SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
BCAM INTERNATIONAL, INC.
- ------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
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055293104
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(CUSIP Number)
Arthur H. Amron, Esq.
Wexford Management, LLC
411 West Putnam Avenue
Greenwich, Connecticut 06830
(203) 862-7000
- ------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
September 19, 1998, November 5, 1998 and March 4, 1999
- ------------------------------------------------------------------------------
(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 Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
(Continued on following pages)
(Page 1 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Impleo, LLC
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(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 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
NUMBER OF None
SHARES ------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 7,916,667 shares as of September 19, 1998,
EACH 3,515,000 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,916,667 shares as of September 19, 1998,
3,515,000 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 7,916,667
shares as of September 19, 1998, 3,515,000 shares as of November 5, 1998
and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 27.8% as of September
19, 1998, 14.6% as of November 5, 1998 and 0% as of March 4, 1999
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(14) Type of Reporting Person BK
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(Page 2 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Wexford Management, LLC
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) [_] (b) [X]
- --------------------------------------------------------------------------------
(3) SEC Use Only
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(4) Source of Funds AF
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(5) Check 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
Connecticut
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 7,916,667 shares as of September 19, 1998,
EACH 3,515,000 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,916,667 shares as of September 19, 1998,
3,515,000 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 7,916,667
shares as of September 19, 1998, 3,515,000 shares as of November 5, 1998
and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 27.8% as of September
19, 1998, 14.6% as of November 5, 1998 and 0% as of March 4, 1999
- --------------------------------------------------------------------------------
(14) Type of Reporting Person OO;IA
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(Page 3 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Wexford Special Situations 1997, LLP
- --------------------------------------------------------------------------------
(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 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
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,950,291.8 shares as of September 19, 1998,
EACH 2,197,929 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,950,291.8 shares as of September 19, 1998,
2,197,929 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,950,291.8 shares as of September 19, 1998, 2,197,929 shares
as of November 5, 1998 and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 19.4% as of
September 19, 1998, 9.69% as of November 5, 1998 and 0% as of
March 4, 1999
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(14) Type of Reporting Person PN
(Page 4 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Wexford Special Situations 1997 Institutional, LP
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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 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
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,383,041.7 shares as of September 19, 1998,
EACH 614,070.50 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,383,041.7 shares as of September 19,1998,
614,070.50 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,383,041.7 shares as of September 19, 1998, 614,070.50 shares
as of November 5, 1998 and no shares as of March 4, 1999
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
6.3% as of September 19, 1998, 2.90 % as of November 5, 1998, and 0% as
of March 4, 1999
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(14) Type of Reporting Person PN
(Page 5 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Wexford Spectrum Investors, LLC
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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 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
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,583.332.8 shares as of September 19, 1998,
EACH 702,960 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,583,332.8 shares as of September 19, 1998,
702,960 shares as of November 5, 1998 and no
shares as of March 4, 1999
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,583,332.8 shares as of September 19, 1998, 702,960 shares as
of November 5, 1998 and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
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(13) Percent of Class Represented by Amount in Row (11)
7.15% as of September 19, 1998, 3.3% as of November 5, 1998 and 0% as of
March 4, 1999
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(14) Type of Reporting Person OO
(Page 6 of 14 Pages)
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Charles E. Davidson
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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 AF
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(5) Check 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 United States of America
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7 SOLE VOTING POWER
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 7,916,667 shares as of September 19, 1998,
EACH 3,515,000 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,916,667 shares as of September 19, 1998,
3,515,000 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
7,916,667 shares as of September 19, 1998, 3,515,000 shares as
of November 5, 1998 and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
27.8% as of September 19, 1998, 14.6% as of November 5, 1998 and 0% as
of March 4, 1999
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(14) Type of Reporting Person IN
Page 7 of 14 Pages
<PAGE>
CUSIP No. 055293104
- --------------------
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Joseph M. Jacobs
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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 AF
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(5) Check 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 United States of America
Number of
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF None
SHARES -----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 7,916,667 shares as of September 19, 1998,
EACH 3,515,000 shares as of November 5, 1998 and
REPORTING no shares as of March 4, 1999
PERSON ------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
None
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,916,667 shares as of September 19, 1998,
3,515,000 shares as of November 5, 1998 and no
shares as of March 4, 1999
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
7,916,667 shares as of September 19, 1998, 3,515,000 shares as
of November 5, 1998 and no shares as of March 4, 1999
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
27.8% as of September 19, 1998, 14.6% as of November 5, 1998 and 0% as of
March 4, 1999
- --------------------------------------------------------------------------------
(14) Type of Reporting Person IN
Page 8 of 14 Pages
<PAGE>
This Amendment No. 2 to Schedule 13D is being filed on behalf of Impleo,
LLC ("Impleo"), Wexford Management LLC ("Wexford Management"), Wexford Special
Situations 1997, LP, Wexford Special Situations 1997 Institutional, LP, Wexford
Spectrum Investors LLC, Charles E. Davidson and Joseph N. Jacobs and amends the
statement dated October 30, 1997 as amended by the first amendment thereto dated
May 21, 1998 (the "Schedule 13D") with respect to the shares of common stock,
par value $.01 per share (the "Issuer's Common Stock"), of BCAM International,
Inc., a New York corporation (the "Issuer"). This Amendment No. 2 is filed in
order to amend Items 4, 5, 6 and 7. Unless otherwise indicated, all capitalized
terms used herein but not defined herein shall have the same meaning as set
forth in the Schedule 13D. This Amendment No. 2 is being filed pursuant to Rule
13d-2 of the General Rules and Regulations under the Securities and Exchange Act
of 1934 as amended. Only those items reported herein are amended. All other
items remain unchanged.
ITEM 4. PURPOSE OF TRANSACTION.
- ------- -----------------------
On September 19, 1998, pursuant to the terms of the Note Purchase
Agreement, the conversion feature associated with $5 Million face amount of the
Issuer's 10%/13% Convertible Subordinated Promissory Notes held by Impleo,
became exercisable. Upon the complete exercise of these notes, Impleo had the
right to acquire 6,250,000 shares of the Issuer's common stock.
On October 23, 1998, Impleo, R. Weil & Associates, 621 Partners, Strafe &
Co. f/b/o David M. Kirr, Strafe & Co. f/b/o Terry B. Marbach, Strafe & Co. f/b/o
Gregg T. Summerville, Joseph Schueller and Ralph E. Weil entered into an
agreement (the "KM Agreement") and simultaneously therewith, Impleo and the
Issuer entered into a stock purchase and restructuring agreement (the "Stock
Purchase and Restructuring Agreement").
Pursuant to the terms of the KM Agreement, Impleo agreed to purchase
333,333 warrant shares of the Issuer's Common Stock and certain of the Issuer's
10%/13% Convertible Subordinated Promissory Notes which, in the aggregate, had a
principal amount of $1,000,000, plus accrued interest thereon.
Pursuant to the terms of the Stock Purchase and Restructuring Agreement,
Impleo cancelled $3,780,000 of aggregate principal amount of the Issuer's
10%/13% Convertible Subordinated Promissory Notes and transferred to the Issuer
warrants to acquire 1,260,000 shares of the Issuer's Common Stock. The Stock
Purchase and Restructuring Agreement also provided, among other things, that
simultaneously with such cancellation and conveyance, Impleo and the Issuer
would enter into a Stock Purchase Agreement providing that subject to certain
conditions, Impleo would cancel the remaining approximate $2.2 million face
amount of the Issuers' 10%/13% Convertible Subordinated Promissory Notes payable
to Impleo and convey to the Issuer warrants to acquire 740,000 shares of the
Issuer's Common Stock. As part of the transactions contemplated by the Stock
Purchase and Restructuring Agreement, the Issuer and Impleo agreed to enter into
a Second Amendment to the Note Purchase Agreement dated as of September 19, 1997
and as amended by the First Amendment to said agreement dated April 14, 1998
whereby Impleo agreed to surrender its right to nominate and/or appoint
one-quarter of the Issuer's Board of Directors.
(Page 9 of 14 Pages)
<PAGE>
On November 5, 1998 the transactions contemplated by the Stock Purchase and
Restructuring Agreement and the KM Agreement were consummated.
On March 4, 1999, the transactions contemplated by the Stock Purchase
Agreement was consummated.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of September 19, 1998, November 5, 1998 and March 4, 1999
Impleo was the registered holder of warrants and convertible notes to acquire
7,916,667 shares, 3,515,000 shares and 0 shares respectively of the Issuer's
Common Stock, which by their terms were then exercisable. Such shares of common
stock then represented respectively approximately 27.8%, 14.6% and 0% of the
Issuer's Common Stock outstanding.
As of September 19, 1998, each of Wexford Management, Charles
Davidson and Joseph Jacobs may have been deemed the beneficial owners of
warrants and convertible notes then exercisable for 7,916,667 shares of the
Issuer's Common Stock held for the account of Impleo, which then represented
approximately 27.8% of the Issuer's Common Stock. Wexford Special Situations
1997, LP, Wexford Special Situations 1997 Institutional, LP and Wexford Spectrum
Investors LLC, as members of Impleo, may have been deemed, respectively, the
beneficial owners of warrants and convertible notes then exercisable for
4,950,291, 1,383,041 and 1,583,332 shares of the Issuer's Common Stock held for
the account of Impleo, which then represented, respectively, approximately
19.4%, 6.3% and 7.15% of the Issuer's Common Stock outstanding.
