SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AMENDMENT NO. 3
MARKETING SPECIALISTS CORPORATION f/k/a
MERKERT AMERICAN CORPORATION
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(Name of Issuer)
Common Stock,
Par Value $.01 Per Share
-----------------------------------------------------------
(Title of Class and Securities)
590080107
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(CUSIP Number of Class of Securities)
Nick G. Bouras
MS Acquisition Ltd.
17855 North Dallas Parkway
Suite 200
Dallas, Texas 75287
(972)860-7520
Copy to:
Eileen T. Nugent, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
-------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 30, 2000
-------------------------------------------------------------
(Date of Event Which Requires
Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Statement
because of Rule 13d-1(b)(3) or (4), check the following: ( )
Check the following box if a fee is being paid with this Statement: ( )
SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
MS Acquisition Ltd.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
WC
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
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(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
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(14) TYPE OF REPORTING PERSON
PN
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
MSSC Acquisition Corporation
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
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(14) TYPE OF REPORTING PERSON
CO
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Richmont Capital Partners I, L.P.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
PN
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
J.R. Investments Corp.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
John P. Rochon
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
-----------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
-----------------------------------------------------------------
(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Nick G. Bouras
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
-----------------------------------------------------------------
(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
-----------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
-----------------------------------------------------------------
(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
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SCHEDULE 13D
CUSIP No. 590080107
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(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Timothy M. Byrd
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS
OO
-----------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
-----------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
-----------------------------------------------------------------
(7) SOLE VOTING POWER
9,600,617
NUMBER OF SHARES ----------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,485,972
REPORTING ----------------------------------
PERSON WITH (9) SOLE DISPOSITIVE POWER
9,600,617
----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,086,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
67.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
-----------------------------------------------------------------
This Amendment No. 3 to Schedule 13D (this "Amendment") is
being filed pursuant to Rule 13d-2 of the Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Act") by MS Acquisition
Ltd., a Texas limited partnership ("MS Acquisition"), MSSC Acquisition
Corporation, a Delaware corporation ("MSSC"), Richmont Capital Partners I,
L.P., a Delaware limited partnership ("RCPI"), J.R. Investments Corp., a
Delaware corporation ("JRIC"), John P. Rochon, a citizen of the State of
Texas ("Rochon"), Nick G. Bouras, a citizen of the State of Texas
("Bouras"), and Timothy M. Byrd, a citizen of the State of Texas ("Byrd"),
with respect to the common stock, par value $.01 per share (the "Common
Stock"), of Marketing Specialists Corporation, formerly known as Merkert
American Corporation, a Delaware corporation (the "Company"). This
Amendment amends the Schedule 13D filed by MS Acquisition, MSSC, RCPI, JRIC
and Richmont Marketing Specialists Inc. on May 7, 1999, as amended and
restated by Amendment No. 1 thereto filed on August 18, 1999 and as further
amended by Amendment No. 2 thereto filed on January 7, 2000.
The Schedule 13D previously filed is hereby amended by the addition
of the following information:
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
Acquisitions of Beneficial Ownership
The Stock Purchase Agreement
Pursuant to the terms of that certain Common Stock Purchase
Agreement, dated as of March 30, 2000, by and among MS Acquisition and the
Company (the "Stock Purchase Agreement"), MS Acquisition purchased
4,000,000 shares of Common Stock of the Company at a price of $2.50 per
share, for an aggregate purchase price of $10,000,000.
The funds used by MS Acquisition in its acquisition of shares were
drawn from the working capital of MS Acquisition.
The Item 2 Persons disclaim beneficial ownership of any shares of
Common Stock beneficially owned by MS Acquisition, other than (i) the
4,000,000 shares acquired as a result of the Stock Purchase Agreement and
(ii) the 5,600,617 shares of Common Stock directly owned by MS Acquisition
before the execution of Stock Purchase Agreement (as previously reported on
Schedule 13D).
Dispositions of Beneficial Ownership
As disclosed on Schedule 13D, dated August 18, 1999, MS Acquisition
is party to a voting agreement, dated as of August 18, 1999 (the
"Post-Merger Voting Agreement"), by and among MS Acquisition, Ronald D.
Pedersen, Bruce A. Butler, Gary R. Guffey, Jeffrey A. Watt, JLM Management
Company, LLC ("JLM") and Monroe & Company, LLC ("Monroe & Company").
Pursuant to the Post-Merger Voting Agreement, the parties to the
Post-Merger Voting Agreement agreed to vote their respective owned shares
of Common Stock in favor of five nominees to the board of directors of the
Company that are designated in writing by MS Acquisition, provided that
such nominees are reasonably acceptable to JLM and Monroe & Company.
As reported on Schedule 13D, dated October 14, 1999, filed by James
L. Monroe, JLM and Monroe & Company disposed of an aggregate of 40,000
shares of Common Stock in September, 1999, thereby reducing the number of
shares bound by the Voting Agreement by 40,000 shares. Accordingly, the
number of shares of Common Stock with respect to which the Item 2 Persons
possess shared voting power decreased by 40,000.
Other than as set forth in the Post-Merger Voting Agreement and
described above, the Item 2 Persons possess no rights or powers to vote,
direct the voting of, dispose or direct the disposition of, the 3,495,972
shares that remain subject to the Post-Merger Voting Agreement. The Item 2
Persons disclaim membership in any group with respect to the Post-Merger
Voting Agreement. The Item 2 Persons disclaim beneficial ownership of any
shares of Common Stock subject to the Post-Merger Voting Agreement, except
for the shares owned directly by MS Acquisition.
Item 4. Purpose of Transactions.
-----------------------
The Stock Purchase Agreement
The Stock Purchase Agreement was entered into between the Company and
MS Acquisition in order to provide an additional source of capital for the
Company's ongoing operations, and to enhance the Company's short-term and
long-term liquidity.
Pursuant to the Stock Purchase Agreement, MS Acquisition agreed to
acquire directly from the Company an additional 4,000,000 shares of Common
Stock at a price of $2.50 per share, for an aggregate purchase price of
$10,000,000.
The Item 2 Persons may buy or sell additional shares of Common Stock
in the open market on such terms and at such times as the Item 2 Persons
consider desirable. Any decision by the Item 2 Persons to increase,
decrease or dispose of their position in the Company would be based upon
factors, including but not limited to, the business of the Company, the
price of the shares of Common Stock, the terms and conditions of the
transaction and prevailing market conditions.
Except as set forth above or as previously disclosed on Schedule 13D,
the Item 2 Persons have no present plans or proposals that relate to or
would result in any of the actions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D.
Item 5. Interest in the Securities of the Issuer.
----------------------------------------
(a)
MS Acquisition
The aggregate number of shares of the Common Stock which MS
Acquisition may be deemed to beneficially own under Rule 13d-3 of the Act
is 13,086,589, which constitutes approximately 67.3% of the 19,455,135
shares of such Common Stock outstanding as of March 30, 2000.
All Other Item 2 Persons
Because of their direct or indirect ownership interests in, or
control of, MS Acquisition, all other Item 2 Persons may be deemed to
beneficially own under Rule 13d-3 of the Act 13,086,589 shares of Common
Stock, which constitutes approximately 67.3% of the 19,455,135 shares of
such Common Stock outstanding as of March 30, 2000.
(b)
MS Acquisition
MS Acquisition possesses the sole power to vote or direct the vote
of, and the sole power to dispose of or direct the disposition of,
9,600,617 shares of Common Stock, which constitutes approximately 49.3% of
the 19,455,135 shares of such Common Stock outstanding as of March 30,
2000.
MS Acquisition possesses the shared power to vote or direct the vote
of 3,485,972 shares of Common Stock, which constitutes approximately 17.9%
of the 19,455,135 shares of such Common Stock outstanding as of March 30,
2000.
All Other Item 2 Persons
Because of their direct or indirect ownership interests in, or
control of, MS Acquisition, all other Item 2 Persons possess the sole power
to vote or direct the vote of, and the sole power to dispose of or direct
the disposition of, 9,600,617 shares of Common Stock, which constitutes
approximately 49.3% of the 19,455,135 shares of such Common Stock
outstanding as of March 30, 2000.
