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MARKETING SPECIALISTS CORPORATION
PREFERRED STOCK PURCHASE
AGREEMENT
DATED AS OF AUGUST 8, 2000
4,500 SHARES OF
CONVERTIBLE PAID-IN-KIND PREFERRED STOCK
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TABLE OF CONTENTS
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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
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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
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PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is dated
this 8th day of August, 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 4,500 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 $4,500,000. 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
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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 $4,500,000 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
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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) 5,000 shares of 8.0% Convertible Paid-In-Kind Preferred
Stock were issued and 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
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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 issueable 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.
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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
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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 EX EMPTION 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:
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"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 Registra
tion 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
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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, proceed ing 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
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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 re-
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quested, 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.
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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 CON STRUED
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.
11
<PAGE>
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/ Timothy M. Byrd
------------------------------------
Name: Timothy M. Byrd
Title: Chief Financial Officer
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