As of November 5, 1998, each of Wexford Management, Charles
Davidson and Joseph Jacobs may have been deemed the beneficial owners of
warrants for 3,515,000 shares of the Issuer's Common Stock held for the account
of Impleo, which then represented approximately 14.6% of the Issuer's Common
Stock. Each of Wexford Special Situations 1997, LP, Wexford Special Situations
1997 Institutional, LP and Wexford Spectrum Investors LLC, as members of Impleo,
may have been deemed, respectively, the beneficial owners of warrants and
convertible notes exercisable for 2,197,929, 614,070 and 702,960 shares of the
Issuer's Common Stock held for the account of Impleo which then represented,
respectively, approximately 9.65%, 2.9% and 3.30% of the Issuer's Common Stock
outstanding.
As of March 4, 1999 neither Wexford Management, Charles
Davidson, Joseph Jacobs, Wexford Special Situations 1997, LP, Wexford Special
Situations 1997 Institutional, LP nor Wexford Spectrum Investors LLC, may have
been deemed the beneficial owners of shares of the Issuer's Common Stock.
(b) Pursuant to the terms of contracts relating to Impleo, Wexford
Special Situations 1997, LP, Wexford Special Situations 1997 Institutional, LP
and Wexford Spectrum Investors LLC and as a result of the positions held by Mr.
Davidson and Mr. Jacobs with Wexford Management, each of Impleo, Wexford
Management, Mr. Davidson and Mr. Jacobs may have been deemed to have shared
power to direct the disposition and (upon conversion) voting of the warrants and
convertible notes then held for the account of Impleo. As of September 19, 1998,
November 5, 1998 and March 4, 1999, each of Wexford Management,
(Page 10 of 14 Pages)
<PAGE>
Charles Davidson and Joseph Jacobs may have been deemed to have shared power to
direct the disposition and (upon conversion) voting of warrants and convertible
notes exercisable for 7,916,607, 3,515,000 and 0 shares respectively, of the
Issuer's Common Stock outstanding held for the account of Impleo.
As of September 19, 1998, each of Wexford Special Situations
1997, LP, Wexford Special Situations 1997 Institutional, LP and Wexford Spectrum
Investors LLC as members of Impleo, may have been deemed to have shared power to
direct the disposition and (upon conversion) voting of warrants and convertible
notes then exercisable for 4,950,291, 1,383,041 and 1,583,332 shares
respectively, of the Issuer's Common Stock outstanding held for the account of
Impleo.
As of November 5, 1998, each of Wexford Special Situations
1997, LP, Wexford Special Situations 1997 Institutional, LP and Wexford Spectrum
Investors LLC as members of Impleo, may have been deemed to have shared power to
direct the disposition and (upon conversion) voting of the warrants and
convertible notes then exercisable for 2,197,929, 614,070 and 702,960 shares
respectively, of the Issuer's Common Stock outstanding held for the account of
Impleo.
As of March 4, 1999, neither Wexford Special Situations 1997, LP,
Wexford Special Situations 1997 Institutional, LP nor Wexford Spectrum Investors
LLC, as members of Impleo, may be deemed to have shared power to direct the
disposition or voting of warrants or convertible notes exercisable for shares of
the Issuer's Common Stock.
(c) Except for the transactions referred to in Item 4 above, there
have not been any transactions with respect to the Issuer's Common Stock within
60 days prior to the dates of September 19, 1998, November 5, 1998 and March 4,
1999 by any of the reporting persons referred to herein or at any other time
thereafter.
(d) Prior to their ceasing to be beneficial owners of the Issuer's
Common Stock, the partners and members of Wexford Special Situations 1997, LP,
Wexford Special Situations 1997 Institutional, LP and Wexford Spectrum Investors
LLC had the right to participate (upon conversion) in the receipt of dividends
from, or proceeds from the sale of, the warrants and convertible notes held for
the account of Impleo in accordance with their ownership interests in those
respective entities.
(e) On November 5, 1998, each of Wexford Special Situations 1997
Institutional, LP, and Wexford Spectrum Investors, LLC, and on March 5, 1999,
each of Impleo, Wexford Management, Wexford Special Situations 1997, LLP,
Charles E. Davidson and Joseph M. Jacobs ceased to be the beneficial owners of
more than 5% of the Issuer's Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
-----------------------------------
As of March 4, 1999, there were no contracts, arrangements, understandings
or relationships, legal or otherwise, among the persons named in Item 2 hereof
and between such persons and any person with respect to any securities of the
Issuer.
(Page 11 of 14 Pages)
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
- ------- --------------------------------
Exhibit A KM Agreement by and among Impleo, LLC, R. Weil &
Associates, 621 Partners, Strafe & Co. f/b/o David M.
Kirr, Strafe & Co. f/b/o Terry B. Marbach, Strafe &
Co. f/b/o Gregg T. Summerville, Joseph Schueller and
Ralph E. Weil
Exhibit B Stock Purchase and Restructuring Agreement dated
October 23, 1998
Exhibit C Purchase and Sale Agreement dated October 23, 1998
Exhibit D Second Amendment to the Note Purchase Agreement dated
October 23, 1998
(Page 12 of 14 Pages)
<PAGE>
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.
December 15, 1999
IMPLEO LLC
By: /s/ Arthur Amron
----------------------------------------
Arthur Amron, Vice President
WEXFORD MANAGEMENT LLC
By: /s/ Arthur Amron
----------------------------------------
Arthur Amron, Senior Vice President
WEXFORD SPECIAL SITUATIONS 1997, LP
By: Wexford '97 Advisors, LLC, General
Partner
By: /s/ Arthur Amron
----------------------------------------
Arthur Amron, Vice President
WEXFORD SPECIAL SITUATIONS 1997
INSTITUTIONAL, LP
By Wexford '97 Advisors, LLC, General
Partner
By: /s/ Arthur Amron
----------------------------------------
Arthur Amron, Vice President
WEXFORD SPECTRUM INVESTORS LLC
By: /s/ Arthur Amron
----------------------------------------
Arthur Amron, Vice President
/s/ Charles E. Davidson
----------------------------------------
Charles E. Davidson
/s/ Joseph M. Jacobs
----------------------------------------
Joseph M. Jacobs
(Page 13 of 14 Pages)
<PAGE>
Index of Exhibits
-----------------
Exhibit A KM Agreement by and among Impleo, LLC, R. Weil & Associates, 621
Partners, Strafe & Co. f/b/o David M. Kirr, Strafe & Co. f/b/o
Terry B. Marbach, Strafe & Co. f/b/o Gregg T. Summerville, Joseph
Schueller and Ralph E. Weil
Exhibit B Stock Purchase and Restructuring Agreement dated October 23, 1998
Exhibit C Purchase and Sale Agreement dated October 23, 1998
Exhibit D Second Amendment to the Note Purchase Agreement dated October 23,
1998
(Page 14 of 14 Pages)
<PAGE>
Exhibit A
---------
IMPLEO, LLC
c/o WEXFORD MANAGEMENT, LLC
411 West Putnam Avenue
Greenwich, Connecticut 06830
October 23, 1998
R. Weil & Associates
621 Partners
Strafe & Co. f/b/o
David M. Kirr
Strafe & Co. f/b/o
Terry B. Marbach
Strafe & Co. f/b/o
Gregg T. Summerville
Joseph Schueller
Ralph E. Weil
Re: Letter Agreement regarding the Transfer to Impleo, LLC (the "Company")
of certain BCAM 10%/13% Convertible Notes aggregating $1,000,000 in
principal amount, BCAM Warrants, 28.4971 shares of common stock of Drew
Shoe Corporation and 16.667 shares of common stock of BCAM
Technologies, Inc.
Dear Sirs:
In connection with our recent conversation regarding the above-referenced
transaction (the "Transaction"), I am writing you for purposes of memorializing
our understanding of the terms of the Transaction. These terms are as follows:
R. Weil & Associates -- 621 Partners, Strafe & Company, f/b/o David M.
Kirr, Strafe & Company f/b/o Terry B. Marbach, and Strafe and Company, f/b/o
Gregg T. Summerville, Ralph E. Weil and Joseph Schueller (collectively, the
"Sellers") are each the owner of (a) a certain 10%/13% convertible subordinated
promissory note which notes, in the aggregate, have a principal amount of
$1,000,000, plus accrued interest thereon (the "Notes") issued by BCAM
International, Inc., a New York corporation ("BCAM"); (b) certain warrants which
warrants, in the aggregate, allow for the purchase of 333,333 shares of $.01 par
value common stock (the "Warrants") of BCAM (which Notes and Warrants are
detailed on Exhibit A attached hereto), and (c) certain shares of stock which in
the aggregate are comprised of 28.4971 shares, without par value, of the common
stock of Drew Shoe Corporation, an Ohio Corporation ("Drew Shoe") and 16.667
shares of common stock of BCAM Technologies, Inc., a New York Corporation
(hereinafter collectively referred to as the "Stock"). Pursuant to this
Agreement, the Sellers will
<PAGE>
sell to the Company, and the Company will purchase
from the Sellers, subject to, and simultaneous with the closing of the "BCAM
Transaction" described below, on or before October 23, 1998 or such later date
of closing of the BCAM Transaction as the Company and BCAM may agree to (which
date may not be later than November 23, 1998), all of the Sellers' right, title
and interest in and to the Note, the Warrants and the Stock for the aggregate
sum of $1,000,000, plus $112,910.50, the amount equal to the accrued interest on
the Note, payable in immediately available funds (the "Consideration") at the
closing of the Transaction. Against delivery of the Consideration, the Sellers
shall deliver to the Company the certificates representing the Stock, duly
endorsed for transfer or accompanied by stock powers executed in blank for
transfer, the Notes, the Warrants and any other documentation reasonably
requested by the Company to evidence the Sellers' transfer of its right title
and interest in and to the Stock, Notes and Warrants.
