SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AMENDMENT NO. 2
MARKETING SPECIALISTS CORPORATION f/k/a
MERKERT AMERICAN CORPORATION
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(Name of Issuer)
Common Stock,
Par Value $.01 Per Share
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(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
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 7, 2000
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(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
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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
TEXAS
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(7) SOLE VOTING POWER
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
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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
59.3%
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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
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(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
59.3%
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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
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(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
59.3%
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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
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
-----------------------------------------------------------------
(7) SOLE VOTING POWER
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(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
59.3%
-----------------------------------------------------------------
(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
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
59.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
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)
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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
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
59.3%
-----------------------------------------------------------------
(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
5,600,617
NUMBER OF SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY
EACH 3,535,972
REPORTING ___________________________________
PERSON WITH (9) SOLE DISPOSITIVE POWER
5,600,617
-----------------------------------
(10) SHARED DISPOSITIVE POWER
None
-----------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,136,589
-----------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
-----------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
59.3%
-----------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
IN
This Amendment No. 2 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.
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 January 7, 2000, by and among MS Acquisition and the
Company (the "Stock Purchase Agreement"), MS Acquisition purchased
1,577,287 shares of Common Stock of the Company at a price of $3.17 per
share, for an aggregate purchase price of $5,000,000.
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
1,577,287 shares acquired as a result of the Stock Purchase Agreement and
(ii) the 4,023,330 shares of Common Stock directly owned by MS Acquisition
before the execution of Stock Purchase Agreement (as previoulsy reported on
Schedule 13D).
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 1,577,287 shares of Common
Stock at a price of $3.17 per share, for an aggregate purchase price of
$5,000,000. The per share price was determined using the average of the
closing prices per share of Common Stock on the Nasdaq Stock Market for the
thirty (30) days prior to the issuance of the Common Stock.
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 9,136,589, which constitutes approximately 59.3% of the 15,415,431
shares of such Common Stock outstanding as of January 7, 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 9,136,589 shares of Common
Stock, which constitutes approximately 59.3% of the 15,415,431 shares of
such Common Stock outstanding as of January 7, 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,
5,600,617 shares of Common Stock, which constitutes approximately 36.3% of
the 15,415,431 shares of such Common Stock outstanding as of January 7,
2000.
MS Acquisition possesses the shared power to vote or direct the vote
of 3,535,972 shares of Common Stock, which constitutes approximately 23.0%
of the 15,415,431 shares of such Common Stock outstanding as of January 7,
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, 5,600,617 shares of Common Stock, which constitutes
approximately 36.3% of the 15,415,431 shares of such Common Stock
outstanding as of January 7, 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 3,535,972 shares of Common Stock, which
constitutes approximately 23.0% of the 15,415,431 shares of such Common
Stock outstanding as of January 7, 2000.
However, all such Item 2 Persons (including MS Acquisition) disclaim
beneficial ownership of the 3,535,972 shares of Common Stock which are
subject to the Post-Merger Voting Agreement (as previously reported amd
described in this 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 3,535,972 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 January 7,
2000. Pursuant to the Stock Purchase Agreement, MS Acquisition purchased
1,577,287 shares of Common Stock at a price of $3.17 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.
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 Acqusition 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: January 10, 2000 MS ACQUISITION LTD.
By: MSSC Acquisition Corporation,
General Partner
By: /s/ Timothy M. Byrd
__________________________
Name: Timothy M. Byrd
Title: Chief Financial Officer
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 - VII - Joint Filing Agreement among MS Acquisition, MSSC,
RCPI, JRIC, Rochon, Bouras and Byrd.
Exhibit VIII - VIII - Common Stock Purchase Agreement, dated as of
January 7, 2000, by and between Marketing Specialists
Corporation and MS Acqusition Limited.*
*Filed with this Amendment
EXHIBIT VIII
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MARKETING SPECIALISTS CORPORATION
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COMMON STOCK PURCHASE AGREEMENT
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DATED AS OF JANUARY 7, 2000
1,577,287 SHARES OF COMMON STOCK
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TABLE OF CONTENTS
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............................................2
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.....................................4
3.07. Governmental Consents.....................................5
3.08. Further Limitations on Disposition........................5
3.09. Legends...................................................5
4. DEFINITIONS.....................................................6
5. INDEMNIFICATION.................................................7
5.01. General Indemnity.........................................7
5.02. Indemnification Procedure.................................7
5.03. Indemnification Limitations...............................8
6. MISCELLANEOUS...................................................8
6.01. No Waiver; Cumulative Remedies............................8
6.02. Amendments, Waivers and Consents..........................8
6.03. Notices...................................................8
6.04. Binding Effect; Assignment................................9
6.05. Survival of Representations and Warranties................9
6.06. Severability.............................................10
6.07. Governing Law............................................10
6.08. Headings.................................................10
6.09. Counterparts.............................................10
6.10. Closing Condition Waivers................................10
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is dated this
7th day of January, 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
1.01. Authorization of Common Stock. The Company has authorized the
issuance and sale of 1,577,287 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.
1.02. 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 $3.17 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 at 9:00 a.m.
(Dallas, Texas time) on January 7, 2000, 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 $5,000,000 to the Company by wire transfer of immediately available
funds.
1.03. 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:
2.01. 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.
2.02. 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.
2.03. 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.
2.04. 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.
2.05. 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 November 6, 1999, (i) 13,838,144 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.
2.06. 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").
2.07. 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.
2.08. 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.
2.09. 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:
3.01. 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.
3.02. 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.
3.03. 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.
3.04. 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.
3.05. Accredited Investor Status. The Purchaser is an "accredited
investor" within the meaning of Regulation D promulgated under the
Securities Act.
3.06. 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.
3.07. 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.
3.08. 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.
3.09. 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. 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.
"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.
"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.
"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
1.01.
5. INDEMNIFICATION
5.01. 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.
5.02. 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.
5.03. 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.
6. MISCELLANEOUS
6.01. 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.
6.02. 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.
6.03. 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.
6.04. 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.
6.05. 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.
6.06. 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.
6.07. 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.
6.08. Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
6.09. 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.
6.10. 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/ Carrine K. Reilly
------------------------------
Name: Carrine K. Reilly
Title: Vice President &
Treasurer
MS ACQUISITION LIMITED
By: MS Acquisition Corp., its General
Partner
By: /s/ Timothy M. Byrd
------------------------------
Name: Timothy M. Byrd
Title: Vice President
