<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 1)
California Coastal Communities, Inc.
(Name of Issuer)
Common Stock, par value $.05 per share
(Title of Class of Securities)
50043430 3
(CUSIP Number)
William A. Austin
General Counsel
ING Baring (U.S.) Capital Corporation
135 East 57th Street
New York, New York 10022
Tel. (212) 409-6155
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies to:
John T. O'Connor, Esq.
Milbank, Tweed, Hadley & McCloy
One Chase Manhattan Plaza
New York, New York 10005
Telephone: (212) 530-5548
July 22, 1998
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report to acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box / /.
<PAGE> 2
SCHEDULE 13D
CUSIP NO.: 50043430 3
(1) NAME OF REPORTING PERSON: ING Baring (U.S.) Capital Corporation
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) / /
(b) /x/
(3) SEC USE ONLY
(4) SOURCE OF FUNDS: WC
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
(6) CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
(7) SOLE VOTING POWER: 1,930,684
(8) SHARED VOTING POWER: -0-
(9) SOLE DISPOSITIVE POWER: 1,930,684
(10) SHARED DISPOSITIVE POWER: -0-
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 1,930,684
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 16.21%
(14) TYPE OF REPORTING PERSON: CO
___________________
* Based upon 11,906,378 shares of common stock outstanding as of April 30,
1998 as reported in the issuer's Quarterly Report on Form 10Q for the
quarter ended March 31, 1998.
Page 2 of 6
<PAGE> 3
This statement constitutes Amendment No. 1 ("this Amendment")
to the Schedule 13D filed by ING Baring (U.S.) Capital Corporation ("ING
Baring") with the Securities and Exchange Commission on September 2, 1997 (the
"Schedule 13D") relating to its beneficial ownership of the Common Stock, par
value $.05 per share ("Common Stock") of California Coastal Communities, Inc., a
Delaware corporation (the "Company"). All capitalized terms not defined herein
shall have the meanings ascribed to them in the Schedule 13D.
Other than as set forth herein, there has been no material
change in the information set forth in Items 1 through 7 of the Schedule 13D.
1. Item 1 of the Schedule 13D is hereby deleted and replaced with
the following:
The class of equity securities to which this Statement on
Schedule 13D (the "Statement") relates is the common stock,
par value of $.05 per share (the "Common Stock"), of
California Coastal Communities, Inc., a Delaware corporation
(the "Company"), with its principal executive offices located
at 4343 Von Karman Avenue, Newport Beach, California 92660.
2. Item 3 of the Schedule 13D is hereby amended to add at the end
thereof the following:
The aggregate amount of cash paid by the Reporting Person in
consideration of the shares of Common Stock described in
paragraph 3 below ($2,175,863.25) was funded out of the
general working capital of the Reporting Person.
3. Item 5(a) of the Schedule 13D is hereby amended to delete the
first paragraph thereof and to add in its place the following:
On July 22, 1998, ING Baring purchased 3,583 shares of Common
Stock from Paul M. Meister ("Meister") pursuant to a letter
agreement dated July 16, 1998 by and among the Company and the
Seller, a copy of which is attached as Exhibit 1 hereto and
incorporated herein by reference, for an aggregate purchase
price of $29,559.75, or $8.25 per share.
On July 22, 1998, ING Baring purchased 235,852 shares of
Common Stock from Abex 92 Stock Trust ("Abex") pursuant to a
letter agreement dated July 16, 1998 by and among the Company
and Abex, a copy of which is attached as Exhibit 2 hereto and
incorporated herein by reference, for an aggregate purchase
price of $1,945,779, or $8.25 per share.
On July 22, 1998, ING Baring purchased 23,493 shares of Common
Stock from Paul Montrone ("Montrone") pursuant to a letter
agreement dated July 22, 1998 by and among the
Page 3 of 6
<PAGE> 4
Company and Montrone, a copy of which is attached as Exhibit 3
hereto and incorporated herein by reference, for an aggregate
purchase price of $193,817.25, or $8.25 per share.