As you know, the Company anticipates entering into a Stock Purchase and
Restructuring Agreement with BCAM, pursuant to which agreement, the Company will
acquire, amongst other things, 63% of BCAM's 90% interest in the issued and
outstanding shares of Drew Shoe Common Stock, in exchange for the Company's
cancellation of certain indebtedness owed to the Company by BCAM (the "BCAM
Transaction"). Additionally, as indicated to you, that Stock Purchase and
Restructuring Agreement and the BCAM Transaction contemplates the simultaneous
closing of the BCAM Transaction and the Transaction contemplated hereby.
Accordingly, in the event the Company is unable to consummate the BCAM
Transaction, the Company shall have no further obligations hereunder.
In order to induce the Company to consummate the Transaction, the Sellers
hereby represent and warrant to the Company that, on the date hereof and at the
time of closing, (a) the Sellers collectively are the valid and lawful record
and beneficial owners of the Notes, the Warrants and the Stock; (b) the Stock
has been duly authorized and validly issued and is fully paid and
non-assessable; (c) the Sellers' right, title and interest in and to the Notes,
Warrants and Stock are free and clear of all pledges, liens, claims, charges,
options, calls, encumbrances, restrictions and assessments whatsoever, other
than restrictions by operation of state or federal securities laws; (d) upon
consummation of the Transaction, the Company shall receive from the Sellers
good, valid and marketable title to all of the Notes, Warrants and Stock, free
and clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever, other than restrictions which may be
created by operation of state or federal securities laws; (e) the Sellers have
the full legal right, power and authority to execute and deliver this agreement
and to consummate the Transaction contemplated hereby, which legal right
includes the Sellers' having taken all necessary corporate action to the extent
applicable to authorize execution and delivery of this agreement and the
consummation of the Transaction contemplated hereby; and (f) the execution,
delivery and performance by the Sellers of this agreement and the Transaction
hereunder does not conflict with or constitute a breach of any agreement or
commitment to which any of the Sellers is a party or by which any of them or any
of their assets is bound or subject.
The Sellers further agree that they shall jointly and severally defend,
indemnify and hold harmless the Company from, against and in respect of any and
all claims, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorneys' fees, that the Company may incur, sustain or suffer as a result of
any
2
<PAGE>
breach of, or failure by the Sellers to perform, any of the representations,
warranties, covenants or agreements of the Sellers contained in this Agreement.
In order to induce the Sellers to consummate the Transaction, the Company
hereby represents and warrants to the Sellers that it is purchasing the Stock
for its own account for investment, and not with a view to the resale or
distribution thereof in violation of any applicable securities laws.
With respect to the interpretation of this Agreement, it is agreed that
this Agreement shall be construed and interpreted and the rights granted herein
governed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State. No amendment or
modification of this Agreement shall be valid unless made in writing and signed
by or on behalf of the party to be charged therewith.
In the event any one or more of the persons comprising the Seller fail to
execute this Agreement, the Transaction shall be consummated by the Company and
such other persons named as parties to this Agreement (who execute this
Agreement), provided, however that the Company will not acquire the notes and
warrants of any non-executing person, and the Company will not be required to
pay such non-executing person's share of the purchase price hereunder (the face
value, as indicated on Exhibit A, of such person's note plus accrued interest,
at the rate of 10% per annum, thereon) until such time as such person executes
this Agreement and tenders his note and warrants. In the event such
non-executing person fails to tender his notes and warrants within 30 days from
the date hereof, such person shall have no further rights hereunder.
3
<PAGE>
Kindly confirm your agreement to the foregoing by countersigning a
counterpart copy of this letter in the space provided below.
Very truly yours,
Impleo, LLC
By: Wexford Managment LLC
its manager
By: /s/ Kenneth A. Rubin
-------------------------
Kenneth A. Rubin
Acknowledged, confirmed and agreed to:
/s/ R. Weil & Associates
- -----------------------------
R. Weil & Associates
/s/ 621 Partners
- -----------------------------
621 Partners
/s/ David M. Kirr
- -----------------------------
Strafe & Co. f/b/o
David M. Kirr
/s/ Terry B. Marback
- -----------------------------
Strafe & Co. f/b/o
Terry B. Marbach
/s/ Gregg T. Summerville
- -----------------------------
Strafe & Co. f/b/o
Gregg T. Summerville
/s/ Ralph E. Weill
- -----------------------------
Ralph E. Weill
/s/ Joseph Schueller
- -----------------------------
Joseph Schueller
4
<PAGE>
EXHIBIT A
---------
INDEX OF NOTES AND WARRANTS
---------------------------
<TABLE>
<CAPTION>
<S> <C> <C>
Seller's Name Principal Amount of Note Warrant Shares
- ------------- ------------------------ --------------
R. Weill & Associates ................... $ 155,000 51,667
621 Partners ............................ $ 150,000 50,000
Strafe & Co. f/b/o
David M. Kirr ......................... $ 165,000 55,000
Strafe & Co. f/b/o
Terry B. Marbach ...................... $ 165,000 55,000
Strafe & Co. f/b/o
Gregg T. Summerville .................. $ 165,000 55,000
Joseph Schueller ........................ $ 100,000 33,333
Ralph E. Weil ........................... $ 100,000 33,333
---------- ----------
Totals ...................... $1,000,000* 333,333
========== ==========
</TABLE>
*Each sellers allocable share of the purchase price hereunder shall equal
the face amount of his note, plus accrued interest thereon (at the rate of 10%
per annum).
5
<PAGE>
EXHIBIT B
---------
STOCK PURCHASE AND RESTRUCTURING AGREEMENT
------------------------------------------
STOCK PURCHASE AND RESTRUCTURING AGREEMENT (this "Agreement"), entered into
as of this 23rd day of October, 1998, by and between IMPLEO, LLC, a Delaware
limited liability company (the "Buyer" or "Impleo"), and BCAM INTERNATIONAL,
INC., a New York Corporation, ("BCAM");
W I T N E S S E T H:
--------------------
WHEREAS, BCAM is the record and beneficial owner of 1538.846 shares of
common stock, without par value, of Drew Shoe Corporation ("Drew"), an Ohio
corporation (the "Drew Common Stock") which represents 90% of the issued and
outstanding shares of Drew Common Stock;
WHEREAS, pursuant to a Note Purchase Agreement dated September 19, 1997 and
amended by a First Amendment to said agreement dated April 14, 1998, BCAM issued
to the Buyer, the Buyer purchased a BCAM 10%/13% convertible subordinated
promissory note in the aggregate principal amount of $5,000,000, plus accrued
interest thereon (the "$5 Million Note") and 1,666,667 warrants to purchase an
aggregate of 1,666,667 Shares of common stock of BCAM, $.01 par value per share
("BCAM Common Stock");
WHEREAS, pursuant to a third party transaction, the Buyer will, at the time
of the Closing hereunder acquire, among other things, (a) certain warrants to
purchase 333,333 Shares of BCAM Common Stock (which warrants, together with the
warrants referred to in the previous recital, are hereinafter referred to as the
"Warrants") and (b) certain additional BCAM 10%/13% Convertible Subordinated
Promissory Notes which notes, in the aggregate equal the principal amount of
$1,000,000, plus accrued interest thereon (the "$1 Million Notes," which,
together with the $5 Million Note, is hereinafter collectively referred to as
the "Subject Notes");
WHEREAS, BCAM wishes to transfer to the Buyer 63% of the Drew Common Stock
owned by BCAM in exchange for the cancellation of $3,780,000 of the aggregate
principal amount of the debt evidenced by the Subject Notes, and certain other
good and valuable consideration as more particularly provided for herein; and
WHEREAS, the Buyer desires to purchase from BCAM and BCAM desires to sell
to the Buyer, all upon the terms and subject to the conditions set forth in this
Agreement, 63% of the Drew Common Stock owned by BCAM.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. ACQUISITION OF THE STOCK.
------------------------
1.1 Stock Purchase. Subject to the terms and conditions of this
Agreement, on the Closing Date (as such term is hereinafter defined), the Buyer
shall purchase and acquire from BCAM, and BCAM shall sell and transfer to the
Buyer, 969.47298 shares of the Drew Common
1
<PAGE>
Stock (such shares being hereinafter collectively referred to as the "Subject
Stock"), for the consideration provided for in Section 2 below. In furtherance
thereof, BCAM shall, on the Closing Date, against delivery of such consideration
in accordance with Section 2 below, deliver to the Buyer the certificates
representing the Subject Stock, duly endorsed for transfer or accompanied by
stock powers executed in blank for transfer.
2. CONSIDERATION/DELIVERIES AT CLOSING.
-----------------------------------
At the Closing:
2.1 Purchase Price. The Buyer shall effectuate its cancellation of
$3,780,000 of indebtedness evidenced by the Subject Notes by delivering the
Subject Notes to BCAM for cancellation, and BCAM shall evidence its remaining
$3,073,663.90 indebtedness to the Buyer under the Subject Notes ($2,220,000 of
existing principal indebtedness plus $853,663.90 of accrued interest) by
executing and delivering to the Buyer a promissory note in the form attached
hereto as Exhibit A (the "Replacement Note").