Because of their direct or indirect ownership interests in, or
control of, MS Acquisition, all other Item 2 Persons possess the shared
power to vote or direct the vote of 3,485,972 shares of Common Stock, which
constitutes approximately 17.9% of the 19,455,135 shares of such Common
Stock outstanding as of March 30, 2000.
However, all such Item 2 Persons (including MS Acquisition) disclaim
beneficial ownership of the 3,485,972 shares of Common Stock which are
subject to the Post-Merger Voting Agreement (as previously reported and
described in Amendment No. 2 of Schedule 13D).
Other than with respect to the rights created under the Post-Merger
Voting Agreement, the Item 2 Persons possess no powers, rights or
privileges with respect to such 3,485,972 shares of Common Stock. All other
powers, rights and privileges with respect to such shares of Common Stock
(including the right to vote on all matters unrelated to the election of
directors and the right to receive and the power to direct the receipt of
dividends from, and the proceeds from the sale of, such securities) remain
with the record owners of such shares of Common Stock.
(c) As described in Items 3 and 4 of this Amendment, MS Acquisition entered
into the Stock Purchase Agreement with the Company on March 30, 2000.
Pursuant to the Stock Purchase Agreement, MS Acquisition purchased
4,000,000 shares of Common Stock at a price of $2.50 per share. This
transaction was consummated within the last sixty (60) days.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
--------------------------------------------------------
As previously disclosed on Schedule 13D, MS Acquisition is a party to
that certain Registration Rights Agreement, dated as of August 18, 1999
(the "Registration Rights Agreement"), by and among the Company and MS
Acquisition, Ronald D. Pedersen, Bruce A. Butler, Gary R. Guffey and
Jeffrey A. Watt (collectively, the "Former RMSI Shareholders"). Under the
terms of the Registration Rights Agreement, MS Acquisition and the other
Former RMSI Shareholders are granted certain demand and piggyback
registration rights in respect of the Common Stock of the Company held by
such parties. The Common Stock purchased by MS Acquisition pursuant to the
Stock Purchase Agreement is covered by the terms of the Registration Rights
Agreement.
After 180 days following the date of the Registration Rights
Agreement, one or more of the holders of at least 40% of the Common Stock
received by the Former RMSI Shareholders in the Merger (as previously
described in this Schedule 13D) may require the Company to file a
registration statement covering the resale of the shares of such Common
Stock on up to six occasions. The cost of these registrations will be borne
by the Company.
Pursuant to a Stockholders Agreement dated as of March 30, 2000 among
the Company, First Union Investors, Inc., MS Acquisition and RCPI, certain
"tag-along" rights were granted by MS Acquisition to holders of Purchaser
Shares (as defined in the Stockholders Agreement). Pursuant to the
Stockholders Agreement, and subject to certain limitations, MS Acquisition
may not sell its unregistered shares of Common Stock in a Covered
Transaction (as defined in the Stockholders Agreement) unless each holder
of Purchaser Shares has the right to sell a proportionate amount of its
Purchaser Shares on the same terms as MS Acquisition in such transaction.
Sales of Common Stock by MS Acquisition in a registered offering or in an
open market sale pursuant to Rule 144 of the Securities Act of 1933 are
exempt from the tag- along obligations created by the Stockholders
Agreement.
Item 7. Material Filed as Exhibits.
--------------------------
Exhibit I -- Joint Filing Agreement among RMSI, MS Acquisition, MSSC,
RCPI and JRIC.
Exhibit II -- Voting Agreement, dated as of April 28, 1999, between
RMSI, Monroe & Company II, LLC, Joseph T. Casey, Glenn F.
Gillam, Douglas H. Holstein, Gerald R. Leonard, Sidney D.
Rogers, Jr. and Thomas R. Studer.
Exhibit III -- Agreement and Plan of Merger, dated as of April 28, 1999,
by and among the Company, RMSI, MS Acquisition, Ronald D.
Pedersen, Bruce A. Butler, Gary R. Guffey and Jeffrey A.
Watt.
Exhibit IV -- Form of Certificate of Merger and Exhibit A to Certificate
of Merger.
Exhibit V -- Post-Merger Voting Agreement, by and among MS Acquisition,
Ronald D. Pedersen, Bruce A. Butler, Gary R. Guffey,
Jeffrey A. Watt, Monroe & Company, LLC and JLM Management
Company, LLC.
Exhibit VI -- Registration Rights Agreement, dated as of August 18,
1999, by and among Merkert American Corporation, MS
Acquisition Limited, Ronald D. Pedersen, Bruce A. Butler,
Gary R. Guffey and Jeffrey A. Watt.
Exhibit VII -- Joint Filing Agreement among MS Acquisition, MSSC, RCPI,
JRIC, Rochon, Bouras and Byrd.
Exhibit VIII -- Common Stock Purchase Agreement, dated as of January 7,
2000, by and between Marketing Specialists Corporation
and MS Acquisition Limited.
Exhibit IX -- Common Stock Purchase Agreement, dated as of March 30,
2000, by and between Marketing Specialists Corporation
and MS Acquisition Limited.*
Exhibit X -- Stockholders Agreement, dated as of March 30, 2000, by
and among Marketing Specialists Corporation, First Union
Investors, Inc. and MS Acquisition Limited.*
* Filed with this Amendment.
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is
true, complete and correct.
Dated: April 3, 2000 MS ACQUISITION LTD.
By: MSSC Acquisition Corporation,
General Partner
By: /s/ Nick G. Bouras
---------------------------
Name: Nick G. Bouras
Title: Vice President
EXHIBIT INDEX
Exhibit I - Joint Filing Agreement among RMSI, MS Acquisition, MSSC,
RCPI and JRIC
Exhibit II - Voting Agreement, dated as of April 28, 1999, between
RMSI, Monroe & Company II, LLC, Joseph T. Casey, Glenn F.
Gillam, Douglas H. Holstein, Gerald R. Leonard, Sidney D.
Rogers, Jr. and Thomas R. Studer
Exhibit III - Agreement and Plan of Merger, dated as of April 28, 1999,
by and among the Company, RMSI, MS Acquisition, Ronald D.
Pedersen, Bruce A. Butler, Gary R. Guffey and Jeffrey A.
Watt
Exhibit IV - Form of Certificate of Merger and Exhibit A to Certificate
of Merger
Exhibit V - Post-Merger Voting Agreement, by and among MS Acquisition,
Ronald D. Pedersen, Bruce A. Butler, Gary R. Guffey,
Jeffrey A. Watt, Monroe & Company, LLC and JLM Management
Company, LLC
Exhibit VI - Registration Rights Agreement, dated as of August 18,
1999, by and among Merkert American Corporation, MS
Acquisition Limited, Ronald D. Pedersen, Bruce A. Butler,
Gary R. Guffey and Jeffrey A. Watt.
Exhibit VII - Joint Filing Agreement among MS Acquisition, MSSC, RCPI,
JRIC, Rochon, Bouras and Byrd.
Exhibit VIII - Common Stock Purchase Agreement, dated as of January 7,
2000, by and between Marketing Specialists Corporation and
MS Acquisition Limited.
Exhibit IX - Common Stock Purchase Agreement, dated as of March 30,
2000, by and between Marketing Specialists Corporation and
MS Acquisition Limited.*
Exhibit X - Stockholders Agreement, dated as of March 30, 2000, by and
among Marketing Specialists Corporation, First Union
Investors, Inc. and MS Acquisition Limited.*
* Filed with this Amendment
EXHIBIT IX
- ------------------------------------------------------------------------------
MARKETING SPECIALISTS CORPORATION
COMMON STOCK PURCHASE
AGREEMENT
DATED AS OF MARCH 30, 2000
4,000,000 SHARES OF COMMON STOCK
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF COMMON STOCK.............................1
1.01. Authorization of Common Stock.....................1
1.02. Purchase Price and Closing........................1
1.03. Use of Proceeds...................................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................2
2.01. Organization, Standing and Power..................2
2.02. Authority.........................................2
2.03. Enforceability....................................2
2.04. Valid Issuance....................................2
2.05. Capitalization....................................3
2.06. No Violation......................................3
2.07. Reports and Financial Statements..................3
2.08. Litigation........................................3
2.09. Registration Rights Agreement.....................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...............4
3.01. Authorization.....................................4
3.02. Purchase for Own Account..........................4
3.03. Disclosure of Information.........................4
3.04. Investment Experience.............................4
3.05. Accredited Investor Status........................4
3.06. Restricted Securities.............................5
3.07. Governmental Consents.............................5
3.08. Further Limitations on Disposition................5
3.09. Legends...........................................5
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS...........6
4.01. Representations and Warranties....................6
4.02. Refinancing of Senior Credit Facility.............6
4.03. Third Supplemental Indenture......................6
5. DEFINITIONS...................................................6
6. INDEMNIFICATION...............................................8
6.01. General Indemnity.................................8
6.02. Indemnification Procedure.........................8
6.03. Indemnification Limitations.......................9
7. MISCELLANEOUS.................................................9
7.01. No Waiver; Cumulative Remedies....................9
7.02. Amendments, Waivers and Consents..................9
7.03. Notices...........................................9
7.04. Binding Effect; Assignment.......................10
7.05. Survival of Representations and Warranties.......11
7.06. Severability.....................................11
7.07. Governing Law....................................11
7.08. Headings.........................................11
7.09. Counterparts.....................................11
7.10. Closing Condition Waivers........................11
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated this
30th day of March, 2000, by and between Marketing Specialists Corporation,
a Delaware corporation (the "Company"), and MS Acquisition Limited, a Texas
limited partnership (the "Purchaser").