On July 22, 1998, ING Baring purchased 813 shares of Common
Stock from Penates Foundation (the "Foundation") pursuant to a
letter agreement dated July 16, 1998 by and among the
Company and the Foundation, a copy of which is attached as
Exhibit 4 hereto and incorporated herein by reference, for an
aggregate purchase price of $6,707.25, or $8.25 per share.
As of the close of business on July 22, 1998, the Reporting
Person was the beneficial owner of 1,930,684 shares of Common
Stock of the Company, which constitute in the aggregate 16.21%
of the shares of Common Stock outstanding (based upon
11,906,378 shares of Common Stock outstanding as of April 30,
1998 as reported in the Issuer's Quarterly Report on Form 10Q
for the quarter ended March 31, 1998).
4. Item 7 is amended to delete the current Item 7 and replace it
with the following:
Exhibit 1- Letter Agreement dated July 16, 1998 by and among
the Company and Meister.
Exhibit 2- Letter Agreement dated July 16, 1998 by and among
the Company and Abex.
Exhibit 3- Letter Agreement dated July 16, 1998 by and among
the Company and Montrone.
Exhibit 4- Letter Agreement dated July 16, 1998 by and among
the Company and the Foundation.
Page 4 of 6
<PAGE> 5
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
July 23, 1998
ING BARING (U.S.) CAPITAL CORPORATION
By: /s/ William A. Austin
Name: William A. Austin
Title: General Counsel
Page 5 of 6
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page on Which
Exhibit Appears
---------------
<S> <C> <C>
Exhibit 1- Letter Agreement dated July 16, 1998 by and among the Company and Meister.
Exhibit 2- Letter Agreement dated July 16, 1998 by and among the Company and Abex.
Exhibit 3- Letter Agreement dated July 16, 1998 by and among the Company and Montrone.
Exhibit 4- Letter Agreement dated July 16, 1998 by and among the Company and the Foundation.
</TABLE>
Page 6 of 6
<PAGE> 1
PAUL M. MEISTER
Liberty Lane
Hampton, NH 03842
July 16, 1998
ING Baring (U.S.) Capital Corporation
230 Park Avenue
New York, NY 10169
Attn: P. R. Burnaman II
Dear Mr. Burnaman:
On the date of this letter agreement, the undersigned (together, "the
Seller") will sell, and the person or entity countersigning this letter as
"purchaser" (the "Purchaser") will purchase 3,583 shares of the common stock
(the "Shares") of California Communities, Inc. (the "Company"), for a cash
purchase price of $8.25 per share or a total of $29,559.75
In consideration of the foregoing, Seller acknowledges, and each of the
signatories hereto agrees, as to the following:
1. No Reliance; Assumption of Risk. Seller acknowledges that Purchaser may be
deemed to be an affiliate of the Company (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended). Seller further
acknowledges that Seller has been advised that Purchaser and the Company may
have confidential information concerning the Company's business and affairs
which is not public and may be considered material, including but not limited to
information relating to various alternatives, financial or otherwise, for the
Company (including, but not limited to, the sale or other disposition of all or
a portion of the equity or assets of the Company, one or more of the Company's
subsidiaries, a refinancing of all or a portion of the Company's existing
indebtedness, or the purchase, in the open market, in private transactions,
through tender offers or otherwise, of all or a portion of the outstanding
common stock, and/or any other of the Company's outstanding securities).