2.2 Warrants. Buyer shall effectuate its cancellation of 63% of the
Warrants (1,260,000 Warrants) by delivering to BCAM for cancellation the warrant
certificates representing the Warrants, against delivery by BCAM to Buyer of a
new warrant certificate (in substantially the form of the surrendered warrant
certificates) in the amount of 740,000 Warrants (the "Remaining Warrants").
2.3 Shareholder Agreement. BCAM and the Buyer shall enter into a
Shareholders' Agreement in the form attached hereto as Exhibit B (the
"Shareholders' Agreement").
2.4 Voting Rights. BCAM and the Buyer shall enter into a Second
Amendment to the Note Purchase Agreement dated as of September 19, 1997 and as
amended by the First Amendment to said agreement dated April 14, 1998
(hereinafter collectively referred to as the "Purchase Agreement"), which Second
Amendment shall provide for the partial deletion of Section 4.1 of the Purchase
Agreement, to the extent necessary, to effectuate the Buyer's surrender of its
rights to nominate and/or appoint one-quarter of BCAM's Board of Directors.
2.5 Employment Agreement. BCAM shall cause Drew Shoe to enter into
and deliver an employment agreement with Michael Strauss, an individual and the
present chairman and chief executive officer of BCAM, in a form acceptable to
Impleo (the "Drew Shoe Employment Agreement", the "Drew Shoe Employment
Agreement"). In connection with said employment agreement, BCAM agrees to amend
its current employment agreement with Strauss, which agreement is dated January
1, 1997 (the "BCAM Employment Agreement"), to provide that Strauss' employment
by Drew Shoe, as contemplated by the Drew Shoe Employment Agreement, shall be
permissible under, and shall not be deemed as a breach by Strauss of his
obligations contained in, the BCAM Employment Agreement..
2.6 Purchase and Sale Agreement. The parties shall enter into a
purchase and sale agreement in the form attached hereto as Exhibit C (the
"Purchase and Sale Agreement").
2
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF BCAM.
--------------------------------------
In connection with the sale of the Subject Stock to the Buyer,
BCAM hereby represents and warrants to the Buyer as follows:
3.1 Title to the Stock. BCAM is the valid and lawful record and
beneficial owner of all of the Subject Stock, all of which has been duly
authorized and validly issued and is fully paid and non-assessable, and is free
and clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever other than (a) the outstanding pledge
thereof to the Buyer, and (b) restrictions which may be created by operation of
state or federal securities laws. On the Closing Date, the Buyer shall receive
from BCAM good, valid and marketable title to all of the Subject Stock, free and
clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever, other than the above-referenced pledge
and securities law restrictions.
3.2 Valid and Binding Agreement; No Breach. (a) BCAM has full legal
right, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. BCAM has taken all necessary
corporate action to authorize its execution and delivery of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement and the
consummation of the transactions contemplated hereby and thereby. This Agreement
and, when executed and delivered by BCAM, the Replacement Note, the Remaining
Warrants and the Shareholders' Agreement, constitutes and will constitute the
legal, valid and binding obligations of BCAM, enforceable against BCAM in
accordance with their respective terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally, and except that the remedy of
specific performance or similar equitable relief is available only at the
discretion of the court before which enforcement is sought.
(b) Neither the execution and delivery of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement by
BCAM, nor compliance with the terms and provisions of this Agreement, the
Replacement Note, the Remaining Warrants and the Shareholders' Agreement on the
part of BCAM, will: (i) violate any statute or regulation of any governmental
authority, domestic or foreign, applicable to BCAM; (ii) require the issuance of
any authorization, license, consent or approval of any federal or state
governmental agency, or any other person; or (iii) except for the pledge of the
Subject Stock in favor of the Buyer, conflict with or result in a breach of any
of the terms, conditions or provisions of any judgment, order, injunction,
decree, note, indenture, loan agreement or other agreement or instrument to
which BCAM is a party, or by which BCAM is bound, or constitute a default
thereunder.
3.3 Organization, Good Standing and Qualification. BCAM is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, with full corporate power and authority to own its
assets and conduct its business as owned and conducted on the date hereof.
3
<PAGE>
3.4 Equity Ownership. The Drew Common Stock to be transferred to the
Buyer hereunder constitute not less than 56.7% of the total issued and
outstanding capital stock of Drew Shoe, on a fully diluted basis (after giving
effect to the exercise or conversion of any and all outstanding options,
warrants, convertible securities, subscription rights or other rights to acquire
any capital stock of Drew Shoe). For purposes of this representation and
warranty, Strauss' Options contained in the Drew Shoe Employment Agreement shall
be disregarded.
3.5 Litigation. There is no suit, action, arbitration, or legal,
administrative or other proceeding, or governmental investigation pending or, to
the best knowledge of BCAM, threatened against BCAM which would in any manner
prohibit, restrain, impair or otherwise adversely affect the ability of BCAM to
convey free and clear title to the Subject Stock in accordance with this
Agreement.
3.6 Financial Statements. Attached hereto as Exhibit 3.6 is Drew
Shoe's Balance Sheet as of August 31, 1998 and the Statement of Operations for
the month and eight months then ended. Other than misstatements relating to the
overstatement of inventories by no more than $200,000 and the failure to record
a contingent liability for that certain law suit captioned Ulin & Holland v.
Drew Shoe Corporation, (U.S. District Court- Massachusetts, Docket # GA98-10109
RCL), these Financial Statements have all been prepared in accordance with
Generally Accepted Accounting Principals, consistently applied, and presents
fairly the financial position of Drew Shoe at August 31, 1998 and its income for
the eight months then ended. As of August 31, 1998 Drew Shoe has neither
declared nor paid a dividend, or entered into any related party transactions
with an "Affiliate" (other than with BCAM in the ordinary course of business and
in accordance with past customs), as that term is defined in Federal Securities
Laws or entered into any transaction outside of its ordinary course of business.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
-------------------------------------------
In connection with the Buyer's purchase of the Subject Stock from
BCAM, the Buyer hereby represents and warrants to BCAM as follows:
4.1 Valid and Binding Agreement. This Agreement and, when executed
and delivered by the Buyer, the Shareholders' Agreement, constitutes and will
constitute the legal, valid and binding obligations of the Buyer, enforceable
against the Buyer in accordance with their respective terms, except to the
extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, and except
that the remedy of specific performance or similar equitable relief is available
only at the discretion of the court before which enforcement is sought. The
Buyer has taken all necessary company action to authorize its execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
4.2 Organization, Good Standing and Qualification. The Buyer is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full power and authority to own
its assets and conduct its business as owned and conducted on the date hereof.
4
<PAGE>
4.3 No Breach of Statute or Contract. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; or (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder.
4.4 Investment. The Buyer is purchasing the Subject Stock for its own
account for investment, and not with a view to the resale or distribution
thereof in violation of any applicable securities laws.
4.5 Disclaimer. The Buyer acknowledges that BCAM has not made any
representations or warranties relating to the value of the Drew Common Stock
transferred herein or the Business prospects of Drew.
5. BCAM'S OBLIGATIONS BEFORE THE CLOSING DATE.
------------------------------------------
BCAM covenants and agrees that, between the date hereof and the Closing
Date:
5.1 Access to Information. BCAM, as the 90% shareholder of Drew Shoe,
shall cause, to the fullest extent permissible by law, Drew Shoe to permit the
Buyer and its counsel, accountants and other representatives, upon reasonable
advance notice to Drew Shoe, during normal business hours and without undue
disruption of the business of the Drew Shoe, to have reasonable access to all
assets, properties, books, accounts, records, contracts, documents and
information relating to Drew Shoe, and BCAM shall cooperate with the Buyer and
its representatives in all respects in connection with all due diligence which
the Buyer and its representatives may undertake in connection with the
transactions contemplated by this Agreement.
5.2 Conduct of Business in Normal Course. BCAM, as the 90%
shareholder of Drew Shoe shall have caused Drew Shoe to carry on their business
activities in substantially the same manner as heretofore conducted, and not to
make or institute any unusual or novel methods of service, sale, purchase,
lease, management, accounting or operation that will vary materially from those
methods used by such company as of the date hereof, without in each instance
obtaining the prior written consent of the Buyer.
5.3 Corporate Matters. BCAM, as the 90% shareholder of Drew Shoe, to
the fullest extent permissible by law, shall use its best efforts not to allow
Drew Shoe to:
(a) amend its Certificate of Incorporation or By-Laws;
(b) issue any shares of such company's capital stock;
5
<PAGE>
(c) issue or create any warrants, obligations, subscriptions,
options, convertible securities or other commitments under which any additional
shares of such company's capital stock might be directly or indirectly issued;
(d) amend, cancel or modify any material contract or enter into
any material new agreement, commitment or transaction except, in each instance,
in the ordinary course of business;
(e) pay, grant or authorize any salary increases or bonuses
except in the ordinary course of business and consistent with past practice, or
enter into any employment, consulting or management agreements;
(f) modify in any material respect any material agreement to
which such company is a party or by which it may be bound, except in the
ordinary course of business;
(g) make any change in such company's management personnel;
(h) except pursuant to commitments in effect on the date hereof,
make any capital expenditure(s) or commitment(s), whether by means of purchase,
lease or otherwise, or any operating lease commitment(s), in excess of $5,000 in
the aggregate;
(i) sell, assign or dispose of any capital asset(s) with a net
book value in excess of $5,000 as to any one item or $10,000 in the aggregate;
(j) materially change its method of collection of accounts or
notes receivable, accelerate or slow its payment of accounts payable, or prepay
any of its obligations or liabilities, other than prepayments to take advantage
of trade discounts not otherwise inconsistent with or in excess of historical
prepayment practices;
(k) declare, pay, set aside or make any dividend(s) or other
distribution(s) of cash or other property, or redeem any outstanding shares of
either company's capital stock;
(l) incur any liability or indebtedness except, in each instance,
in the ordinary course of business;
(m) subject any of the assets or properties of either company to
any liens or encumbrances not in existence on the date hereof;
(n) forgive any liability or indebtedness owed to either company
by BCAM or any of its affiliates; or
(o) agree to do, or take any action in furtherance of, any of the
foregoing.
