it shall not invalidate, render unenforceable or otherwise
affect any other provision hereof.
(e) Successors and Assigns. All of the terms and
provisions of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted
transferees and assigns (each of which transferees and assigns
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shall be deemed to be a party hereto for all purposes hereof);
provided, however, that (i) no transfer or assignment by any party
hereto shall be permitted without the prior written consent of the
other parties hereto and any such attempted transfer or assignment
without consent shall be null and void, provided, however, that Buyer
may assign this Agreement to any purchaser of all or substantially all
capital stock or assets of the Company and (ii) no transfer or
assignment by any party hereto shall relieve such party of any of its
obligations hereunder.
(f) Notices. Any notices or other communications required
or permitted hereunder shall be deemed to have been properly given and
delivered if in writing by such party or its legal representative and
delivered personally or sent by nationally recognized overnight courier
service guaranteeing overnight delivery, or registered or certified
mail, postage prepaid, addressed as follows:
If to any Seller or the Sellers'
Representatives: c/o Viewpoint International, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: S. Xxxxxxx Xxxxxxxx
and x/x Xxxxxxxx Xxxx & Xxxxxx LLC
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
With a copy to: Xxxxxx & Bird LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, III, Esq.
and Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Buyer: Oxford Industries, Inc.
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, III, Esq.
With a copy to: King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Unless otherwise specified herein, such notices or other communications
shall be deemed given (a) on the date delivered, if delivered personally, (b)
one Business Day after being sent by a nationally recognized overnight courier
guaranteeing overnight delivery, and (c) five (5)
- 11 -
Business Days after being sent, if sent by registered or certified mail. Each of
the parties hereto shall be entitled to specify a different address by
delivering notice as aforesaid to each of the other parties hereto.
(g) Headings. Section and subsection headings are not to
be considered part of this Agreement, are included solely for
convenience, are not intended to be full or accurate descriptions of
the content thereof and shall not affect the construction hereof.
(h) Third-Party Beneficiaries. Except as otherwise set
forth herein, nothing in this Agreement is intended or shall be
construed to entitle any Person, other than the parties hereto, their
respective transferees and assigns permitted hereby, to any claim,
cause of action, remedy or right of any kind.
(i) Counterparts. This Agreement and any claims related
to the subject matter hereof may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
(j) Governing Law. This Agreement and any claims related
to the subject matter hereof shall be governed by and construed in
accordance with the domestic substantive laws of the State of New York,
without giving effect to any choice or conflict of law provision or
rule that would cause the application of the laws of any other
jurisdiction.
(k) Consent to Jurisdiction. Each party to this
Agreement, by its execution hereof, (i) hereby irrevocably submits, and
agrees to cause each of its Subsidiaries to submit, to the exclusive
jurisdiction of the state courts of the State of New York located in
New York County or the United States District Court for the Southern
District of New York for the purpose of any action, claim, cause of
action or suit (in contract, tort or otherwise), inquiry proceeding or
investigation arising out of or based upon this Agreement or relating
to the subject matter hereof, (ii) hereby waives, and agrees to cause
each of its Subsidiaries to waive, to the extent not prohibited by
applicable law, and agrees not to assert, and agrees not to allow any
of its Subsidiaries to assert, by way of motion, as a defense or
otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that any
such proceeding brought in one of the above-named courts is improper,
or that this Agreement or the subject matter hereof may not be enforced
in or by such court and (iii) hereby agrees not to commence or to
permit any of its Subsidiaries to commence any action, claim, cause of
action or suit (in contract, tort or otherwise), inquiry, proceeding or
investigation arising out of or based upon this Agreement or relating
to the subject matter hereof other than before one of the above-named
courts nor to make any motion or take any other action seeking or
intending to cause the transfer or removal of any such action, claim,
cause of action or suit (in contract, tort or otherwise), inquiry,
proceeding or investigation to any court other than one of the
above-named court whether on the grounds of inconvenient forum or
otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by New York law, and agrees that
service of process by registered
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or certified mail, return receipt requested, at its address specified
pursuant to Section 6(f) is reasonably calculated to give actual
notice.
(l) WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO
HEREBY WAIVES, AND AGREES TO CAUSE EACH OF ITS SUBSIDIARIES TO WAIVE,
AND COVENANTS THAT NEITHER IT NOR ANY OF ITS SUBSIDIARIES WILL ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, ACTION, CLAIM, CAUSE OF
ACTION, SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING. THE BUYER ACKNOWLEDGES THAT
IT HAS BEEN INFORMED BY THE SELLERS THAT THIS SECTION 6(L) CONSTITUTES
A MATERIAL INDUCEMENT UPON WHICH THE SELLERS ARE RELYING AND WILL RELY
IN ENTERING INTO THIS AGREEMENT AND ANY OTHER AGREEMENTS RELATING
HERETO OR CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 6(L) WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT
TO TRIAL BY JURY.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed, as of the date first above
written by their respective officers thereunto duly authorized.
THE SELLERS: SKM-TB, LLC
By: SKM EQUITY FUND III, L.P.
By: SKM PARTNERS, L.L.C.
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
A duly authorized signatory
WHOLE DUTY INVESTMENT, LTD.
By: /s/ CT Xxxxx
-------------------------------------
Name: CT Xxxxx
A duly authorized signatory
/s/ S. Xxxxxxx Xxxxxxxx
-----------------------------------------
S. Xxxxxxx Xxxxxxxx
XXXXXXXX FAMILY STOCK TRUST u/a/d
MAY 1, 2001
By: /s/ Xxxxxxx X. Xxxxxx, III
-------------------------------------
Name: Xxxxxxx X. Xxxxxx, III
Title: Trustee
/s/ Xxxxx Xxxxx Gasperina
-----------------------------------------
Xxxxx Xxxxx Xxxxxxxxx
XXXXXX BEACH BLUES, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
SELLERS' REPRESENTATIVES: /s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx
/s/ S. Xxxxxxx Xxxxxxxx
-----------------------------------------
S. Xxxxxxx Xxxxxxxx
THE BUYER: OXFORD INDUSTRIES, INC.
By: /s/ X. Xxxxx Xxxxxx
-------------------------------------
Name: X. Xxxxx Xxxxxx
Title: Chairman, President & Chief
Executive Officer
SCHEDULE 1
SELLERS
1. SKM-TB, LLC
2. Whole Duty Investments, LTD.
3. S. Xxxxxxx Xxxxxxxx
4. Xxxxxxxx Family Stock Trust u/a/d May 1, 2001
5. Xxxxx Xxxxx Gasperina
6. Xxxxxx Beach Blues, Inc.