Recognizing the foregoing, Seller does not request, desire or require the
Company or Purchaser to disclose any information any confidential information
and specifically request the Company and Purchaser not to disclose any such
information relating the Shares or otherwise. In addition, Seller acknowledges
and agrees that (i) Seller initiated and still desires to consummate the sale of
the Shares to Purchaser, (ii) Seller is fully satisfied with the Purchase Price
and the Purchase Price is all that Seller is or will be entitled to receive for
the Shares, (iii) Seller is voluntarily assuming all risks associated with the
sale of the Shares and is not relying on any disclosure (or nondisclosure) made
(or not made) in connection with or arising out of the purchase of the Shares,
and (iv) Seller does not and will not have or assert any claims against the
Company, Purchaser or any of their respective affiliates for any additional
compensation or payments for any reason whatsoever, including by reason of or as
a result of the entering into or consummation by the Company or any of its
affiliates, including Purchaser or its affiliates, of any of the transactions
described above.
<PAGE> 2
2. Investigation. Seller has conducted its own investigation, to the
extent that Seller has determined necessary or desirable, in connection with its
sale of the Shares and has determined to enter into and complete such
transaction based on, among other things, such investigation.
3. Accredited Investor. Seller is an "accredited investor" as defined
in Rule 501 promulgated under the Securities Act of 1933, as amended, and is
sophisticated in matters relating to the valuation of securities and the
purchase and sale of securities. Seller is selling the Securities for its own
account.
4. Waives and Releases. (a) In further consideration for the sale of
the Shares, Seller, on behalf of itself and its heirs, executors,
administrators, devisees, trustees, partners, directors, officers, shareholders,
employees, consultants, representatives, predecessors, principals, agents,
parents, associates, affiliates, divisions, subsidiaries, attorneys,
accountants, successors, successors-in-interest and assignees (collectively, the
"Releasing Persons"), hereby waives and releases, to the fullest extent
permitted by law, any and all claims, rights and causes of action, whether known
or unknown (collectively, the "Claims"), that any of the Releasing Persons had,
has or may have against (i) the Purchaser, (ii) the Company, (iii) any of the
Purchaser's or the Company's respective current or former parents, shareholders,
affiliates, subsidiaries, divisions, predecessors or assigns, or (iv) any of the
Purchaser's, the Company's or such other persons' or entities' current or former
officers, directors, employees, consultants, spouses, heirs, estates, executors,
attorneys, auditors and associates and members of their immediate families
(collectively, the "Released Persons," arising out of or relating to any matter,
including, without limitation, any Claims against any of the Released Persons
relating to or arising out of (x) the transactions pursuant to which the Seller
originally purchased the shares, or (y) the purchase and sale of the Shares
contemplated by this letter agreement or (z) the nondisclosure of any
information,
(b) In consideration for the foregoing, each of the Purchaser and the
Company hereby waives and releases, to the fullest extent permitted by law, any
and all Claims that it had, has or may have against (i) the Seller, (ii) any of
the Seller's current or former parents, shareholders, affiliates, subsidiaries,
divisions, predecessors or assigns, or (iii) any of the Seller's or such other
persons' or entities' current or former officers, directors, employees,
consultants, spouses, heirs, estates, executors, attorneys, auditors and
associates and members of their immediate families, arising out of or relating
to the transactions pursuant to which the Seller originally purchased the
Shares, or (y) the purchase and sale of the Shares contemplated by this letter
agreement, except for claims arising out of the breach by Seller of any
representations, warranties or covenants contained herein.
<PAGE> 3
5. Governing Law, Counterparts. This letter agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
giving effect to the conflicts of laws principles thereof. This letter agreement
may be executed in Counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same
document.
Very truly yours,
Paul M. Meister
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
P. R. Burnaman II
Managing Director
<PAGE> 1
ABEX 1991 STOCK TRUST
Liberty Lane
Hampton, NH 03842
July 16, 1998
ING Baring (U.S.) Capital Corporation
230 Park Avenue
New York, NY 10169
Attn: P.R. Burnaman II
Dear Mr. Burnaman:
On the date of this letter agreement, the undersigned (together, "the
Seller") will sell, and the person or entity countersigning this letter as
"purchaser" (the "Purchaser") will purchase 235,852 shares of the common stock
(the "Shares") of California Communities, Inc. (the "Company"), for a cash
purchase per share of $8.25 per share or a total of $1,945,779.00.