6
<PAGE>
To the extent that any one or more of the events described in Section 5.3 (a)
through (o) shall occur and BCAM, its officers or directors are or become
aware of such occurrence, BCAM shall immediately notify the Buyer of such
occurrence.
5.4 Absence of Litigation. No action, suit or proceeding by or before
any court or any governmental body or authority, against BCAM or pertaining to
the transactions contemplated by this Agreement or their consummation, shall be
pending or threatened on the Closing Date, which action, suit or proceeding
would, if determined adversely, prohibit, restrain or impair the consummation of
the transactions contemplated by this Agreement, or have a material adverse
effect on Drew Shoe, its business or any material portion of its assets.
5.5 Consents and Releases. All necessary disclosures to and
agreements and consents of (a) any parties to any material contracts and/or any
licensing authorities which are material to Drew Shoe's business and (b) any
governmental authorities or agencies to the extent required in connection with
the transactions contemplated by this Agreement, shall have been obtained and
true and complete copies thereof delivered to the Buyer. Without limitation of
the foregoing, the Buyer shall have received the written consent of Bank One,
National Association, a creditor and secured party of Drew Shoe, with respect to
the transactions contemplated by this Agreement, and the transfer of the Subject
Stock to the Buyer hereunder.
5.6 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incidental thereto, shall
be reasonably satisfactory in form and substance to the Buyer and its counsel.
6. CONDITIONS PRECEDENT TO THE BUYER'S PERFORMANCE.
----------------------------------------------
The obligations of the Buyer to consummate the transactions
contemplated by this Agreement are further subject to the satisfaction, at or
before the Closing Date, of all of the following conditions, any one or more
of which may be waived in writing by the Buyer:
6.1 Accuracy of Representations and Warranties. All representations
and warranties made by BCAM in this Agreement and/or in any written statement
delivered to the Buyer under this Agreement shall be true and correct in all
respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
6.2 Performance. BCAM shall have performed, satisfied and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed, satisfied or complied with by BCAM on or before the Closing Date.
6.3 Certification. The Buyer shall have received a certificate, dated
the Closing Date, signed by the President of BCAM, certifying, in such detail as
the Buyer and its counsel may reasonably request, that the conditions specified
in Sections 6.1 and 6.2 above have been fulfilled.
7
<PAGE>
6.4 Absence of Litigation. No action, suit or proceeding by or before
any court or any governmental body or authority, against BCAM or pertaining to
the transactions contemplated by this Agreement or their consummation, shall be
pending or threatened on the Closing Date, which action, suit or proceeding
would, if determined adversely, prohibit, restrain or impair the consummation of
the transactions contemplated by this Agreement, or have a material adverse
effect on either Drew Shoe, their business or any material portion of their
assets.
6.5 Consents and Releases. All necessary disclosures to and
agreements and consents of (a) any parties to any material contracts and/or any
licensing authorities which are material to Drew Shoe's business and (b) any
governmental authorities or agencies to the extent required in connection with
the transactions contemplated by this Agreement, shall have been obtained and
true and complete copies thereof delivered to the Buyer. Without limitation of
the foregoing, the Buyer shall have received the written consent of Bank One,
National Association, a creditor and secured party of Drew Shoe, with respect to
the transactions contemplated by this Agreement, and the transfer of Drew Common
Stock to the Buyer hereunder.
6.6 Condition of Property. Between the date of this Agreement and the
Closing Date, (a) assets of Drew Shoe having an aggregate fair market value of
$5,000 or more shall not have been lost, destroyed or irreparably damaged by
fire, flood, explosion, theft or any other cause, whether or not covered by
insurance, and (b) no other event, occurrence, condition or cause shall have
occurred, arisen or been discovered which has had or would reasonably be
expected to have a material adverse effect on the business, operations, assets
or condition (financial or otherwise) of Drew Shoe.
6.7 Third Party Transaction. Impleo shall simultaneously with the
closing of this Agreement, successfully consummate a third party transaction
with R. Weil & Associates, Strafe & Co. f/b/o David M. Kirr, Strafe & Co. f/b/o
Terry B. Marbach, Strafe & Co. f/b/o Gregg T. Summerville and others to acquire
their (a) interests in seven certain BCAM 10%/13% convertible subordinated
promissory notes, which notes in the aggregate total a principal amount of
$1,000,000 plus accrued interest; (b) interests in seven warrant instruments to
purchase an aggregate of 333,333 shares of BCAM Common Stock; (c) 28.4971 shares
of Drew Common Stock; and (d) 16.667 shares of $.01 par value common stock of
BCAM Technologies, Inc., a New York Corporation. In the event less than all of
the transactions contemplated by this third party transaction are not
consummated prior to the closing of this Agreement, for each $100,000 of
principal amount of notes and warrants not sold pursuant to this third party
transaction, BCAM shall have the right to withhold 1/60th of the shares of Drew
Common Stock transferred hereunder; provided, however, that BCAM shall
consummate the remaining terms of this Agreement and, upon Buyer's tender of
such "unsold notes," shall release to Buyer the withheld shares of Drew Common
Stock.
6.8 No Events. There shall not have occurred any one or more of the
events described in Section 5.3 above.
6.9 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all
8
<PAGE>
documents incidental thereto, shall be reasonably satisfactory in form and
substance to the Buyer and its counsel.
7. CONDITIONS PRECEDENT TO BCAM'S PERFORMANCE.
------------------------------------------
The obligations of BCAM to consummate the transactions contemplated
by this Agreement are further subject to the satisfaction, at or before the
Closing Date, of all of the following conditions, any one or more of which may
be waived in writing by BCAM:
7.1 Accuracy of Representations and Warranties. All representations
and warranties made by the Buyer in this Agreement and/or in any written
statement delivered by the Buyer under this Agreement shall be true and correct
in all respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
7.2 Performance. The Buyer shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer on or before
the Closing Date.
7.3 Certification. BCAM shall have received a certificate, dated as
of the Closing Date, signed by the Buyer, certifying, in such detail as BCAM and
its counsel may reasonably request, that the conditions specified in Sections
7.1 and 7.2 above have been fulfilled.
7.4 Proceedings and Instruments Satisfactory. All proceedings to be
taken in connection with the transactions contemplated by this Agreement, and
all documents incidental thereto, shall be reasonably satisfactory in form and
substance to BCAM and its counsel.
8. CLOSING.
-------
8.1 Place and Date of Closing. Unless this Agreement shall be
terminated pursuant to Section 9 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of counsel for the Buyer, Greenberg Traurig, 200 Park Avenue, New York, New York
10166 or such other location as is agreed to between the Buyer and BCAM, at
10:00 A.M. local time on October 23, 1998 (the date of the Closing being
referred to in this Agreement as the "Closing Date"). Notwithstanding the
foregoing, if the Buyer shall not be prepared to effect the Closing on such
Closing Date, the Buyer shall have the right to extend the Closing Date for up
to an additional one (1) month through November 23, 1998.
8.2 Actions at Closing. At the Closing or prior thereto, the Buyer
and BCAM shall make all deliveries stated in this Agreement, which deliveries
are required to be made at the Closing and/or on or prior to the Closing Date.
9
<PAGE>
9. TERMINATION OF AGREEMENT.
9.1 General. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing: (a) by
the mutual written consent of BCAM and the Buyer; (b) by the Buyer, or by BCAM,
if: (i) a material breach shall exist with respect to the written
representations and warranties made by the other party, (ii) the other party
shall take any action prohibited by this Agreement, if such action shall or may
have a material adverse effect on Drew Shoe and/or the transactions contemplated
hereby, (iii) the other party shall not have furnished, upon reasonable notice
therefor, such certificates and documents required in connection with the
transactions contemplated hereby and matters incidental thereto as it shall have
agreed to furnish, and it is reasonably unlikely that the other party will be
able to furnish such item(s) prior to the outside Closing Date specified below,
or (iv) any consent of any third party to the transactions contemplated hereby
(whether or not the necessity of which is disclosed herein) is reasonably
necessary to prevent a default under any outstanding material obligation of
either party, or Drew Shoe, and such consent is not obtainable without material
cost or penalty (unless the party or parties not seeking to terminate this
Agreement agree to pay such cost or penalty); or (c) by either party, at any
time on or after October 23, 1998 (or November 23, 1998 in the event of an
extension pursuant to Section 8.1 above), if the transactions contemplated
hereby shall not have been consummated prior thereto, and such party shall not
then be in breach or default of any obligations imposed upon it by this
Agreement.
10. INDEMNIFICATION.
---------------
10.1 General.
(a) BCAM shall defend, indemnify and hold harmless the Buyer
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that the Buyer may incur,
sustain or suffer as a result of (i) any misrepresentation or breach of warranty
by BCAM under this Agreement, and/or (ii) any failure by BCAM to perform any of
the covenants or agreements of BCAM contained in this Agreement.
