Exhibit XII
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MARKETING SPECIALISTS CORPORATION
PREFERRED STOCK PURCHASE
AGREEMENT
DATED AS OF JUNE 23, 2000
5,000 SHARES OF
CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE OF PREFERRED STOCK............................1
1.1. Authorization of Preferred Stock..............1
1.2. Purchase Price and Closing....................1
1.3. Use of Proceeds...............................2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................2
2.1. Organization, Standing and Power..............2
2.2. Authority.....................................2
2.3. Enforceability................................2
2.4. Valid Issuance................................2
2.5. Capitalization................................3
2.6. No Violation..................................3
2.7. Reports and Financial Statements..............3
2.8. Litigation....................................3
2.9. Registration Rights Agreement.................4
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.................4
3.1. Authorization.................................4
3.2. Purchase for Own Account......................4
3.3. Disclosure of Information.....................4
3.4. Investment Experience.........................4
3.5. Accredited Investor Status....................5
3.6. Restricted Securities.........................5
3.7. Governmental Consents.........................5
3.8. Further Limitations on Disposition............5
3.9. Legends.......................................5
4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS.............6
4.1. Representations and Warranties................6
5. DEFINITIONS......................................................
6. INDEMNIFICATION.................................................7
6.1. General Indemnity.............................7
6.2. Indemnification Procedure.....................7
6.3. Indemnification Limitations...................8
7. MISCELLANEOUS...................................................9
7.1. No Waiver; Cumulative Remedies................9
7.2. HSR...........................................9
7.3. Amendments, Waivers and Consents..............9
7.4. Notices.......................................9
7.5. Binding Effect; Assignment...................10
7.6. Survival of Representations and Warranties...10
7.7. Severability.................................10
7.8. Governing Law................................11
7.9. Headings.....................................11
7.10. Counterparts.................................11
7.11. Closing Condition Waivers....................11
PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is
dated this 23 day of June, 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 shares of the Company's Convertible Paid-In-Kind Preferred Stock,
$0.01 par value per share (the "Preferred Stock"), directly from the
Company, subject to the terms and conditions set forth herein.
B. The Company desires to sell shares of Preferred 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 PREFERRED STOCK
1.1. Authorization of Preferred Stock. The Company has authorized
the issuance and sale of 5,000 shares (the "Shares") of its authorized but
unissued shares of Preferred 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 $1,000 per share, for an aggregate purchase price of $5,000,000.
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 promptly upon
satisfaction of 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
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY
10036, 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 (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 $5,000,000 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, to issue and sell the Shares and to
carry out its obligations hereunder. The issuance and sale of the Shares by
the Company to the Purchaser has been unanimously approved by an
independent committee of the Board of Directors of the Company.
2.3. Enforceability. This Agreement has 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, except as created by Purchaser,
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 June 21, 2000, (i) 19,572,472 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
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 will not (a) contravene any provision of the Certificate of
Incorporation or Bylaws 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) to the extent necessary, consents under (A)
the Second Amended and Restated Credit Agreement dated March 30, 2000,
among the Company, the lenders set forth on Schedule 1 thereto and First
Union National Bank as agent for the lenders, and (B) the Credit Agreement
dated March 30, 2000 among the Company and certain of its subsidiaries, as
borrowers, the lenders named therein and The Chase Manhattan Bank, as Agent
which such consents have 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. With the exception of Brown v. Pedersen, C.A. No.
18099-NC and Parnes v. Byrd, C.A. No. 1810-NC , 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 Common Stock issuable upon conversion of 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, except that a filing under the HSR
Act will be necessary for Purchaser to convert the Shares into Common
Stock.
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. Consents. The Company shall have obtained all necessary
consent to the transactions contemplated by this Agreement under each of
(a) the Second Amended and Restated Credit Agreement dated March 30, 2000,
among the Company, the lenders set forth on Schedule 1 thereto and First
Union National Bank as agent for the lenders, and (b) the Credit Agreement
dated March 30, 2000 among the Company and certain of its subsidiaries, as
borrowers, the lenders named therein and The Chase Manhattan Bank, as
Agent.
5. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" means this Preferred Stock Purchase Agreement,
including all amendments, modifications and supplements thereto.
"Closing" shall have the meaning assigned to such term in Section
1.2.
"Closing Date" shall have the meaning assigned to such term in
Section 1.2.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the common stock of the Company, par
value $.01 per share.
"Company" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"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 5.2.
"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.
"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
1.1.
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. 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 6 (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 6 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 6 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 6
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 6.1
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
6.3 shall be construed to limit the indemnification obligations 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 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. HSR. If required by applicable law, each of the Purchaser
and the Company agree to cooperate in the preparation of, and file, any
required notification form pursuant to the HSR Act with respect to the
acquisition by the Purchaser of shares of the Company's Common Stock
issuable to the Purchaser upon conversion of the Preferred Stock.
7.3. 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 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.
7.4. 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, LLP
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 7.4 be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 7.4 be deemed given upon successful
transmission, (iii) if delivered by mail in the manner described above to
the address as provided in this Section 7.4 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 7.4 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.
7.5. Binding Effect; Assignment. This 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.
7.6. Survival of Representations and Warranties. All
representations and warranties made in this Agreement, or any other
instrument or document delivered in connection herewith, shall survive the
execution and delivery hereof or thereof for a period of 12 months after
the date hereof.
7.7. Severability. The provisions of this 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 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 terms of the Shares, but this 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.
7.8. 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.
7.9. Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
7.10. 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.
7.11. 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.
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/ Timothy M. Byrd
---------------------
Name: Timothy M. Byrd
Title: Chief Financial Officer
MS ACQUISITION LIMITED
By: MSSC Acquisition Corp., its General Partner
By: /s/ Nick Bouras
-----------------------------
Name: Nick Bouras
Title: Vice President
IN WITNESS WHEREOF, said Marketing Specialists Corporation, has
caused this Certificate of Designation to be signed this 22nd day of June,
2000.
MARKETING SPECIALISTS CORPORATION
By: /s/ Timothy M. Byrd
----------------------
Name: Timothy M. Byrd
Title: Chief Financial Officer