PRELIMINARY STATEMENTS
A. The Purchaser is a stockholder of the Company and desires to
purchase additional shares of the Company's common stock, $0.01 par value
per share (the "Common Stock"), directly from the Company, subject to the
terms and conditions set forth herein.
B. The Company desires to sell shares of Common Stock to the
Purchaser, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
STATEMENT OF AGREEMENT
1. PURCHASE AND SALE OF COMMON STOCK
1.1. Authorization of Common Stock. The Company has authorized the
issuance and sale of 4,000,000 shares (the "Shares") of its authorized but
unissued shares of Common Stock, having the rights set forth in the
Certificate of Incorporation of the Company.
1.2. Purchase Price and Closing. The Company agrees to issue and sell
to the Purchaser, and in consideration of, and in express reliance upon,
the representations, warranties, terms and conditions contained in, this
Agreement, the Purchaser agrees to purchase the Shares at a purchase price
of $2.50 per share, for an aggregate purchase price of $10,000,000. Subject
to the terms and conditions contained herein, the closing of the purchase
and sale of the Shares to be acquired by the Purchaser from the Company
under this Agreement (the "Closing") shall take place at 9:00 a.m. (Dallas,
Texas time) on the first business day following the day on which all the
conditions contained in Section 4 of this Agreement shall have been
satisfied or waived, or at such other time and date as the Purchaser and
the Company may agree (the "Closing Date"), at the offices of Akin, Gump,
Strauss, Hauer & Feld, L.L.P., 1700 Pacific Avenue, Suite 4100, Dallas,
Texas 75201, or such other location as the parties mutually agree. At the
Closing, the Company will deliver to the Purchaser a certificate of the
Secretary or an Assistant Secretary of the Company, dated the Closing Date,
(a) attesting to corporate action taken by the Company, including
resolutions of the Board of Directors authorizing (i) the execution,
delivery and performance by the Company of this Agreement and the
Registration Rights Agreement and (ii) the issuance of the Shares, and (b)
verifying that the Certificate of Incorporation of the Company and the
Bylaws of the Company currently on file with the Commission are true,
correct and complete as of the Closing Date. As soon as practicable after
the closing, but in any event not later than seven business days, the
Company will deliver to the Purchaser certificates evidencing the Shares to
be purchased by the Purchaser hereunder. At the Closing, Purchaser shall
deliver $10,000,000 to the Company by wire transfer of immediately
available funds.
1.3. Use of Proceeds. The Company shall use the cash proceeds from
the sale of the Shares for general corporate purposes including, without
limitation, working capital and the financing of acquisitions.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as
follows:
2.1. Organization, Standing and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has the requisite power and authority to own or
lease its properties and to carry on its business as presently conducted.
There is no pending or, to the Company's knowledge, threatened proceeding
for the dissolution, liquidation, insolvency or rehabilitation of the
Company. The Company's operating subsidiaries are entities duly organized,
validly existing and in good standing under the laws of each such
subsidiary's state of organization, and each has the requisite power and
authority to own or lease its properties and to carry on its business as
presently conducted. There is no pending or, to the Company's knowledge,
threatened proceeding for the dissolution, liquidation, insolvency or
rehabilitation of any of the Company's operating subsidiaries.
2.2. Authority. The Company has all requisite corporate power and
authority to enter into this Agreement and the Registration Rights
Agreement, to issue and sell the Shares and to carry out its obligations
hereunder and under the Registration Rights Agreement.
2.3. Enforceability. This Agreement and the Registration Rights
Agreement have been duly executed and delivered by the Company and each
constitutes its legal, valid and binding obligation enforceable against it
in accordance with its terms, except as the same may be limited by the
terms of this Agreement or by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in
equity.
2.4. Valid Issuance. Upon consummation of the transactions
contemplated hereby and the issuance and delivery of certificates
representing the Shares to the Purchaser, the Shares will be validly
issued, fully paid, non-assessable and free of preemptive rights or similar
rights of stockholders of the Company and free and clear of any liens or
other encumbrance.
2.5. Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 50,000,000 shares of Common Stock,
4,000,000 shares of Restricted Common Stock and 1,000,000 shares of
preferred stock. As of March 16, 2000, (i) 15,455,135 shares of Common
Stock and 335,700 shares of Restricted Common Stock were validly issued and
outstanding, fully paid and non-assessable, and (ii) no shares of preferred
stock were issued or outstanding.
2.6. No Violation. The execution and delivery of this Agreement and
the Registration Rights Agreement by the Company, the performance by the
Company of its obligations hereunder and the consummation by the Company of
the transactions contemplated by this Agreement and the Registration Rights
Agreement will not (a) contravene any provision of the Certificate of
Incorporation or By-laws of the Company, (b) violate or conflict with any
material law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment, ruling or order of any governmental authority or of
any arbitration award which is either applicable to, binding upon, or
enforceable against the Company, (c) conflict with, result in any breach
of, or constitute a default under, or give rise to a right to terminate,
amend, modify, abandon or accelerate, any material agreement which is
applicable to, binding upon or enforceable against the Company, (d) result
in or require the creation or imposition of any lien or other encumbrance
upon or with respect to any of the material property or assets of the
Company, (e) give to any individual or entity a right or claim against the
Company, which would have a Material Adverse Effect on the Company; or (f)
require the consent, approval, authorization or permit of, or filing with
or notification to, any governmental authority, any court or tribunal or
any other person, except (i) consent under the Amended and Restated Credit
Facility dated August 18, 1999, as amended, among the Company, the lenders
set forth on Schedule 1 thereto and First Union National Bank as agent for
the lenders, which consent has been obtained, (ii) pursuant to the Exchange
Act and the Securities Act and applicable inclusion requirements of any
stock exchange on which the Common Stock is listed, (iii) filings required
under the securities or blue sky laws of the various states or (iv) filings
required under the HSR Act, if any (collectively, "Required Consents").
2.7. Reports and Financial Statements. From January 1, 1997 to the
date hereof, except where failure to have done so did not and would not
have a Material Adverse Effect on the Company, the Company (including any
predecessor entities) has filed all reports, registrations and statements,
together with any required amendments thereto, that it was required to file
with the Commission, including, but not limited to, Forms 10-K, Forms 10-Q,
Forms 8-K and proxy statements (collectively, the "Company Reports"),
copies of all of which have been delivered to the Purchaser. As of their
respective dates (but taking into account any amendments filed prior to the
date of this Agreement), the Company Reports complied in all material
respects with all the rules and regulations promulgated by the Commission
and did 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 the light of the circumstances under which they
were made, not misleading.
2.8. Litigation. There is no action, suit or other legal or
administrative proceeding or governmental investigation pending, or, to the
knowledge of the Company, threatened, anticipated or contemplated against,
by or affecting the Company which questions the validity or enforceability
of this Agreement or the Registration Rights Agreement or the transactions
contemplated hereby or thereby.