In consideration of the foregoing, Seller acknowledges, and each of the
signatories hereto agrees, as to the following:
1. No Reliance; Assumption of Risk. Seller acknowledges that Purchaser
may be deemed to be an affiliate of the Company (as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended). Seller further acknowledges that Seller has been advised that
Purchaser and the Company may have confidential information concerning
the Company's business and affairs which is not public and may be
considered material, including but not limited to information relating
to various alternatives, financial or otherwise, for the Company
(including, but not limited to, the sale or other disposition of all or
a portion of the equity or assets of the Company, one or more of the
Company's subsidiaries, a refinancing of all or a portion of the
Company's existing indebtedness, or the purchase, in the open market,
in private transactions, through tender offers or otherwise, of all or
a portion of the outstanding common stock, and/or any other of the
Company's outstanding securities.) Recognizing the foregoing, Seller
does not request, desire or require the Company or Purchaser to
disclose any information any confidential information and specifically
request the Company and Purchaser not to disclose any such information
relating the Shares or otherwise. In addition, Seller acknowledges and
agrees that (i) Seller initiated and still desires to consummate the
sale of the Shares to Purchaser, (ii) Seller is fully satisfied with
the Purchase Price and the Purchase Price is all that Seller is or will
be entitled to receive for the Shares, (iii) Seller is voluntarily
assuming all risks associated with the sale of the Shares and is not
relying on any disclosure (or non-disclosure) made (or not made) in
connection with or arising out of the purchase of the Shares, and (iv)
Seller does not and will not have or assert any claims against the
Company, Purchaser or any of their respective affiliates for any
additional compensation or payments for any reason whatsoever,
including by reason of or as a result of the
<PAGE> 2
entering into or consummation by the Company or any of its affiliates,
including Purchaser or its affiliates, of any of the transactions
described above.
2. Investigation. Seller has conducted its own investigation, to the
extent that Seller has determined necessary or desirable, in connection
with its sale of the Shares and has determined to enter into and
complete such transaction based on, among other things, such
investigation.
3. Accredited Investor. Seller is an "accredited investor" as defined in
Rule 501 promulgated under the Securities Act of 1933, as amended, and
is sophisticated in matters relating to the valuation of securities and
the purchase and sale of securities. Seller is selling the Securities
for its own account.
4. Waives and Releases. (a) In further consideration for the sale of the
Shares, Seller, on behalf of itself and its heirs, executors,
administrators, devisees, trustees, partners, directors, officers,
shareholders, employees, consultants, representatives, predecessors,
principals, agents, parents, associates, affiliates, divisions,
subsidiaries, attorneys, accountants, successors,
successors-in-interest and assignees (collectively, the "Releasing
Persons"), hereby waives and releases, to the fullest extent permitted
by law, any and all claims, rights and causes of action, whether known
or unknown (collectively, the "Claims"), that any of the Releasing
Persons had, has or may have against (i) the Purchaser, (ii) the
Company, (iii) any of the Purchaser's or the Company's respective
current or former parents, shareholders, affiliates, subsidiaries,
divisions, predecessors or assigns, or (iv) any of the Purchaser's, the
Company's or such other persons' or entities' current or former
officers, directors, employees, consultants, spouses, heirs, estates,
executors, attorneys, auditors and associates and members of their
immediate families (collectively, the "Released Persons," arising out
of or relating to any matter, including, without limitation, any Claims
against any of the Released Persons relating to or arising out of (x)
the transactions pursuant to which the Seller originally purchased the
shares, or (y) the purchase and sale of the Shares contemplated by this
letter agreement or (z) the nondisclosure of any information.