(b) The Buyer shall defend, indemnify and hold harmless BCAM
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that BCAM may incur, sustain
or suffer as a result of (i) any misrepresentation or breach of warranty by the
Buyer under this Agreement and/or (ii) any failure the Buyer to perform, any of
the covenants or agreements of the Buyer contained in this Agreement.
10
<PAGE>
11. POST-CLOSING EVENTS.
-------------------
11.1 Further Assurances. From time to time from and after the Closing
Date, the parties will execute and deliver to each other any and all further
agreements, instruments, certificates and other documents as may reasonably be
requested by the other party in order more fully to consummate the transactions
contemplated hereby.
11.2 Additional Transaction. Provided such approval is necessary,
promptly after the Closing Date, and in any event no later than sixty (60) days
thereafter, BCAM will submit to its shareholders for their approval the
transactions contemplated by the Purchase and Sale Agreement. BCAM will use its
best efforts to obtain such shareholder approval (provided such approval is
necessary) as soon as reasonably possible, but if such approval is not obtained
or waived, and the transactions contemplated by the Purchase and Sale Agreement
are not consummated on or before January 15, 1999, said failure shall not affect
or impair the other transactions contemplated by this Agreement and neither
BCAM, nor Buyer shall have any further rights or obligations under this Section
11.2 or under the Purchase and Sale Agreement.
11.3 Continuing Security Interest. Pursuant to security and stock
pledge agreements dated April 14, 1998, BCAM's indebtedness to Impleo, as
evidenced by the Subject Notes (and, after the Closing, the Replacement Note)
are secured by security interests granted by BCAM to Impleo in BCAM's shares of
Drew Common Stock, its accounts, chattel paper, contracts, documents, equipment,
intangibles, and other assets. It is the intention of the parties to this
Agreement that said security interests continue in favor of Impleo as collateral
for the indebtedness under the Replacement Note and, accordingly, nothing
contained in this Agreement shall be construed as a waiver of, or Impleo's
consent or agreement to release, said security interests.
11.4 Assignment of Stock Purchase Agreement. To the fullest extent
permissible, BCAM hereby assigns to Buyer any and all rights it had or currently
has under that certain Stock Purchase Agreement dated March 20, 1997 and entered
into by and between BCAM, as Purchaser and Frank Shyjka and Charles Schulyer as
Sellers. BCAM agrees to execute any further documents and shall seek and, to the
extent feasible, obtain, in good faith such consents as may be necessary to
effectuate the intent of this Section 11.4.
12. COSTS.
-----
12.1 Finder's or Broker's Fees. Each of the Buyer and BCAM represents
and warrants that neither they nor any of their respective affiliates have dealt
with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and no broker or other person is entitled to any
commission or finder's fee in connection with any of these transactions.
12.2 Expenses. At the time of Closing or any termination of this
Agreement (as the case may be), or upon demand by the Buyer, BCAM shall pay all
costs and expenses incurred or to be incurred by BCAM and/or the Buyer in
negotiating and preparing this
11
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Agreement, all related agreements and documentation, and in closing and carrying
out the transactions contemplated by this Agreement, regardless of whether such
transactions ultimately close or are consummated, which costs and expenses shall
include, but not be limited to, all reasonable legal fees and disbursements the
parties may incur in connection herewith.
13. FORM OF AGREEMENT.
-----------------
13.1 Effect of Headings. The Section headings used in this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of the provisions hereof.
13.2 Entire Agreement; Waivers. This Agreement, along with the
Exhibits hereto, and the other agreements and instruments referred to herein,
constitute the entire agreement between the parties pertaining to the subject
matter hereof, and supersede all prior agreements or understandings as to such
subject matter. No party hereto has made any representation or warranty or given
any covenant to the other except as set forth in this Agreement and the Exhibits
hereto. No waiver of any of the provisions of this Agreement shall be deemed, or
shall constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
13.3 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
14. PARTIES.
-------
14.1 Parties in Interest. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and permitted assigns, nor is anything in this Agreement
intended to relieve or discharge the obligations or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
14.2 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally or by telecopier on the party
to whom notice is to be given, on the day after the delivery thereof to a
recognized overnight courier service for next-day delivery with all charges
prepaid or billed to the account of the sender, or on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed as
follows:
12
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(a) If to BCAM:
BCAM International, Inc.
1800 Walt Whitman Road
Melville, New York, 17747
Attention: Michael Strauss, Chairman
and Chief Executive Officer
Fax: (516) 752-3558
with copy to:
Ruskin, Moscou, Evans et al.
170 Old Country Road
Mineola, NY 11501
Attention: Norman M. Friedland, Esq.
(b) If to the Buyer:
IMPLEO, LLC
c/o Wexford Management, LLC
411 West Putnam Avenue
Greenwich, Connecticut 06803
Attention: Joseph Jacobs, President
Fax: (203) 862-7320
with a copy to:
Greenberg, Traurig
200 Park Avenue
New York, New York 10166
Attention: Shahe Sinanian, Esquire
Fax: (212) 801-6400
or to such other address as either party shall have specified by notice in
writing given to the other party.
15. MISCELLANEOUS.
-------------
15.1 Amendments and Modifications. No amendment or modification of
this Agreement or any Exhibit hereto shall be valid unless made in writing and
signed by or on behalf of the party to be charged therewith.
15.2 Non-Assignability; Binding Effect. Neither this Agreement, nor
any of the rights or obligations of the parties hereunder, shall be assignable
by any party hereto without the prior written consent of all other parties
hereto. Otherwise, this Agreement shall be binding
13
<PAGE>
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
15.3 Governing Law; Jurisdiction. This Agreement shall be construed
and interpreted and the rights granted herein governed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
wholly within such State.
15.4 Choice of Forum; Waiver of Trial by Jury. Any suit, action or
proceeding brought by either party against the other party for claims arising
out of this Agreement shall be brought and enforced exclusively in the United
States District Court for the Southern District of New York, or in the event
that court lacks jurisdiction to hear the claim, in the New York State Supreme
Court in New York County. In any such suit, action or proceeding, each party
waives, to the fullest extent it may effectively do so, its right to a trial by
jury.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first set forth above.
IMPLEO, LLC
By: /s/ Joseph Jacobs
---------------------------------
Joseph Jacobs,
BCAM INTERNATIONAL, INC.
By:/s/ Michael Strauss
---------------------------------
Michael Strauss, Chairman &
Chief Executive Officer
14
<PAGE>
EXHIBIT C
---------
PURCHASE AND SALE AGREEMENT
---------------------------
PURCHASE AND SALE AGREEMENT (this "Agreement"), entered into as of this
23rd day of October, 1998, by and between IMPLEO, LLC, a Delaware limited
liability company (the "Buyer"), and BCAM INTERNATIONAL, INC., a New York
Corporation, ("BCAM");
W I T N E S S E T H:
--------------------
WHEREAS, BCAM is the record and beneficial owner of 569.37302 shares of
common stock, without par value, of Drew Shoe Corporation ("Drew"), an Ohio
corporation (the "Subject Stock");
WHEREAS, pursuant to a Stock Purchase and Restructuring Agreement of even
date herewith, to which this Agreement is attached as an exhibit, the parties
have agreed to enter into this Agreement;
WHEREAS, the Buyer is the holder of a BCAM 10%/13% convertible subordinated
promissory note in the aggregate principal amount of $3,073,663.90 (the "Note")
and, 740,000 warrants to purchase an aggregate of 569.37302 shares of common
stock of BCAM, $.01 par value per share (the "Warrants");
WHEREAS, conditioned upon shareholder approval of the transactions
contemplated by this Agreement, BCAM wishes to transfer to the Buyer the Subject
Stock in exchange for the cancellation of indebtedness evidenced by the Note,
and certain other good and valuable consideration as more particularly provided
for herein; and
WHEREAS, the Buyer desires to purchase from BCAM and BCAM desires to sell
to the Buyer, all upon the terms and subject to the conditions set forth in this
Agreement, the Subject Stock.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. ACQUISITION OF THE STOCK.
------------------------
1.1 Stock Purchase. Subject to the terms and conditions of this
Agreement, on the Closing Date (as such term is hereinafter defined), the Buyer
shall purchase and acquire from BCAM, and BCAM shall sell and transfer to the
Buyer, the Subject Stock for the consideration provided for in Section 2 below.
In furtherance thereof, BCAM shall, on the Closing Date, against delivery of
such consideration in accordance with Section 2 below, deliver to the Buyer the
certificates representing the Subject Stock, duly endorsed for transfer or
accompanied by stock powers executed in blank for transfer.
1
<PAGE>
2.2 CONSIDERATION/DELIVERIES AT CLOSING.
-----------------------------------
At the Closing:
2.1 Purchase Price. The Buyer shall effectuate its cancellation of
the indebtedness evidenced by the Note by delivering the Note to BCAM for
cancellation.
2.2 Shareholder Agreement. That certain Shareholders' Agreement dated
of even date herewith and entered into by and between the Buyer, BCAM and Drew,
as referred to in the Restructuring Agreement, shall terminate pursuant to its
terms.
2.3 Note Purchase Agreement. The Buyer shall deliver such documents
to BCAM as BCAM may reasonably request, so as to evidence the termination of the
Note Purchase Agreement.