2.9. Registration Rights Agreement. The Company acknowledges and
agrees that the Shares will be eligible for registration pursuant to the
terms of the Registration Rights Agreement by and among the Purchaser, the
Company and certain other parties thereto.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company as
follows:
3.1. Authorization. This Agreement constitutes the Purchaser's valid
and legally binding obligation, enforceable in accordance with its terms
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally, and (b) the
effect of rules of law governing the availability of equitable remedies.
The Purchaser represents that the Purchaser has full power and authority to
enter into this Agreement.
3.2. Purchase for Own Account. The Shares to be purchased by the
Purchaser hereunder shall be acquired for investment for the Purchaser's
own account, not as a nominee or agent, and not with a view to the public
resale or distribution thereof, and the Purchaser has no present intention
of selling, granting any participation in, or otherwise distributing the
same. The Purchaser represents that the Purchaser has not been formed for
the specific purpose of acquiring the Shares.
3.3. Disclosure of Information. The Purchaser has received or has had
full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Shares to be
purchased under this Agreement. The Purchaser further has had an
opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Shares and to obtain
additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to the Purchaser or to which
the Purchaser had access.
3.4. Investment Experience. The Purchaser understands that the
purchase of the Shares involves substantial risk. The Purchaser
acknowledges that the Purchaser is able to fend for itself, can bear the
economic risk of the Purchaser's investment in the Shares and has such
knowledge and experience in financial or business matters that the
Purchaser is capable of evaluating the merits and risks of this investment
in the Shares and protecting its own interests in connection with this
investment.
3.5. Accredited Investor Status. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the
Securities Act.
3.6. Restricted Securities. The Purchaser understands that the Shares
are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under the Securities Act and
applicable regulations thereunder such securities may be resold without
registration under the Securities Act only in certain limited
circumstances. Further, the Purchaser represents that the Purchaser is
familiar with Rule 144 of the Commission, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities
Act. The Purchaser understands that the Company is under no obligation to
register any of the securities sold hereunder except as provided in the
Registration Rights Agreement.
3.7. Governmental Consents. No filings are required to be made, or
consents to be obtained, from any governmental authority to consummate the
transactions contemplated hereby, including the filing of any notification
required under the HSR Act.
3.8. Further Limitations on Disposition. Without in any way limiting
the representations set forth above, the Purchaser further agrees not to
make any disposition of all or any portion of the Shares unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) the Purchaser shall have furnished the Company at the
expense of the Purchaser or its transferee, with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition
will not require registration of such securities under the Securities
Act or is in compliance with Rule 144 of the Securities Act.
Notwithstanding the provisions of subparagraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required for any
transfer of Shares to (A) a partner of the Purchaser, (B) a retired partner
of the Purchaser who retires after the date hereof, or (C) the estate of
any such partner; provided that in each of the foregoing cases the
transferee agrees in writing to be subject to the terms of this Section 3
to the same extent as if the transferee were an original purchaser
hereunder.
3.9. Legends. It is understood that the certificates evidencing the
Shares will bear the legends set forth below:
(a) The securities represented hereby have not been registered
under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or under the Securities laws of any state
of the United States, and may not be sold, transferred,
assigned, pledged, hypothecated, or otherwise disposed of
unless registered under the Securities Act, or the Company
has received an opinion of counsel or other evidence,
satisfactory to it and its counsel, that an exemption from
such registration is available.
(b) Any legend imposed or required by the applicable state securities
laws, the Registration Rights Agreement or any other ancillary agreement.
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to purchase the Shares is subject to
the satisfaction by the Company, or waiver by the Purchaser, on or prior to
the Closing Date, of the following conditions:
4.1. Representations and Warranties. Each of the representations and
warranties of the Company set forth in this Agreement that is qualified as
to Material Adverse Effect or materiality shall be true and correct, and
each of the representations and warranties of the Company set forth in this
Agreement not so qualified shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (except to the
extent in either case that such representations and warranties speak as of
another date).
4.2. Refinancing of Senior Credit Facility. The Company shall have
completed the Refinancing of its senior credit facility on terms
satisfactory to the Purchaser in its sole discretion.
4.3. Third Supplemental Indenture. The Company and the Trustee shall
have executed and delivered the Third Supplemental Indenture, and the
Amendments contained therein shall have become effective.
5. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" means this Common Stock Purchase Agreement, including all
amendments, modifications and supplements thereto.
"Amendments" shall mean the amendments to the Indenture described in
the Consent Solicitation Statement.
"Closing" shall have the meaning assigned to such term in Section
1.02.
"Closing Date" shall have the meaning assigned to such term in
Section 1.02.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall have the meaning assigned to such term in
Preliminary Statement A.
"Company" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Consent Solicitation Statement" shall mean that Consent Solicitation
Statement, dated as of March 27, 2000, relating to the Company's 10 1/8%
Senior Subordinated Notes due 2007.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Indemnified Party" shall have the meaning assigned to such term in
Section 5.02.
"Indenture" shall mean that certain Indenture, dated as of December
19, 1997, by and among Richmont Marketing Specialists Inc. (which merged
with and into the Company in August 1999), the guarantor subsidiaries named
therein and Chase Bank of Texas, National Association (f/k/a Texas Commerce
Bank National Association), relating to the Company's 10 1/8% Senior
Subordinated Notes due 2007.
"Material Adverse Effect" means any material adverse effect on (a)
the business, assets, operations or financial condition of the Company and
its subsidiaries, taken as a whole, (b) the ability of the Company to
perform its obligations under this Agreement or the Registration Rights
Agreement or (c) the binding nature, validity or enforceability of this
Agreement or the Registration Rights Agreement.
"Purchaser" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Refinancing" shall mean the refinancing of the Company's existing
senior credit facility by entering into a Second Amended and Restated
Credit Agreement among the Company and First Union National Bank, as agent
and entering into a new revolving credit facility pursuant to a credit
agreement among the Company, certain of its subsidiaries and The Chase
Manhattan Bank, as agent.
"Registration Rights Agreement" means the Registration Rights
Agreement for the RMSI Stockholders, dated as of August 18, 1999, by and
among the Company, the Purchaser and the other parties thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" shall have the meaning assigned to such term in Section
1.01.
"Third Supplemental Indenture" shall mean the Third Supplemental
Indenture by and among the Company, its subsidiaries and the Trustee,
effecting the Amendments.
"Trustee" shall mean Chase Bank of Texas, National Association, the
trustee under the indenture governing the Company's 10 1/8% Senior
Subordinated Notes due 2007.
6. INDEMNIFICATION
6.1. General Indemnity. The Company agrees to indemnify and save
harmless the Purchaser and its directors, officers, affiliates, successors
and assigns from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by the Purchaser as a
result of any inaccuracy in or breach of the representations, warranties or
covenants made by the Company in this Agreement and in the Registration
Rights Agreement. The Purchaser agrees to indemnify and save harmless the
Company and its directors, officers, affiliates, successors and assigns
from and against any and all losses, liabilities, deficiencies, costs,
damages and expenses (including, without limitation, reasonable attorneys'
fees, charges and disbursements) incurred by the Company as a result of any
inaccuracy in or breach of the representations, warranties or covenants
made by the Purchaser herein.
6.2. Indemnification Procedure. Any party entitled to indemnification
under this Section 5 (an "Indemnified Party") will give written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification promptly after the discovery by such party of any matters
giving rise to a claim for indemnification; provided that the failure of
any party entitled to indemnification hereunder to give notice as provided
herein shall not relieve the indemnifying party of its obligations under
this Section 5 except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any action, proceeding
or claim is brought against an Indemnified Party in respect of which
indemnification is sought hereunder, the indemnifying party shall be
entitled to participate in and, unless in the reasonable judgment of the
Indemnified Party a conflict of interest between it and the indemnifying
party may exist in respect of such action, proceeding or claim, to assume
the defense thereof, with counsel reasonably satisfactory to the
Indemnified Party. In the event that the indemnifying party advises an
Indemnified Party that it will contest such a claim for indemnification
hereunder, or fails, within thirty (30) days of receipt of any
indemnification notice to notify, in writing, such person of its election
to defend, settle or compromise, at its sole cost and expense, any action,
proceeding or claim (or discontinues its defense at any time after it
commences such defense), then the Indemnified Party may, at its option,
defend, settle or otherwise compromise or pay such action, proceeding or
claim. In any event, unless and until the indemnifying party elects in
writing to assume and does so assume the defense of any such claim,
proceeding or action, the Indemnified Party's costs and expenses arising
out of the defense, settlement or compromise of any such action,
proceeding, claim or proceeding shall be losses subject to indemnification
hereunder. The Indemnified Party shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any
such action, proceeding or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to
the Indemnified Party which relates to such action, proceeding or claim.