(b) In consideration for the foregoing, each of the Purchaser and the
Company hereby waives and releases, to the fullest extent permitted by
law, any and all Claims that it had, has or may have against (i) the
Seller, (ii) any of the Seller's current or former parents,
shareholders, affiliates, subsidiaries, divisions, predecessors or
assigns, or (iii) any of the Seller's or such other persons' or
entities' current or former officers, directors, employees,
consultants, spouses, heirs, estates, executors, attorneys, auditors
and associates and members of their immediate families, arising out of
or relating to the transactions pursuant to which the Seller originally
purchased the Shares, or (y) the purchase and sale of the Shares
contemplated by this letter agreement, except for claims arising out of
the breach by Seller of any representations, warranties or covenants
contained herein.
5. Governing Law; Counterparts. This letter agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
without giving effect to the conflicts of laws principles thereof. This
letter agreement may be executed in
<PAGE> 3
counterparts, each of which shall be deemed to be an original, but all
of which, taken together, shall constitute one and the same document.
Very truly yours,
Paul M. Meister, Trustee
Abex 1992 Stock Trust
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
P. R. Burnaman II
Managing Director
<PAGE> 1
PAUL M. MONTRONE
Liberty Lane
Hampton, NH 03842
July 16, 1998
ING Baring (U.S.) Capital Corporation
230 Park Avenue
New York, NY 10169
Attn: P. R. Burnaman II
Dear Mr. Burnaman:
On the date of this letter agreement, the undersigned (together, "the
Seller") will sell, and the person or entity countersigning this letter as
"purchaser" (the "Purchaser") will purchase 23,493 shares of the common stock
(the "Shares") of California Communities, Inc. (the "Company"), for a cash
purchase price of $8.25 per share or a total of $193,817.25.
In consideration of the foregoing, Seller acknowledges, and each of the
signatories hereto agrees, as to the following:
1. No Reliance; Assumption of Risk. Seller acknowledges that Purchaser may
be deemed to be an affiliate of the Company (as such term is defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended).
Seller further acknowledges that Seller has been advised that Purchaser
and the Company may have confidential information concerning the
Company's business and affairs which is not public and may be
considered material, including but not limited to information relating
to various alternatives, financial or otherwise, for the Company
(including, but not limited to, the sale or other disposition of all or
a portion of the equity or assets of the Company, one or more of the
Company's subsidiaries, a refinancing of all or a portion of the
Company's existing indebtedness, or the purchase, in the open market,
in private transactions, through tender offers or otherwise, of all or
a portion of the outstanding common stock, and/or any other of the
Company's outstanding securities.) Recognizing the foregoing, Seller
does not request, desire or require the Company or Purchaser to
disclose any information any confidential information and specifically
request the Company and Purchaser not to disclose any such information
relating the Shares or otherwise. In addition, Seller acknowledges and
agrees that (i) Seller initiated and still desires to consummate the
sale of the Shares to Purchaser, (ii) Seller is fully satisfied with
the Purchase Price and the Purchase Price is all that Seller is or will
be entitled to receive for the Shares, (iii) Seller is voluntarily
assuming all risks associated with the sale of the Shares and is not
relying on any disclosure (or non-disclosure) made (or not made) in
connection with or arising out of the purchase of the Shares, and (iv)
Seller does not and will not have or assert any claims against the
Company, Purchaser or any of their respective affiliates for any
additional compensation or payments for any reason whatsoever,
including by reason of or as a result of the
<PAGE> 2
entering into or consummation by the Company or any of its affiliates,
including Purchaser or its affiliates, of any of the transactions
described above.
2. Investigation. Seller has conducted its own investigation, to the
extent that Seller has determined necessary or desirable, in connection
with its sale of the Shares and has determined to enter into and
complete such transaction based on, among other things, such
investigation.
3. Accredited Investor. Seller is an "accredited investor" as defined in
Rule 501 promulgated under the Securities Act of 1933, as amended, and
is sophisticated in matters relating to the valuation of securities and
the purchase and sale of securities. Seller is selling the Securities
for its own account.