2.4 Security Agreement. The Buyer shall deliver such documents to
BCAM as BCAM may reasonably request, so as to evidence the termination of that
certain Security Agreement dated April 14, 1998, entered into by and among BCAM,
the Buyer and the Buyer's agent, in favor of the Buyer, along with any UCC-3
termination statements necessary to further effectuate the provisions of this
Section 2.4.
2.5 Warrants. Buyer shall effectuate its cancellation of the Warrants
by delivering to BCAM for cancellation the warrant certificates representing the
Warrants.
3. REPRESENTATIONS AND WARRANTIES OF BCAM.
-------------------------------------
In connection with the sale of the Subject Stock to the Buyer, BCAM
hereby represents and warrants to the Buyer as follows:
3.1 Title to the Stock. BCAM is the valid and lawful record and
beneficial owner of all of the Subject Stock, all of which has been duly
authorized and validly issued and is fully paid and non-assessable, and is free
and clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever other than (a) the outstanding pledge
thereof to the Buyer, and (b) restrictions which may be created by operation of
state or federal securities laws. On the Closing Date, the Buyer shall receive
from BCAM good, valid and marketable title to all of the Subject Stock, free and
clear of all pledges, liens, claims, charges, options, calls, encumbrances,
restrictions and assessments whatsoever, other than the above-referenced pledge
and securities law restrictions.
3.2 Valid and Binding Agreement; No Breach. (a) BCAM has full legal
right, power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. BCAM has taken all necessary
corporate action to authorize its execution and delivery of this Agreement. This
Agreement constitutes the legal, valid and binding obligations of BCAM,
enforceable against BCAM in accordance with their respective terms, except to
the extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, and except
that the remedy of
2
<PAGE>
specific performance or similar equitable relief is available
only at the discretion of the court before which enforcement is sought.
(b) Neither the execution and delivery of this Agreement nor
compliance with the terms and provisions of this Agreement on the part of BCAM
will: (i) violate any statute or regulation of any governmental authority,
domestic or foreign, applicable to BCAM; (ii) require the issuance of any
authorization, license, consent or approval of any federal or state governmental
agency, or any other person; or (iii) except for the pledge of the Subject Stock
in favor of the Buyer, conflict with or result in a breach of any of the terms,
conditions or provisions of any judgment, order, injunction, decree, note,
indenture, loan agreement or other agreement or instrument to which BCAM is a
party, or by which BCAM is bound, or constitute a default thereunder.
3.3 Organization, Good Standing and Qualification. BCAM is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, with full corporate power and authority to own its
assets and conduct its business as owned and conducted on the date hereof.
3.4 Equity Ownership. The Subject Stock to be transferred to the
Buyer hereunder constitutes not less than 33.33% of the total issued and
outstanding capital stock of Drew Shoe, on a fully diluted basis (after giving
effect to the exercise or conversion of any and all outstanding options,
warrants, convertible securities, subscription rights or other rights to acquire
any capital stock of Drew Shoe). For purposes of this representation, the
options contained in the Drew Shoe Employment Agreement with Michael Strauss,
which Agreement is referred to in the Stock Purchase and Restructuring
Agreement, shall be disregarded.
3.5 Litigation. There is no suit, action, arbitration, or legal,
administrative or other proceeding, or governmental investigation pending or, to
the best knowledge of BCAM, threatened against BCAM which would in any manner
prohibit, restrain, impair or otherwise adversely affect the ability of BCAM to
convey free and clear title to the Subject Stock in accordance with this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
------------------------------------------
In connection with the Buyer's purchase of the Subject Stock from
BCAM, the Buyer hereby represents and warrants to BCAM as follows:
4.1 Valid and Binding Agreement. This Agreement constitutes the
legal, valid and binding obligations of the Buyer, enforceable against the Buyer
in accordance with their respective terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws affecting creditors' rights generally, and except that the remedy of
specific performance or similar equitable relief is available only at the
discretion of the court before which enforcement is sought. The Buyer has taken
all necessary company action to authorize its execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
3
<PAGE>
4.2 Organization, Good Standing and Qualification. The Buyer is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full power and authority to own
its assets and conduct its business as owned and conducted on the date hereof.
4.3 No Breach of Statute or Contract. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; or (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder.
4.4 Investment. The Buyer is purchasing the Subject Stock for its own
account for investment, and not with a view to the resale or distribution
thereof in violation of any applicable securities laws.
4.5 Disclaimer. The Buyer acknowledges that BCAM has not made any
representations or warranties relating to the value of the Drew Common Stock
transferred herein or the Business prospects of Drew Shoe.
5. CONDITIONS PRECEDENT TO THE BUYER'S PERFORMANCE.
----------------------------------------------
The obligations of the Buyer to consummate the transactions
contemplated by this Agreement are further subject to the satisfaction, at or
before the Closing Date, of all of the following conditions, any one or more
of which may be waived in writing by the Buyer:
5.1 Accuracy of Representations and Warranties. All representations
and warranties made by BCAM in this Agreement and/or in any written statement
delivered to the Buyer under this Agreement shall be true and correct in all
respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
5.2 Performance. BCAM shall have performed, satisfied and complied
with all covenants, agreements, and conditions required by this Agreement to be
performed, satisfied or complied with by BCAM on or before the Closing Date.
5.3 Certification. The Buyer shall have received a certificate, dated
the Closing Date, signed by the President of BCAM, certifying, in such detail as
the Buyer and its counsel may reasonably request, that the conditions specified
in Sections 5.1 and 5.2 above have been fulfilled.
5.4 Absence of Litigation. No action, suit or proceeding by or before
any court or any governmental body or authority, against BCAM or pertaining to
the transactions contemplated by this Agreement or their consummation, shall be
pending or threatened on the Closing Date, which action, suit or proceeding
would, if determined adversely, prohibit, restrain
4
<PAGE>
or impair the consummation of the transactions contemplated by this Agreement,
or have a material adverse effect on Drew Shoe, its business or any material
portion of its assets.
5.5 Consents and Releases. All necessary disclosures to and
agreements and consents of (a) any parties to any material contracts and/or any
licensing authorities which are material to Drew Shoe's business and (b) any
governmental authorities or agencies to the extent required in connection with
the transactions contemplated by this Agreement, shall have been obtained and
true and complete copies thereof delivered to the Buyer. Without limitation of
the foregoing, the Buyer shall have received the written consent of Bank One,
National Association, a creditor and secured party of Drew Shoe, with respect to
the transactions contemplated by this Agreement, and the transfer of the Subject
Stock to the Buyer hereunder.
5.6 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Buyer and its counsel.
6. CONDITIONS PRECEDENT TO BCAM'S PERFORMANCE.
------------------------------------------
The obligations of BCAM to consummate the transactions
contemplated by this Agreement are further subject to the satisfaction, at or
before the Closing Date, of all of the following conditions, any one or more
of which may be waived in writing by BCAM:
6.1 Accuracy of Representations and Warranties. All representations
and warranties made by the Buyer in this Agreement and/or in any written
statement delivered by the Buyer under this Agreement shall be true and correct
in all respects on and as of the Closing Date as though such representations and
warranties were made on and as of that date.
6.2 Performance. The Buyer shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer on or before
the Closing Date.
6.3 Certification. BCAM shall have received a certificate, dated as
of the Closing Date, signed by the Buyer, certifying, in such detail as BCAM and
its counsel may reasonably request, that the conditions specified in Sections
6.1 and 6.2 above have been fulfilled.
6.4 Shareholder Consent. Provided BCAM shall be required under the
New York Business Corporations Law, BCAM shall have submitted a copy of this
agreement to its shareholders and its shareholders shall have consented to the
terms of this Agreement and the transactions contemplated hereby.
6.5 Proceedings and Instruments Satisfactory. All proceedings to be
taken in connection with the transactions contemplated by this Agreement, and
all documents incidental thereto, shall be reasonably satisfactory in form and
substance to BCAM and its counsel.
5
<PAGE>
7. CLOSING.
-------
7.1 Place and Date of Closing. Unless this Agreement shall be
terminated pursuant to Section 8 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of counsel for the Buyer, Greenberg Traurig, 200 Park Avenue, New York, New York
10166 or such other location as is agreed to between the Buyer and BCAM, at
10:00 A.M. local time on or before January 15, 1999 (the date of the Closing
being referred to in this Agreement as the "Closing Date").
7.2 Actions at Closing. At the Closing or prior thereto, the Buyer
and BCAM shall make all deliveries stated in this Agreement, which deliveries
are required to be made at the Closing and/or on or prior to the Closing Date.
8. TERMINATION OF AGREEMENT.
------------------------
8.1 General. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing: (a) by
the mutual written consent of BCAM and the Buyer; (b) by the Buyer, or by BCAM,
if: (i) a material breach shall exist with respect to the written
representations and warranties made by the other party, (ii) the other party
shall take any action prohibited by this Agreement, if such action shall or may
have a material adverse effect on Drew Shoe and/or the transactions contemplated
hereby, (iii) the other party shall not have furnished, upon reasonable notice
therefor, such certificates and documents required in connection with the
transactions contemplated hereby and matters incidental thereto as it shall have
agreed to furnish, and it is reasonably unlikely that the other party will be
able to furnish such item(s) prior to or on the Closing Date specified below, or
(iv) any consent of any third party to the transactions contemplated hereby
(whether or not the necessity of which is disclosed herein) is reasonably
necessary to prevent a default under any outstanding material obligation of
either party, or Drew Shoe, and such consent is not obtainable without material
cost or penalty (unless the party or parties not seeking to terminate this
Agreement agree to pay such cost or penalty); or (c) by either party, at any
time on or after January 16, 1999, if the transactions contemplated hereby shall
not have been consummated prior thereto, and such party shall not then be in
breach or default of any obligations imposed upon it by this Agreement.
9. INDEMNIFICATION.
---------------
9.1 General.
(a) BCAM shall defend, indemnify and hold harmless the Buyer
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that the Buyer may incur,
sustain or suffer as a result of (i) any misrepresentation or breach of warranty
by BCAM under this Agreement, and/or (ii) any failure by BCAM to perform any of
the covenants or agreements of BCAM contained in this Agreement.
6
<PAGE>
(b) The Buyer shall defend, indemnify and hold harmless BCAM
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorneys' fees, that BCAM may incur, sustain
or suffer as a result of (i) any misrepresentation or any breach of warranty by
the Buyer under this agreement, and/or (ii) any failure by the Buyer to perform,
any of the representations, warranties, covenants or agreements of the Buyer
contained in this Agreement.
10. POST-CLOSING EVENTS.
-------------------
10.1 Further Assurances. From time to time from and after the Closing
Date, the parties will execute and deliver to each other any and all further
agreements, instruments, certificates and other documents as may reasonably be
requested by the other party in order more fully to consummate the transactions
contemplated hereby.
11. COSTS.
-----
11.1 Finder's or Broker's Fees. Each of the Buyer and BCAM represents
and warrants that neither they nor any of their respective affiliates have dealt
with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and no broker or other person is entitled to any
commission or finder's fee in connection with any of these transactions.
11.2 Expenses. At the time of Closing or any termination of this
Agreement (as the case may be), or upon demand by the Buyer, BCAM shall pay all
costs and expenses incurred or to be incurred by BCAM and/or the Buyer in
negotiating and preparing this Agreement, all related agreements and
documentation, and in closing and carrying out the transactions contemplated by
this Agreement, regardless of whether such transactions ultimately close or are
consummated, which costs and expenses shall include, but not be limited to, all
reasonable legal fees and disbursements the parties may incur in connection
herewith.
12. FORM OF AGREEMENT.
-----------------
12.1 Effect of Headings. The Section headings used in this Agreement
are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of the provisions hereof.
12.2 Entire Agreement; Waivers. This Agreement and the other
agreements and instruments referred to herein, constitute the entire agreement
between the parties pertaining to the subject matter hereof, and supersede all
prior agreements or understandings as to such subject matter. No party hereto
has made any representation or warranty or given any covenant to the other
except as set forth in this Agreement. No waiver of any of the provisions of
this Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
7
<PAGE>
12.3 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
13. PARTIES.
-------
13.1 Parties in Interest. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective successors and permitted assigns, nor is anything in this Agreement
intended to relieve or discharge the obligations or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
13.2 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally or by telecopier on the party
to whom notice is to be given, on the day after the delivery thereof to a
recognized overnight courier service for next-day delivery with all charges
prepaid or billed to the account of the sender, or on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed as
follows:
(a) If to BCAM:
BCAM International, Inc.
1800 Walt Whitman Road
Melville, New York, 17747
Attention: Michael Strauss, Chairman
and Chief Executive Officer
Fax: (516) 752-3558
with copy to:
Ruskin, Moscou, Evans et al.
170 Old Country Road
Mineola, NY 11501
Attention: Norman M. Friedland, Esq.
8
<PAGE>
(b) If to the Buyer:
IMPLEO, LLC
c/o Wexford Management, LLC
411 West Putnam Avenue
Greenwich, Connecticut 06803
Attention: Joseph Jacobs, President
Fax: (203) 862-7320
with a copy to:
Greenberg, Traurig
200 Park Avenue
New York, New York 10166
Attention: Shahe Sinanian, Esquire
Fax: (212) 801-6400
or to such other address as either party shall have specified by notice in
writing given to the other party.
14. MISCELLANEOUS.
-------------
14.1 Amendments and Modifications. No amendment or modification of
this Agreement shall be valid unless made in writing and signed by or on behalf
of the party to be charged therewith.
14.2 Non-Assignability; Binding Effect. Neither this Agreement, nor
any of the rights or obligations of the parties hereunder, shall be assignable
by any party hereto without the prior written consent of all other parties
hereto. Otherwise, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
14.3 Governing Law; Jurisdiction. This Agreement shall be construed
and interpreted and the rights granted herein governed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
wholly within such State.
14.4 Choice of Forum; Waiver of Trial by Jury. Any suit, action or
proceeding brought by either party against the other party for claims arising
out of this Agreement shall be brought and enforced exclusively in the United
States District Court for the Southern District of New York, or in the event
that court lacks jurisdiction to hear the claim, in the New York State Supreme
Court in New York County. In any such suit, action or proceeding, each party
waives, to the fullest extent it may effectively do so, its right to a trial by
jury.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first set forth above.
IMPLEO, LLC
By:/s/ Joseph Jacobs
------------------------------------
Joseph Jacobs
BCAM INTERNATIONAL, INC.
------------------------------------
By:/s/ Michael Strauss
Michael Strauss, Chairman &
Chief Executive Officer
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<PAGE>
EXHIBIT D
---------
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
-------------------------------------------
SECOND AMENDMENT dated as of October 23, 1998 (the "Second Amendment")
to the NOTE PURCHASE AGREEMENT (the "Agreement") dated as of September 19,
1997, as amended by the First Amendment to the Note Purchase Agreement dated
April 14, 1998 among BCAM INTERNATIONAL, INC., a New York corporation (the
"Company"), IMPLEO LLC, a Connecticut limited liability company (the
"Purchaser") and WEXFORD MANAGEMENT LLC, as agent for the Purchaser and the
holders of Other Notes (the "Agent").
W I T N E S S E T H:
--------------------
WHEREAS, the Purchaser and the Company have heretofore entered into
that certain Note Purchase Agreement dated as of September 19, 1997, as
amended by the First Amendment to the Note Purchase Agreement dated April 14,
1998 (the "Agreement"). The Company has heretofore issued, and the Purchaser
has heretofore purchased, the Company's 10%/13% convertible subordinated
promissory notes (the "Notes") in the aggregate principal amount of
$5,000,000 pursuant to the Agreement;
WHEREAS, as of even date herewith, the Purchaser and the Company have
entered into a Stock Purchase and Restructure Agreement (the "Purchase
Agreement"), pursuant to which, the Purchaser has agreed to waive certain
rights it has with respect to the election of the Company's board of
directors.
NOW, THEREFORE, the Purchaser and the Company hereby agree as follows:
1. Amendment. Section 4.1 of the Agreement shall be and is hereby amended
by the deletion of the following language from the language contained therein:
"In addition, so long as the Notes are outstanding, the
Purchaser shall have the right to designate a number of
directors of the Company equal to at least 25% (and if the
number of Directors is not divisible by four, rounded up to
the next whole number) of the number of such directors. In
the case that any nominee designated by the Purchaser
ceases to serve as a director of the Company, Drew or BT
for any reason, the Company agrees that it will nominate to
its board of directors or the board of directors of Drew or
BT, as the case may be, one or more replacement nominees
designated by the Purchaser and use its best efforts to
cause such replacement nominees to be elected."
2. Interpretation; Construction. This Second Amendment shall be construed
in connection with and as part of the Agreement, and except as modified and
expressly amended by this Second Amendment, all terms, conditions and covenants
contained in the Agreement, the First Amendment and the Notes are hereby
ratified and shall be and remain in full force and effect. From and after the
effective date of this Second Amendment, references to the Agreement shall mean
the Agreement as amended by the First Amendment and this Second Amendment.
<PAGE>
3. Effectiveness of the Agreement. The effectiveness of this Agreement is
conditioned upon the parties consummating the transactions contemplated by the
Purchase Agreement, and the exhibits thereto. In the such transactions are not
consummated by the parties hereof, this agreement shall be of no force or
effect.
4. Effect of Headings. The Section headings used in this Agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of the provisions hereof.
5. Entire Agreement. This Agreement along with the other agreements and
instruments referred to herein, constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede all prior
agreements or understandings as to such subject matter. No party hereto has made
any representation or warranty or given any covenant to the other except as set
forth in this Agreement.
6. Amendments and Modifications. No amendment or modification of this
Agreement shall be valid unless made in writing and signed by or on behalf of
the party to be charged therewith.
7. Governing Law; Jurisdiction. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the laws
of the State of New York applicable to contracts made and to be performed wholly
within such State.
8. Choice of Forum; Waiver of Trial by Jury. Any suit, action or proceeding
brought by either party against the other party for claims arising out of this
Agreement shall be brought and enforced exclusively in the United States
District Court for the Southern District of New York, or in the event that court
lacks jurisdiction to hear the claim, in the New York State Supreme Court in New
York County. In any such suit, action or proceeding, each party waives, to the
fullest extent it may effectively do so, its right to a trial by jury.
2
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Second Amendment to the
Note Purchase Agreement as of the date first written above.
BCAM INTERNATIONAL INC.
By:/s/ Michael Strauss
-------------------------
Michael Strauss
President
IMPLEO LLC
By: WEXFORD MANAGEMENT LLC
as Agent for Impleo LLC
By:/s/ Joseph Jacobs
-------------------
Joseph Jacobs,
President
WEXFORD MANAGEMENT LLC
as Agent
By:/s/ Jospeh Jacobs
----------------------
Joseph Jacobs
President
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