The indemnifying party shall keep the Indemnified Party fully informed at
all times as to the status of the defense or any settlement negotiations
with respect thereto. If the indemnifying party elects to defend any such
action, proceeding 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, claim or proceeding effected without its written consent,
provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. Anything in this Section 5 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 which imposes any
future obligation on the Indemnified Party or which 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, proceeding or action. The indemnification required by this Section 5
shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or expense,
loss, damage or liability is incurred. The indemnity agreements contained
herein shall be in addition to (a) any cause of action or similar right of
the Indemnified Party against the indemnifying party or others, and (b) any
liabilities the indemnifying party may be subject to pursuant to the law.
6.3. Indemnification Limitations. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to make claims under Section 5.01
hereof only to the extent that the aggregate amount of losses arising from
such claims does not exceed $5,000,000. Nothing contained in this Section
5.03 shall be construed to limit the indemnification obligations of the
Company afforded to any holder of Shares under the Registration Rights
Agreement or afforded to any director or officer of the Company under its
organizational documents, state law or otherwise.
7. MISCELLANEOUS
7.1. No Waiver; Cumulative Remedies. No failure or delay on the part
of any party to this Agreement or the Registration Rights Agreement in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy thereunder. The remedies therein provided
are cumulative and not exclusive of any remedies provided by law.
7.2. Amendments, Waivers and Consents. Any provisions in this
Agreement to the contrary notwithstanding, and except as hereinafter
provided, changes in, termination or amendments of or additions to this
Agreement or the Registration Rights Agreement may be made, and compliance
with any provision set forth herein may be omitted or waived, if the
Company shall obtain consent thereto in writing from the Purchaser. Any
waiver or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
7.3. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given
only if delivered personally against written receipt or by facsimile
transmission or mailed by prepaid first class mail, return receipt
requested, or mailed by overnight courier prepaid to the parties at the
following addresses or facsimile numbers.
To the Company: Marketing Specialists Corporation
17855 N. Dallas Parkway, Suite 200
Dallas, Texas 75287
Attention: Nancy K. Jagielski
Facsimile Number: 972-349-6448
With a copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
Attention: Alan M. Utay
Facsimile Number: 214-969-4343
To the Purchaser: MS Acquisition Limited
17855 North Dallas Parkway
Suite 200
Dallas, Texas 75287
Attention: Nick Bouras
Fax: (972) 860-7584
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Eileen T. Nugent
Fax: (212) 735-2000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 6.03 be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 6.03 be deemed given upon successful
transmission, (iii) if delivered by mail in the manner described above to
the address as provided in this Section 6.03 be deemed given upon the
earlier of the third business day following mailing or upon receipt and
(iv) if delivered by overnight courier to the address as provided in this
Section 6.03 be deemed given on the earlier of the first business day
following the date sent by such overnight courier or upon receipt. Any
party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
7.4. Binding Effect; Assignment. Each of this Agreement and the
Registration Rights Agreement shall be binding upon and inure to the
benefit of each of the Company and the Purchaser and their respective
heirs, successors and assigns, except that the Company shall not have the
right to delegate its obligations hereunder.
7.5. Survival of Representations and Warranties. All representations
and warranties made in this Agreement, the Registration Rights Agreement,
or any other instrument or document delivered in connection herewith or
therewith, shall survive the execution and delivery hereof or thereof for a
period of 12 months after the date hereof.
7.6. Severability. The provisions of this Agreement, the Registration
Rights Agreement and the terms of the Shares are severable and, in the
event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained in this
Agreement, the Registration Rights Agreement or the terms of the Shares
shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision or part of a provision of this Agreement or the
Registration Rights Agreement or the terms of the Shares, but this
Agreement and the Registration Rights Agreement and the terms of the Shares
shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of a provision, had never been contained
herein, and such provisions or part reformed so that it would be valid,
legal and enforceable to the maximum extent possible.
7.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE.
7.8. Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
7.9. Counterparts. This Agreement may be executed in any number of
counterparts, each or which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.10. Closing Condition Waivers. At any time prior to the Closing
Date, any party hereto may (a) extend the time for the performance of any
of the obligations or other acts of any other party hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto, and (c) waive compliance with any
of the agreements or conditions contained herein. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed by the party granting such
waiver but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or future failure.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date and year first above written.
MARKETING SPECIALISTS CORPORATION
By: /s/ Jay DiNucci
---------------------------------
Name: Jay DiNucci
Title: Vice President
MS ACQUISITION LIMITED
By: MSSC Acquisition Corp., its
General Partner
By: /s/ Nick G. Bouras
__________________________
Name: Nick G. Bouras
Title: Vice President
EXHIBIT X
- ----------------------------------------------------------------------------
MARKETING SPECIALISTS CORPORATION
_______________________
STOCKHOLDERS AGREEMENT
_______________________
DATED AS OF MARCH 30, 2000
- -----------------------------------------------------------------------------
TABLE OF CONTENTS
Page
1. TAG-ALONG RIGHTS IN RESPECT OF SALE OF STOCK BY OTHER
STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Right to Sell Proportionate Number of Shares . . . . . . . 1
1.2 Notice of Proposed Sale . . . . . . . . . . . . . . . . . 2
1.3 Election by Holders . . . . . . . . . . . . . . . . . . . 2
1.4 Pro Rata Cutback of Number of Shares Sold . . . . . . . . 2
1.5 Exercise . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6 Closing of Sale . . . . . . . . . . . . . . . . . . . . . 3
1.7 Expense of Sale . . . . . . . . . . . . . . . . . . . . . 3
2. OTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Cooperation by Continuing Investor and Richmont . . . . . 3
2.2 Termination of Restrictions . . . . . . . . . . . . . . . 3
3. INTERPRETATION OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . 4
3.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . 4
3.2 Directly or Indirectly . . . . . . . . . . . . . . . . . . 8
3.3 Section Headings and Table of Contents and Construction . 8
3.4 Satisfaction Requirement . . . . . . . . . . . . . . . . . 8
3.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . 8
4. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Communications . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Reproduction of Documents . . . . . . . . . . . . . . . . 9
4.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.4 Successors and Assigns . . . . . . . . . . . . . . . . . 10
4.5 Amendments and Waivers . . . . . . . . . . . . . . . . . 10
4.6 Waiver of Jury Trial; Consent to Jurisdiction; Etc . . . 10
4.7 Indemnification of Each Holder . . . . . . . . . . . . . 11
4.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . 12
4.9 Execution in Counterpart . . . . . . . . . . . . . . . . 12
4.10Descriptive Headings . . . . . . . . . . . . . . . . . . 12
4.11Severability . . . . . . . . . . . . . . . . . . . . . . 12
Annex 1 - Name and Address of Purchaser
Annex 2 - Name and Address of MSC
Annex 3 - Name and Address of the Continuing Investor
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (as the same may hereafter be amended,
supplemented or modified, this "Agreement"), dated as of March 30, 2000
among MARKETING SPECIALISTS CORPORATION (together with its successors and
assigns, "MSC"), a Delaware corporation, FIRST UNION INVESTORS, INC., a
North Carolina corporation (the "PURCHASER"), MS ACQUISITION LIMITED, a
Delaware limited partnership (the "CONTINUING INVESTOR") and RICHMONT
CAPITAL PARTNERS I, L.P., a Delaware limited partnership ("RICHMONT").