4. Waives and Releases. (a) In further consideration for the sale of the
Shares, Seller, on behalf of itself and its heirs, executors,
administrators, devisees, trustees, partners, directors, officers,
shareholders, employees, consultants, representatives, predecessors,
principals, agents, parents, associates, affiliates, divisions,
subsidiaries, attorneys, accountants, successors,
successors-in-interest and assignees (collectively, the "Releasing
Persons"), hereby waives and releases, to the fullest extent permitted
by law, any and all claims, rights and causes of action, whether known
or unknown (collectively, the "Claims"), that any of the Releasing
Persons had, has or may have against (i) the Purchaser, (ii) the
Company, (iii) any of the Purchaser's or the Company's respective
current or former parents, shareholders, affiliates, subsidiaries,
divisions, predecessors or assigns, or (iv) any of the Purchaser's, the
Company's or such other persons' or entities' current or former
officers, directors, employees, consultants, spouses, heirs, estates,
executors, attorneys, auditors and associates and members of their
immediate families (collectively, the "Released Persons," arising out
of or relating to any matter, including, without limitation, any Claims
against any of the Released Persons relating to or arising out of (x)
the transactions pursuant to which the Seller originally purchased the
shares, or (y) the purchase and sale of the Shares contemplated by this
letter agreement or (z) the nondisclosure of any information.
(b) In consideration for the foregoing, each of the Purchaser and the
Company hereby waives and releases, to the fullest extent permitted by
law, any and all Claims that it had, has or may have against (i) the
Seller, (ii) any of the Seller's current or former parents,
shareholders, affiliates, subsidiaries, divisions, predecessors or
assigns, or (iii) any of the Seller's or such other persons' or
entities' current or former officers, directors, employees,
consultants, spouses, heirs, estates, executors, attorneys, auditors
and associates and members of their immediate families, arising out of
or relating to the transactions pursuant to which the Seller originally
purchased the Shares, or (y) the purchase and sale of the Shares
contemplated by this letter agreement, except for claims arising out of
the breach by Seller of any representations, warranties or covenants
contained herein.
5. Governing Law Counterparts. This letter agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
without giving effect to the conflicts of laws principles thereof. This
letter agreement may be executed in
<PAGE> 3
counterparts, each of which shall be deemed to be an original, but all
of which, taken together, shall constitute one and the same document.
Very truly yours,
Paul M. Montrone
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
P. R. Burnaman II
Managing Director
<PAGE> 1
PENATES FOUNDATION
Liberty Lane
Hampton, NH 03842
July 16, 1998
ING Baring (U.S.) Capital Corporation
230 Park Avenue
New York, NY 10169
Attn: P.R. Burnaman II
Dear Mr. Burnaman:
On the date of this letter agreement, the undersigned (together, "the
Seller") will sell, and the person or entity countersigning this letter as
"purchaser" (the "Purchaser") will purchase 813 shares of the common stock (the
"Shares") of California Communities, Inc. (the "Company"), for a cash purchase
price of $8.25 per share or a total of $6,707.25.
In consideration of the foregoing, Seller acknowledges, and each of the
signatories hereto agrees, as to the following:
1. No Reliance; Assumption of Risk. Seller acknowledges that Purchaser may
be deemed to be an affiliate of the Company (as such term is defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended).