RECITALS
WHEREAS, pursuant to the Warrant Agreement, MSC has issued to the
Purchaser, Six Hundred Eighty Seven Thousand One Hundred Thirty Six
(687,136) Warrants to purchase shares of the Common Stock; and
WHEREAS, the Continuing Investor is the holder of Five Million Six
Hundred Thousand Six Hundred Seventeen (5,600,617) shares of the Common
Stock (9,600,617 immediately following the effectiveness hereof); and
WHEREAS, MSC, the Purchaser, the Continuing Investor and Richmont
wish to define certain rights as among them relating to the Common Stock,
Warrants and other Stock held by them;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, MSC, the Continuing Investor and the Purchaser
mutually agree as follows:
1. TAG-ALONG RIGHTS IN RESPECT OF SALE OF STOCK BY OTHER STOCKHOLDERS.
1.1. Right to Sell Proportionate Number of Shares. The Continuing
Investor hereby agrees that it will not sell to any party or parties in any
twelve month period more than ten percent (10%) of the Issuable Shares
owned by it pursuant to a Covered Transaction unless, as part of such
transaction, each holder of Purchaser Shares shall have the right (but not
the obligation) to sell a proportionate amount of the Purchaser Shares then
held by such holder at the same Imputed Price and on the same terms (or
terms as similar as reasonably possible), and to the same purchaser or
purchasers.
For purposes of this Section 1, the "proportionate amount" which a
holder of Purchaser Shares shall be entitled to sell with respect to any
proposed transaction shall be equal to the product (calculated as of the
date of such proposed transaction) of:
(a) the total number of Purchaser Shares then owned by such
holder; times
(b) the quotient of:
(i) the aggregate number of Issuable Shares proposed
to be sold in such transaction by the Other Stockholders; divided by
(ii) the aggregate number of Issuable Shares owned by
the Other Stockholders.
1.2. Notice of Proposed Sale. The Continuing Investor shall promptly
provide to each of the holders of the Purchaser Shares written notice of
its intention to engage in a Covered Transaction. Such written notice (the
"Notice of Sale") shall:
(a) specify in detail the terms of such proposed sale (including
the type of Issuable Shares proposed to be sold, the Imputed Price and,
in the event that any Rights are being sold, the Valuation Agent's
calculation of the Imputed Price from the actual purchase price for such
Rights);
(b) state the date on which such proposed sale is to be
consummated; and
(c) designate one (1) party to whom notice of the determination to
participate in such proposed sale should be delivered.
1.3. Election by Holders. Upon receipt of a Notice of Sale, each
holder of Purchaser Shares shall have twenty (20) days to deliver written
notice (the "Tag-Along Notice") of its election to participate in such sale
and the number of Issuable Shares which it elects to sell, which number
shall not exceed its proportionate amount. Subject to Section 1.4, upon
delivery of a Tag-Along Notice, each holder of Purchaser Shares shall be
obligated to sell on the terms set forth in the Notice of Sale the number
of Issuable Shares specified in its Tag-Along Notice.
1.4. Pro Rata Cutback of Number of Shares Sold. In the event that the
Other Stockholders intending to sell the Issuable Shares shall be unable to
sell the aggregate number of shares to be sold by the Other Stockholders
and which the holders of the Purchaser Shares have elected to sell pursuant
to Section 1.1 at the price specified in the Notice of Sale, then the
number of Issuable Shares to be sold by the Other Stockholders and such
holders of Purchaser Shares electing to sell such Issuable Shares shall be
reduced ratably (as between such groups and, with respect to the holders of
the Purchaser Shares, as among the members of such group) to the extent
necessary to reduce the total number of Issuable Shares to be included in
such offering to the maximum number which the selling Continuing Investor
can sell at such price. Whether or not any such adjustment in the number of
Issuable Shares to be sold is required to be made, the Continuing Investor
shall give each such holder which has elected to sell Issuable Shares,
written notice of the number of shares it is permitted to sell pursuant to
this Section 1 (after giving effect to the provisions of this Section 1.4)
not less than ten (10) days prior to the date of such sale.
1.5. Exercise. Unless the Continuing Investor otherwise agrees, all
Issuable Shares to be sold by the holders of Purchaser Shares pursuant to
this Section 1 shall be shares of Stock. MSC shall, if necessary, permit
the holders of Purchaser Shares to exercise or convert their respective
Purchaser Shares into shares of Stock in contemplation of such holders'
delivery of Stock at the closing of any such sale, whether or not at such
time such Purchaser Shares are exercisable or convertible to Stock in
accordance with their respective terms or the terms of any agreements
governing such Purchaser Shares at such time.
1.6. Closing of Sale. Each holder of Purchaser Shares electing to
participate in a sale described in any Notice of Sale shall deliver to the
purchaser specified in such Notice of Sale, against payment of the total
purchase price for the Issuable Shares to be purchased (at the price per
share specified in such Notice of Sale), on the closing date specified in
such Notice of Sale, a certificate or certificates representing the number
of Issuable Shares which it has elected to sell (net of any reduction
pursuant to Section 1.4) pursuant to this Section 1, together with
appropriate instruments of transfer duly endorsed in blank.
1.7. Expense of Sale. All expenses and costs of any sale of Issuable
Shares pursuant to this Section 1 shall be for the account of and paid by
the party selling such Issuable Shares.
2. OTHER AGREEMENTS.
2.1. Cooperation by Continuing Investor and Richmont. Continuing
Investor shall not, and Richmont shall not directly or indirectly,
including through any other Person which is a partner or affiliate of,
controls, is controlled by or is under common control with Richmont or the
Continuing Investor: (a) enter into any shareholder agreement, voting
agreement or similar arrangement with any other Person (other than a Person
which is a partner or affiliate of, controls, is controlled by or is under
common control with Richmont or the Continuing Investor) in connection with
the acquisition or holding of Common Stock by such other Person or (b)
acquire any shares of Common Stock, in each case the direct or indirect
result of which would be that MSC would either (i) cease to be required to
register under the Exchange Act or (ii) cease to be listed either on a
national securities exchange, the NASDAQ National Market or the NASDAQ
SmallCap Market, unless, as a condition to such agreement, arrangement or
acquisition, such acquiring or holding Person shall be required to purchase
all the Issuable Shares of the Purchaser for an amount, per share, equal to
the higher of (1) the average price per share of Common Stock paid by such
acquiring or holding Person in connection with such transaction, or (2) the
Market Price, provided that the date of determination of "Market Price"
shall be the last trading date before the date on which such transaction
was announced.
2.2. Termination of Restrictions.
(a) With Respect to Shares Sold. Each and all of the provisions
of this Agreement shall terminate immediately as to any Issuable Shares
(but this Agreement shall remain in force with respect to any remaining
Issuable Shares):
(i) when such Issuable Shares have been effectively
registered under the Securities Act and disposed of in accordance with
a registration statement covering such Issuable Shares; or
(ii) when such Issuable Shares shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act when such Issuable Shares shall
have been otherwise transferred and subsequent disposition of them
shall not require registration or qualification under the Securities
Act or any similar state law then in force; or
(iii) when such Issuable Shares have been sold or
disposed of by the Continuing Investor in any Covered Transaction,
provided the Continuing Investor shall have complied with the
provisions of Section 1 of this Agreement.
(b) Upon a Tag-Along Sale. The provisions of this Agreement shall
terminate immediately with respect to Purchaser Shares sold in any sale
pursuant to Section 1 or Section 2.1 of this Agreement.
(c) Ownership Level. The provisions of this Agreement shall
terminate with respect to any Issuable Shares held by the Continuing
Investor if the total number of Issuable Shares owned by the Continuing
Investor represents less than ten percent (10%) of the total number of
shares of Common Stock then outstanding.
3. INTERPRETATION OF THIS AGREEMENT.
3.1. Certain Defined Terms. As used herein, the following terms have
the respective meanings set forth below or set forth in the Section hereof
following such term: REMEMBER TO GO BACK AND DELETE THE TERMS YOU DON'T
USE!
AFFILIATE -- means, at any time, a Person (other than a Subsidiary or
the Purchaser): (a) that directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control
with, MSC; (b) that beneficially owns or holds ten percent (10%) or more of
any class of Stock; (c) ten percent (10%) or more of the voting stock (or
in the case of a Person that is not a corporation, ten percent (10%) or
more of the equity interest) of which is beneficially owned or held by MSC
or a Subsidiary; (d) that is an officer, member of the Board of Directors
(or a member of the immediate family of an officer or director or member of
the Board of Directors) of MSC or any Subsidiary, at such time. As used in
this definition, "Control" shall means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
AGREEMENT -- the introductory paragraph hereof.
CAPITAL STOCK -- means any class of preferred, common or other
capital stock, share capital or similar equity interest of a Person
including, without limitation, any partnership interest in any partnership
or limited partnership and any membership interest in any limited liability
company.
CHARTER -- means the Second Amended and Restated Certification of
Incorporation of MSC dated December 14, 1998, as amended by Certificate of
Amendment to Second Amended or Restated Certificate of Incorporation dated
August 18, 1998.
COMMON STOCK -- means, collectively, the Common Stock, par value
$.0001 per share, of MSC.
CONTINUING INVESTOR -- the introductory paragraph hereof.
COVERED TRANSACTION -- means any sale of Issuable Shares by the
Continuing Investor other than (i) a sale pursuant to a registered
underwritten public offering; (ii) open market sales pursuant to Rule 144
under the Securities Act, or (iii) a sale to an Affiliate, provided such
Affiliate agrees in writing with Purchaser to be bound by the terms and
provisions of this Agreement as fully as though such Affiliate were a
Continuing Investor hereunder.
EXCHANGE ACT -- means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
GAAP -- means accounting principles as promulgated from time to time
in statements, opinions and pronouncements by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board
and in such statements, opinions and pronouncements of such other entities
with respect to financial accounting of for-profit entities as shall be
accepted by a substantial segment of the accounting profession in the
United States.
INDEMNIFIED PARTY -- Section 4.7.
ISSUABLE SHARE -- means and includes at any time,
(a) a share of issued and outstanding Stock; and
(b) a Right (including, without limitation, a Warrant), and
(without duplication) all shares of Stock issuable upon exercise of such
Right, in each case at such time.
For purposes of this definition of "Issuable Share", a Right to acquire one
share of Stock shall constitute one Issuable Share, and a Person shall be
deemed to own an Issuable Share if such Person has a Right to acquire such
share whether or not such Right is exercisable at such time. For purposes
of this Agreement, a share of Stock or a Right shall cease to be an
"Issuable Share" when the restrictions on such share or Right terminate
pursuant to Section 2.2.
IMPUTED PRICE -- means:
(a) in the case of a sale of Stock, the price per share paid for
such Stock; and
(b) in the case of a sale of any other Rights, the assumed price
per underlying share of Common Stock, as determined by a Valuation Agent
in accordance with generally accepted financial practice, which would
yield the actual purchase price to be paid for such Rights.
MARKET PRICE -- means, per share of Common Stock, as of any date of
determination, the arithmetic mean of the daily Closing Prices for the
twenty (20) consecutive trading days before such date of determination;
provided that if the Common Stock is then neither listed or admitted to
trading on any national securities exchange, the NASDAQ National Market or
the NASDAQ SmallCap Market, then "Market Price" means the Fair Value of one
share of Common Stock, as determined by the Valuation Agent as of the date
of determination.
MSC -- the introductory paragraph.
NOTICE OF SALE -- Section 1.2.
OTHER STOCKHOLDERS -- means and includes, at any time, all holders of
Issuable Shares at such time (other than the holders of Purchaser Shares),
including, without limitation, the Continuing Investor.
PERSON -- means an individual, partnership, corporation, limited
liability company, joint venture, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
PURCHASER -- the introductory paragraph.
PURCHASER SHARES -- means the following, without duplication:
(a) shares of Common Stock that have been issued upon the exercise
of any Warrant and all other shares of Stock issued to the Purchaser
from time to time;
(b) any shares of Stock into which any such shares of Stock shall
have been converted at any time; and
(c) any shares of Common Stock that are issuable upon the exercise
of the Warrants or the conversion of Stock referred to in clause (a) or
clause (b) above.
Holders of Warrants at any time shall be deemed to be holders of Purchaser
Shares described in clauses (b) and (c) of this definition that are at such
time issuable upon exercise in full of such Warrants, whether or not such
holders are then entitled so to exercise such Warrants pursuant to the
terms thereof.
REGISTRATION RIGHTS AGREEMENT -- means the Registration Rights
Agreement, of even date herewith, among MSC, the Purchaser and the other
parties thereto.
RIGHT -- means and includes any warrant (including, without
limitation, any Warrant), option or other right, to acquire Stock and
including, without limitation, any right pursuant to the provisions of any
security convertible or exchangeable into Stock.
SEC -- means, at any time, the Securities and Exchange Commission or
any other federal agency at such time administering the Securities Act.
SECURITIES ACT -- means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
STOCK -- shall mean and include (i) all shares of Capital Stock of
MSC, including without limitation, shares of Capital Stock issued, issuable
or transferable (A) on the exercise of rights to acquire shares of Capital
Stock or (B) on the conversion or exchange or exercise of securities
convertible into or exchangeable or exercisable for Capital Stock, and (ii)
all other securities of MSC which may be issued in exchange for or in
respect of shares of Capital Stock (whether by way of stock split, stock
dividend, combination, reclassification, reorganization or any other
means).
SUBSIDIARY -- means, as to any Person, any corporation in which such
Person or one or more Subsidiaries of such Person or such Person and one or
more Subsidiaries of such Person owns sufficient voting securities to
enable it or them (as a group) ordinarily, in the absence of contingencies,
to elect a majority of the directors (or Persons performing similar
functions) of such corporation. The term "Subsidiary," as used herein
without reference to any Person, shall mean a Subsidiary of MSC, Could, and
probably should, be conformed to Note Agreement definition.
VALUATION AGENT -- means a firm of independent certified public
accountants, an investment banking firm or a securities rating service
(which firm or service shall own no Securities of, and shall not be an
Affiliate, Subsidiary or a related Person of, MSC) of recognized national
standing retained by MSC and reasonably acceptable to the Required Holders.
VOTING STOCK -- means, with respect to any corporation, any shares of
stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
WARRANT -- means and includes each warrant to purchase Common Stock
issued pursuant to the Warrant Agreement.
WARRANT AGREEMENT -- means the Warrant Agreement, of even date
herewith, between MSC and the Purchaser, as amended, modified or
supplemented from time to time.
3.2. Directly or Indirectly. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person, including actions taken by or on
behalf of any partnership in which such Person is a general partner.
3.3. Section Headings and Table of Contents and Construction.
(a) Section Headings and Table of Contents, etc. The titles of the
Sections of this Agreement and the Table of Contents of this Agreement
appear as a matter of convenience only, do not constitute a part hereof
and shall not affect the construction hereof. The words "herein,"
"hereof," "hereunder" and "hereto" refer to this Agreement as a whole
and not to any particular Section or other subdivision. References to
Sections are, unless otherwise specified, references to Sections of this
Agreement. References to Annexes and Exhibits are, unless otherwise
specified, references to Annexes and Exhibits attached to this
Agreement.
(b) Construction. Each covenant contained herein shall be
construed (absent an express contrary provision herein) as being
independent of each other covenant contained herein, and compliance with
any one covenant shall not (absent such an express contrary provision)
be deemed to excuse compliance with one or more other covenants.
3.4. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this
Agreement or the Purchaser Shares required to be satisfactory to any holder
or holders of Purchaser Shares, the determination of such satisfaction
shall, unless specifically required herein in any instance to be
"reasonable" or words to similar effect, be made by such holder or holders,
as the case may be, in the sole and exclusive judgment (exercised in good
faith) of the Person or Persons making such determination.
3.5. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF DELAWARE.
4. MISCELLANEOUS.
4.1. Communications.
(a) Method; Address. All communications hereunder or under the
Purchaser Shares shall be in writing and shall be delivered either by
nationwide overnight courier or by facsimile transmission (confirmed by
delivery by nationwide overnight courier sent on the day of the sending
of such facsimile transmission). Communications to the Continuing
Investor shall be addressed as set forth on Annex 3, or at such other
address of which the Continuing Investor shall have notified each holder
of Purchaser Shares and MSC. Communications to MSC shall be addressed
as set forth on Annex 2, or at such other address of which MSC shall
have notified each holder of Purchaser Shares and the Continuing
Investor. Communications to the holders of Purchaser Shares shall be
addressed as set forth on Annex 1 for such holder or at such other or
further address of which such holder shall have notified MSC and the
Continuing Investor.
(b) When Given. Any communication addressed and delivered as
herein provided shall be deemed to be received when actually delivered
to the address of the addressee (whether or not delivery is accepted) or
received by the telecopy machine of the recipient. Any communication
not so addressed and delivered shall be ineffective.