Seller further acknowledges that Seller has been advised that Purchaser
and the Company may have confidential information concerning the
Company's business and affairs which is not public and may be
considered material, including but not limited to information relating
to various alternatives, financial or otherwise, for the Company
(including, but not limited to, the sale or other disposition of all or
a portion of the equity or assets of the Company, one or more of the
Company's subsidiaries, a refinancing of all or a portion of the
Company's existing indebtedness, or the purchase, in the open market,
in private transactions, through tender offers or otherwise, of all or
a portion of the outstanding common stock, and/or any other of the
Company's outstanding securities). Recognizing the foregoing, Seller
does not request, desire or require the Company or Purchaser to
disclose any information any confidential information and specifically
request the Company and Purchaser not to disclose any such information
relating the Shares or otherwise. In addition, Seller acknowledges and
agrees that (i) Seller initiated and still desires to consummate the
sale of the Shares to Purchaser, (ii) Seller is fully satisfied with
the Purchase Price and the Purchase Price is all that Seller is or will
be entitled to receive for the Shares, (iii) Seller is voluntarily
assuming all risks associated with the sale of the Shares and is not
relying on any disclosure (or nondisclosure) made (or not made) in
connection with or arising out of the purchase of the Shares, and (iv)
Seller does not and will not have or assert any claims against the
Company, Purchaser or any of their respective affiliates for any
additional compensation or payments for any reason whatsoever,
including by reason of or as a result of the entering into or
consummation by
<PAGE> 2
the Company or any of its affiliates, including Purchaser or its
affiliates, of any of the transactions described above.
2. Investigation. Seller has conducted its own investigation, to the
extent that Seller has determined necessary or desirable, in connection
with its sale of the Shares and has determined to enter into and
complete such transaction based on, among other things, such
investigation.
3. Accredited Investor. Seller is an "accredited investor" as defined in
Rule 501 promulgated under the Securities Act of 1933, as amended, and
is sophisticated in matters relating to the valuation of securities and
the purchase and sale of securities. Seller is selling the Securities
for its own account.
4. Waives and Releases. (a) In further consideration for the sale of the
Shares, Seller, on behalf of itself and its heirs, executors,
administrators, devisees, trustees, partners, directors, officers,
shareholders, employees, consultants, representatives, predecessors,
principals, agents, parents, associates, affiliates, divisions,
subsidiaries, attorneys, accountants, successors,
successors-in-interest and assignees (collectively, the "Releasing
Persons"), hereby waives and releases, to the fullest extent permitted
by law, any and all claims, rights and causes of action, whether known
or unknown (collectively, the "Claims"), that any of the Releasing
Persons had, has or may have against (i) the Purchaser, (ii) the
Company, (iii) any of the Purchaser's or the Company's respective
current or former parents, shareholders, affiliates, subsidiaries,
divisions, predecessors or assigns, or (iv) any of the Purchaser's, the
Company's or such other persons' or entities' current or former
officers, directors, employees, consultants, spouses, heirs, estates,
executors, attorneys, auditors and associates and members of their
immediate families (collectively, the "Released Persons," arising out
of or relating to any matter, including, without limitation, any Claims
against any of the Released Persons relating to or arising out of (x)
the transactions pursuant to which the Seller originally purchased the
shares, or (y) the purchase and sale of the Shares contemplated by this
letter agreement or (z) the nondisclosure of any information.
(b) In consideration for the foregoing, each of the Purchaser and the
Company hereby waives and releases, to the fullest extent permitted by
law, any and all Claims that it had, has or may have against (i) the
Seller, (ii) any of the Seller's current or former parents,
shareholders, affiliates, subsidiaries, divisions, predecessors or
assigns, or (iii) any of the Seller's or such other persons' or
entities' current or former officers, directors, employees,
consultants, spouses, heirs, estates, executors, attorneys, auditors
and associates and members of their immediate families, arising out of
or relating to the transactions pursuant to which the Seller originally
purchased the Shares, or (y) the purchase and sale of the Shares
contemplated by this letter agreement, except for claims arising out of
the breach by Seller of any representations, warranties or covenants
contained herein.
5. Governing Law; Counterparts. This letter agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
without giving effect to the conflicts of laws principles thereof. This
letter agreement may be executed in
<PAGE> 3
counterparts, each of which shall be deemed to be an original, but all
of which, taken together, shall constitute one and the same document.
Very truly yours,
Paul M. Montrone
Trustee
Accepted and Agreed to:
ING Baring (U.S.) Capital Corporation
By:_____________________________
P. R. Burnaman II
Managing Director