(c) Service of Process. Notwithstanding the foregoing provisions
of this Section 4.1, service of process in any suit, action or
proceeding arising out of or relating to this agreement or any document,
agreement or transaction contemplated hereby, or any action or
proceeding to execute or otherwise enforce any judgment in respect of
any breach hereunder or under any document or agreement contemplated
hereby, shall be delivered in the manner provided in Section 4.6(c).
4.2. Reproduction of Documents. This Agreement and all documents
relating hereto, including, without limitation, consents, waivers and
modifications that may hereafter be executed, documents received by any
holder of Purchaser Shares at the closing of its purchase of such Purchaser
Shares (except any certificate evidencing Purchaser Shares themselves), and
financial statements, certificates and other information previously or
hereafter furnished to any holder of Purchaser shares, may be reproduced by
MSC or any holder of Purchaser Shares by any photographic, photostatic,
microfilm, micro-card, miniature photographic, digital or other similar
process and each holder of Purchaser Shares may destroy any original
document so reproduced. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not
such reproduction was made by MSC or any such holder of Purchaser Shares in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Nothing in this Section 4.2 shall prohibit MSC or any holder of Purchaser
Shares from contesting the accuracy or validity of any such reproduction.
4.3. Survival. All warranties, representations, certifications and
covenants made by MSC in the Warrant Agreement or herein or in any
certificate or other instrument delivered by MSC or on behalf of MSC
thereunder or hereunder shall be considered to have been relied upon by
each holder of Purchaser Shares and shall survive the delivery to such
holder of the certificate or certificates evidencing such Purchaser Shares
regardless of any investigation made by or on behalf of any such holder.
All statements in any certificate or other instrument delivered by or on
behalf of MSC pursuant to the terms thereof or hereof shall constitute
warranties and representations by MSC, as the case may be, hereunder. All
payment obligations of MSC hereunder shall survive the termination hereof.
4.4. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon all the holders, from time to time, of the
Purchaser Shares and their successors and assigns. The provisions hereof
are intended to be for the benefit of the holders of the Purchaser Shares
and their successors and assigns and shall be enforceable by any such
holder, successor or assignee, whether or not an express assignment of
rights hereunder shall have been made by any such holder or its successor
or assign. Anything contained in this Section 4.4 notwithstanding, MSC may
not assign any of its respective rights, duties or obligations hereunder or
under any of the other Financing Documents without the prior written
consent of all holders of the Purchaser Shares.
4.5. Amendments and Waivers. The provisions of this Agreement may be
amended, modified or supplemented, and compliance with any provision hereof
waived, only by a writing duly executed by or on behalf of the Required
Holders, the Continuing Investor and MSC.
4.6. Waiver of Jury Trial; Consent to Jurisdiction; Etc.
(a) Waiver of Jury Trial. THE PARTIES HERETO VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE PURCHASER SHARES, THE CERTIFICATES EVIDENCING THE
PURCHASER SHARES OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
(b) Consent to Jurisdiction. ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PURCHASER SHARES, THE
CERTIFICATES EVIDENCING THE PURCHASER SHARES OR ANY OF THE DOCUMENTS,
AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR ANY ACTION
OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF
ANY BREACH HEREUNDER OR THEREUNDER MAY BE BROUGHT BY SUCH PARTY IN ANY
FEDERAL DISTRICT COURT LOCATED IN THE STATE OF DELAWARE, OR ANY DELAWARE
STATE COURT LOCATED IN WILMINGTON, DELAWARE AS SUCH PARTY MAY IN ITS
SOLE DISCRETION ELECT, AND BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO
THE NON-EXCLUSIVE IN PERSONAM JURISDICTION OF EACH SUCH COURT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT IN ANY
PROCEEDING BEFORE ANY TRIBUNAL, BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE IN PERSONAM
JURISDICTION OF ANY SUCH COURT. IN ADDITION, EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE PURCHASER SHARES, THE CERTIFICATES EVIDENCING THE
PURCHASER SHARES OR ANY DOCUMENT, AGREEMENT OR TRANSACTION CONTEMPLATED
HEREBY OR THEREBY BROUGHT IN ANY SUCH COURT, AND HEREBY IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) Service of Process. EACH PARTY HERETO IRREVOCABLY AGREES THAT
PROCESS PERSONALLY SERVED OR SERVED BY U.S. REGISTERED MAIL AT THE
ADDRESSES PROVIDED HEREIN FOR NOTICES SHALL CONSTITUTE, TO THE EXTENT
PERMITTED BY LAW, ADEQUATE SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PURCHASER
SHARES, THE CERTIFICATES EVIDENCING THE PURCHASER SHARES OR ANY
DOCUMENT, AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY OR THEREBY, OR
ANY ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN
RESPECT OF ANY BREACH HEREUNDER OR UNDER ANY DOCUMENT OR AGREEMENT
CONTEMPLATED HEREBY. RECEIPT OF PROCESS SO SERVED SHALL BE CONCLUSIVELY
PRESUMED AS EVIDENCED BY A DELIVERY RECEIPT FURNISHED BY THE UNITED
STATES POSTAL SERVICE OR ANY COMMERCIAL DELIVERY SERVICE.
(d) Other Forums. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO
LIMIT THE ABILITY OF ANY HOLDER OF PURCHASER SHARES TO SERVE ANY WRITS,
PROCESS OR SUMMONSES IN ANY MANNER PERMITTED BY APPLICABLE LAW OR TO
OBTAIN JURISDICTION OVER MSC IN SUCH OTHER JURISDICTION, AND IN SUCH
OTHER MANNER, AS MAY BE PERMITTED BY APPLICABLE LAW.
4.7. Indemnification of Each Holder.
From and at all times after the date of this Agreement, and in
addition to all other rights and remedies of each holder of Purchaser
Shares against MSC, MSC agrees to indemnify and hold harmless each holder
of Purchaser Shares and each director, trustee, officer, employee, agent,
investment advisor and affiliate of each such holder (each, an "Indemnified
Party") against any and all claims (whether valid or not), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever
(including, without limitation, reasonable attorneys' fees, costs and
expenses), incurred by or asserted against any Indemnified Party, from and
after the date hereof, whether direct, indirect or consequential, as a
result of or arising from or in any way relating to any suit, action or
proceeding (including any inquiry or investigation) by any Person, whether
threatened or initiated, asserting a claim for any legal or equitable
remedy against any Person under any statute or regulation, including, but
not limited to, any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or enforcement of this
Agreement, the Warrants, the Purchaser Shares, the certificates evidencing
the Purchaser Shares or the other documents and transactions contemplated
herein or therein, or any of the transactions contemplated hereunder or
thereunder, whether or not such Indemnified Party is a party to any such
action, proceeding, suit or the target of any such inquiry or
investigation; provided, however, that no Indemnified Party shall have the
right to be indemnified hereunder for any liability resulting from the
willful misconduct or gross negligence of such Indemnified Party or breach
by such Indemnified Party of its own obligations under this Agreement. All
of the foregoing losses, damages, costs and expenses of any Indemnified
Party shall be payable as and when incurred upon demand by such Indemnified
Party and shall be additional obligations hereunder. The obligations of MSC
and the rights of the Indemnified Parties under this Section 4.7 shall
survive the termination of this Agreement.
4.8. Entire Agreement.
This Agreement, together with the certificates evidencing Purchaser
Shares, the Warrant Agreement, the Registration Rights Agreement and the
other documents contemplated herein and therein, constitutes the final
written expression of all of the terms hereof and is a complete and
exclusive statement of those terms.
4.9. Execution in Counterpart. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
4.10. Descriptive Headings. Descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
4.11. Severability. The fact that any given provision of this
Agreement is found to be unenforceable, void or voidable under the laws of
any jurisdiction shall not effect the validity of the remaining provisions
of this Agreement in such jurisdiction, and shall not effect the
enforceability of the entire Agreement under the laws of any other
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed and delivered, all as of the date and year
first above written.
MARKETING SPECIALISTS CORPORATION
By: ________________________________________
Name:
Title:
MS ACQUISITION LIMITED, by its General Partner
MSSC Acquisition Corp.
By:
----------------------------------
Name:
Title:
RICHMONT CAPITAL PARTNERS I, L.P.,
by its General Partner J.R. Investments Corp.
By:
------------------------------------
Name:
Title:
FIRST UNION INVESTORS, INC.
By: ________________________________
Name:
Title:
