STOCK PURCHASE AND SECONDARY OFFERING AGREEMENT
STOCK PURCHASE AND SECONDARY OFFERING AGREEMENT, dated as of this
27th day of May, 1997 (the "Agreement"), by and among Furniture Brands
International, Inc., a Delaware corporation ("the Company"), Apollo
Investment Fund, L.P., a Delaware limited partnership ("Apollo") and
Lion Advisors, L.P., a Delaware limited partnership ("Lion," and
together with Apollo, the "Sellers").
WHEREAS, Apollo is the beneficial owner of 11,474,519 shares (the
"Apollo Shares") of common stock, no par value per share, of the
Company (the "Common Stock") and warrants (the "Apollo Warrants") to
purchase 145,439 shares of Common Stock;
WHEREAS, Lion is the beneficial owner of 11,467,780 shares (the
"Lion Shares," and together with the Apollo Shares , the "Shares") of
Common Stock and warrants (the "Lion Warrants," and together with the
Apollo Warrants, the "Warrants") to purchase 145,382 shares of Common
Stock;
WHEREAS, the Sellers desire to sell certain of the Shares to the
public in an underwritten public offering and the Company desires to
facilitate such underwritten public offering by filing with the
Securities and Exchange Commission, and using all reasonable efforts
to cause to become effective, a registration statement covering such
Shares; and
WHEREAS, subject to the terms and conditions of this Agreement,
the Sellers also desire to sell to the Company, and the Company
desires to purchase, the Warrants and the balance of the Shares on the
terms and conditions set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Purchase and Sale of Warrants. Subject to the terms and
conditions of this Agreement, and in reliance on the representations,
warranties and covenants contained herein, at the Closing (as
hereinafter defined), each Seller will sell, assign, transfer and
convey to the Company, and the Company will purchase from each Seller
(the "Warrant Repurchase"), the Warrants (the "Repurchased Warrants")
owned by such Seller, free and clear of all pledges, liens, claims,
options, charges or encumbrances of whatever nature ("Encumbrances").
In consideration of the aforesaid sale, the Company will pay to each
Seller for each Repurchased Warrant sold by such Seller pursuant
hereto, in immediately available funds and in accordance with Section
4, an amount per share of Common Stock represented by the Repurchased
Warrants (the "Warrant Repurchase Price") equal to the Repurchase
Price (as hereinafter defined) less $7.13).
2. Purchase and Sale of Shares. Subject to the terms and
conditions of this Agreement, and in reliance on the representations,
warranties and covenants contained herein, at the Closing, the Sellers
will sell, assign, transfer and convey to the Company, and the Company
will purchase an aggregate of 10,842,299 Shares (the "Repurchased
Shares") from the Sellers (the "Share Repurchase", and together with
the Warrant Repurchase, the "Company Repurchase"), free and clear of
all Encumbrances. In consideration of the aforesaid sale, the Company
will pay to each Seller for each Repurchased Share sold by such Seller
pursuant hereto, in immediately available funds and in accordance with
Section 4, the "Share Repurchase Price," as defined in Section 4.
3. Closing. Subject to the satisfaction or waiver of the
conditions set forth in Section 5 hereof, the closing of the Company
Repurchase (the "Closing") shall be held in New York, New York at the
location of the closing of the Secondary Offering (as hereinafter
defined) (a) on the closing date of the Secondary Offering,
immediately following the closing of the Secondary Offering; or (b) on
such other date and at such other time as Apollo, Lion and the Company
shall agree (the "Closing Date"). For purposes of this Agreement, the
term "Secondary Offering" means the underwritten public offering of
11,000,000 Shares by the Sellers contemplated by this Agreement.
4. Deliveries at the Closing. At the Closing, (a) each
Seller will deliver to the Company (i) the warrant certificate(s)
representing the Repurchased Warrants to be sold by such Seller
pursuant hereto, (ii) certificates representing the Repurchased Shares
to be sold by such Seller pursuant hereto, with appropriate stock
powers attached, properly signed, with any necessary documentary or
transfer tax stamps duly affixed, (iii) a certificate of such Seller
that the condition set forth in Sections 5(b)(i) has been satisfied
and (iv) the opinion of counsel to such Seller described in Section
5(b)(ii); and (b) the Company will (i) pay to each Seller, for each of
such Seller's Repurchased Warrants and for each of such Seller's
Repurchased Shares, the Warrant Repurchase Price and the Share
Repurchase Price, respectively, by wire transfer of immediately
available funds to the account designated by such Seller in writing on
or before the second business day prior to the Closing Date, (ii)
deliver to each Seller a certificate of the Company that the condition
set forth in Section 5(a)(i) has been satisfied and (iii) deliver to
each Seller the opinion of counsel to the Company described in Section
5(a)(ii). For purposes of this Agreement, the term "Repurchase Price"
shall mean $15.75 per Share; provided, however, if the price to the
public per Share sold in the Secondary Offering is $15.50 or more,
then for purposes of this Agreement the term "Repurchase Price" shall
mean $15.50 per Share.
5. Conditions.
(a) The obligation of the Sellers to consummate the Company
Repurchase is subject to the satisfaction or waiver, as of the Closing
Date, of the conditions that:
(i) the representations and warranties of the Company
contained in Section 7 are true and correct on the Closing Date as
though made as of such date;
(ii) counsel to the Company shall have delivered its
opinion to such Seller, in form and substance reasonably satisfactory
to such Seller and dated as of the Closing Date, as to the matters set
forth in Section 7(a); and
(iii) the Secondary Offering shall have been
consummated and all of the 11,000,000 Shares offered thereby shall
have been sold at a price acceptable to the Sellers in their sole
discretion.
(b) The obligation of the Company to consummate the Company
Repurchase is subject to the satisfaction or waiver, as of the Closing
Date, of the conditions that:
(i) the representations and warranties of each Seller
contained in Section 6 are true and correct on the Closing Date as
though made as of such date;
(ii) counsel to the Sellers shall have delivered its
opinion to the Company, in form and substance reasonably satisfactory
to the Company and dated as of the Closing Date, as to the matters set
forth in Section 6(a) and the next to last sentence of Section 6(b);
(iii) the Secondary Offering shall have been consummated
and all of the 11,000,000 Shares offered thereby shall have been sold;
(iv) the Sellers shall have tendered to the Company the
Repurchased Shares for sale to the Company in accordance with the
terms and conditions of this Agreement;
(v) each of the Sellers shall have tendered its
respective Warrants to the Company in accordance with the provisions
of Section 1 hereof;
(vi) the Company shall have borrowed $175,000,000 (or
such lesser amount as the Company shall determine) of bank debt on
terms not materially less favorable to the Company than the terms set
out in the commitment letter attached hereto as Exhibit A;
(vii) the Company's $475,000,000 Secured Revolving
Credit Facility and $210,000,000 Receivables Securitization Facility
shall have been amended to the reasonable satisfaction of the Company;
(viii) the opinion received by the Company from its
financial advisor prior to the execution of this Agreement and dated
as of the date hereof, to the effect that the Company Repurchase and
the Secondary Offering are fair to the Company and the Company's
stockholders, other than the Sellers, from a financial point of view,
shall not have been withdrawn by such financial advisor at any time
between the date hereof and Closing;
(ix) the Company shall have received an opinion from
its financial advisor to the effect that the Company is solvent as of
the date of, and taking into account, the Closing; and
(x) there shall have been no material adverse change,
and no event shall have occurred that could reasonably be expected to
result in a material adverse change, to the business or financial
condition of the Company and its subsidiaries, taken as a whole.
(c) The respective obligations of the parties to consummate
the Company Repurchase are subject to there not being in effect any
order, decree or injunction issued by a court of competent
jurisdiction prohibiting or restraining consummation of the
transactions contemplated hereby.
6. Representations and Warranties of Sellers. Each Seller
represents and warrants to the Company as follows (as to such Seller
and not as to the other Seller):
(a) Such Seller is duly organized and validly existing under
the laws of the State of Delaware. Such Seller has all requisite
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by such Seller and, assuming the due execution hereof by the
Company and the other Seller, this Agreement constitutes the legal,
valid and binding obligation of such Seller enforceable against each
such Seller in accordance with the terms hereof, except as such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity.
(b) Such Seller owns of record and beneficially that number
of Shares and that number of Warrants as are set forth in the Recitals
hereto with respect to such Seller. Except for those Shares owned
beneficially by the other Seller hereto, no Seller Affiliates (as
defined hereinbelow) own of record or beneficially, or own any rights
to acquire, any shares of Common Stock. Upon consummation of the
Company Repurchase at the Closing, as contemplated by this Agreement,
good title to the Repurchased Warrants and good title to the
Repurchased Shares will be delivered to the Company, free and clear of
any Encumbrances. For purposes of this Agreement, the term "Seller
Affiliate" shall mean, with respect to either Seller, the affiliates
of such Seller, not including the Company or any subsidiary of the
Company.
(c) Neither the execution and delivery by such Seller of this
Agreement nor the consummation by such Seller of the transactions
contemplated hereby will violate or conflict with, or constitute a
default under (i) the partnership agreement or other organizational
documents of such Seller, (ii) any agreement, judgment, order or other
obligation to which such Seller is a party or by which such Seller is
bound, or (iii) assuming the representation by the Company in Section
7(b) is correct, any law or regulation applicable to such Seller or
its assets or properties, except for such violations, conflicts,
breaches, defaults or Encumbrances under clauses (ii) or (iii) which
(x) would not prevent, materially delay or materially adversely affect
the consummation of the transactions contemplated by this Agreement or
(y) will be waived or otherwise released prior to the Closing as
promptly as practicable (but in any event within 30 days) following
the date of this Agreement.
7. The Company's Representations and Warranties. The Company
represents and warrants to each Seller as follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
The Company has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Company, and, assuming the due execution hereof by
each Seller, constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with the
terms hereof, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity.
(b) Neither the execution and delivery by the Company of this
Agreement nor the consummation by the Company of the transactions
contemplated hereby will violate or conflict with, or constitute a
default under (i) the Company's Restated Certificate of Incorporation
or bylaws, (ii) any agreement, judgment, order or other obligation to
which the Company is a party or by which the Company is bound, or
(iii) any law or regulation applicable to the Company or its assets or
properties, except for such violations, conflicts, breaches, defaults
or Encumbrances under clauses (ii) or (iii) which (x) would not
prevent, materially delay or materially adversely affect the
consummation of the transactions contemplated by this Agreement or (y)
will be waived or otherwise released prior to the Closing as promptly
as practicable (but in any event within 30 days) following the date of
this Agreement.
8. Pre-Closing Covenants.
(a) In connection with the Secondary Offering:
(i) The Company shall file as promptly as practicable
following the date hereof and shall use all reasonable efforts to
cause to be declared effective as soon as possible after such filing,
a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), for a public offering by Sellers of
11,000,000 Shares of Common Stock and for an underwriters
over-allotment option of up to 1,100,000 Shares provided to the
underwriters by Sellers (the "Green Shoe").
(ii) The Company and the Sellers agree to enter into an
underwriting agreement for the Secondary Offering containing
provisions, as to each party thereto, as are customary in transactions
similar to the Secondary Offering, and pursuant to which, among other
things, the Sellers shall agree to sell to the underwriters 11,000,000
Shares and grant to the underwriters the Green Shoe; provided, that
the Sellers shall be under no obligation to enter into such
underwriting agreement unless the price to the public for such Shares
is satisfactory to both of the Sellers in their sole discretion.
(iii) The Company and each Seller agrees to use all
reasonable efforts to consummate the Secondary Offering on the terms
described herein and to perform in good faith all obligations of the
Company and such Seller set forth in the underwriting agreement
related to the Secondary Offering.
(iv) Printing with respect to the Secondary Offering
shall be arranged and coordinated by the Company; such printing shall
be paid for in accordance with the provisions of Section 12 hereof.
(b) The Sellers shall cause each of Leon D. Black, Michael S.
Gross, John J. Hannan, Joshua J. Harris, John H. Kissack, Marc J.
Rowan, Michael D. Weiner and John J. Ryan III (and any other director
elected to replace any of the foregoing between the date hereof and
the Closing Date) to tender to the Company his resignation as a
director of the Company, effective as of the Closing Date.
(c) The Company shall use all reasonable efforts to obtain
the opinion contemplated by Section 5(b)(ix) of this Agreement prior
to the Closing Date.
9. Other Covenants
(a) During the Standstill Period (as defined below), without
the prior written consent of the Company and except as otherwise
expressly contemplated by this Agreement, each Seller agrees that such
Seller shall not, nor shall such Seller permit any Seller Affiliates
to (nor shall such Seller agree, or advise, assist, encourage, provide
information or provide financing to others, or permit its Seller
Affiliates to agree, or to advise, assist, encourage, provide
information or provide financing to others, to), individually or
collectively:
(i) acquire or offer to acquire or agree to acquire from
any individual, partnership, joint venture, corporation, trust,
unincorporated organization or other entity or government or any
department or agency thereof (each, a "Person"), directly or
indirectly, by purchase, merger, through the acquisition of control of
another Person, by joining a partnership, limited partnership or other
"group" (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) or otherwise,
beneficial ownership of any securities of the Company, or direct or
indirect rights (including convertible securities) or options to
acquire such beneficial ownership (or otherwise act in concert with
respect to any such securities, rights or options with any Person that
so acquires, offers to acquire or agrees to acquire); provided,
however, that no such acquisition, offer to acquire or agreement to
acquire shall be deemed to occur solely due to (a) a stock split,
reverse stock split, reclassification, reorganization or other
transaction by the Company affecting any class of the outstanding
capital stock of the Company generally, (b) a stock dividend or other
pro rata distribution by the Company to holders of its outstanding
capital stock or (c) passive acquisitions, for investment purposes
only, of less than 1% of the outstanding shares of Common Stock by a
Seller Affiliate who is an individual without the advice, assistance,
encouragement or financing from or as part of a group with any Seller
or other Seller Affiliate; or
(ii) sell, transfer any beneficial interest in, pledge,
hypothecate or otherwise dispose of any Shares (whether owned by such
Seller on the date hereof or thereafter acquired by such Seller or any
Seller Affiliate at any time), except as permitted by Section 9(b)
hereof; or
(iii) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" to vote (as such terms are
used in the Regulation 14A promulgated under the Exchange Act), become
a "participant" in any "election contest" (as such terms are defined
in Rule 14a-11 promulgated under the Exchange Act) or indicate,
propose or otherwise solicit stockholders of the Company for the
approval of any stockholder proposals, in each case with respect to
the Company; provided, however, that the foregoing shall not apply to
any person who is a director of the Company acting in his capacity as
a director of the Company with respect to matters approved by a
majority of the Board of Directors of the Company; or
(iv) form, join, in any way participate in, or encourage
the formation of, a group (within the meaning of Section 13(d)(3) of
the Exchange Act) with respect to any voting securities of the
Company; or
(v) deposit any securities of the Company into a voting
trust, or subject any securities of the Company to any agreement or
arrangement with respect to the voting of such securities, or other
agreement or arrangement having similar effect; or
(vi) alone or in concert with others, seek, or encourage
or support any effort, to influence or control the management, Board
of Directors, business, policies, affairs or actions of the Company;
provided, however, that the foregoing shall not apply to any person
who is a director of the Company acting in his capacity as a director
of the Company during the course of meetings of the Board of Directors
of the Company or of any committee thereof or in response to a request
by the Chairman of the Board of the Company; or
(vii) request the Company (or any directors, officers,
employees or agents of the Company), directly or indirectly, to amend,
waive or modify any provision of this Section 9(a).
(b) Notwithstanding Section 9(a)(ii) hereof, each Seller may
sell, transfer any beneficial interest in or otherwise dispose of
Shares, provided that such sale, transfer or disposition:
(i) is pursuant to the Secondary Offering or is
otherwise in accordance with the rights of such Seller as contained in
that certain Registration Rights Agreement dated as of August 3, 1992,
between the Company and Apollo Interco Partners, L.P., (the
"Registration Rights Agreement");
(ii) is pursuant to a tender offer approved or
recommended by the Board of Directors of the Company; or
(iii) is after the consummation of the Secondary
Offering pursuant to privately negotiated or open market transactions
in compliance with any applicable securities laws or other legal
requirements.
(c) As used in this Agreement, the term "Standstill Period"
shall mean that period commencing on the date of this Agreement and
expiring on the second anniversary thereof; provided, however, that if
this Agreement is terminated pursuant to Section 13 or neither the
Company Repurchase nor the Secondary Offering is consummated by August
30, 1997, other than by reason of a breach or failure of a
representation by either of the Sellers of this Agreement or the
underwriting agreement relating to the Secondary Offering, the
Standstill Period shall terminate upon the termination of this
Agreement.
10. Confidentiality. (a) In connection with Apollo's and
Lion's participation, through certain representatives, on the
Company's Board of Directors, and in connection with the Consulting
Agreement described in section 25 hereof, Apollo and Lion have come
into the possession of, and may between the date hereof and the
Closing come into the possession of, certain non-public information
regarding the Company (the "Confidential Information"). Apollo and
Lion agree to treat confidentially such Confidential Information, and
not to use or disclose same for any purpose adverse to the interests
of the Company; provided, however, that (i) any disclosure of such
information may be made that, in Apollo's or Lion's opinion based on
advice of counsel, is required by the federal or state securities
laws.
(b) In the event that either Apollo and/or Lion are requested
or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or
similar process) to disclose any Confidential Information, Apollo
and/or Lion will provide the Company with prompt notice of such
request(s) and the documents requested thereby so that the Company may
at its expense seek an appropriate protective order and/or waive
compliance with the provisions of this letter agreement.
(c) The term "Confidential Information" as used herein does
not include information which: (i) was or becomes generally available
to the public other than as a result of a disclosure by Apollo or Lion
or their agents or representatives; (ii) was or becomes available to
Apollo or Lion on a non-confidential basis from a source other than
the Company or its representatives; or (iii) was within the possession
of Apollo or Lion prior to its being furnished by or on behalf of the
Company, provided that the source of such information was not known by
Apollo or Lion to be bound by a confidentiality agreement with the
Company in respect thereof.
11. Specific Performance. The parties acknowledge and agree
that in the event of any breach of this Agreement, the parties would
be irreparably harmed and could not be made whole by monetary damages.
It is accordingly agreed that the Company or either of the Sellers, in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of this
Agreement in any action instituted in the United States District Court
for the District in which Wilmington, Delaware is located (the
"Delaware Court"). Each Seller and the Company each irrevocably
consents and submits to personal jurisdiction in any action brought in
the Delaware Court; each agrees not to contest the propriety of venue
in the Delaware Court; and each agrees not to attempt to deny or
defeat such personal jurisdiction or venue by motion or other request
for leave from the Delaware Court. As part of the consideration for
the Company executing this Agreement, each Seller waives all personal
service of any and all process upon such Seller related to this
Agreement or the performance thereof and consents that all such
service of process upon such Seller shall be made by hand delivery,
certified mail or confirmed telecopy directed to such Seller at the
address specified in Section 20 hereof; and service made by certified
mail shall be complete seven days after the same shall have been
posted as aforesaid.
12. Expenses. Each of the Company and the Sellers shall bear
their own costs and expenses relating to the Company Repurchase and
the costs and expenses relating to the Secondary Offering shall be
allocated in accordance with the terms of the Registration Rights
Agreement.
13. Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual consent of the Company and both Sellers;
(b) by the Company or either Seller, if the Closing shall
not have occurred by the close of business on the 75th day following
the date on which the registration statement for the Secondary
Offering is filed; provided, however, that if the delay is due to a
breach of the obligations or failure of a representation of either
Seller under this Agreement or the underwriting agreement executed in
connection with the Secondary Offering, then neither Seller shall
have the right to terminate this Agreement pursuant to this Section
13(b); provided, further, that if the delay is due to a breach of the
obligations or failure of a representation of the Company under this
Agreement or the underwriting agreement executed in connection with
the Secondary Offering, then the Company shall not have the right to
terminate this Agreement pursuant to this Section 13(b);
(c) by the Sellers, if at any time they are advised by the
lead underwriter for the Secondary Offering as to the expected price
per Share for the Shares to be sold in the Secondary Offering and such
price is unacceptable to the Sellers;
(d) by the Company or either Seller, if the Closing shall not
have occurred, for any reason, by August 30, 1997; or
(e) by the Company or either Seller, if there shall have been
issued, by a court of competent jurisdiction, a preliminary, permanent
or final order, decree or injunction prohibiting or restraining
consummation of the transactions contemplated hereby.
Notwithstanding the foregoing, (i) the obligations of the Company and
the Sellers pursuant to Section 9 of this Agreement shall survive any
termination hereof except if the Standstill Period is terminated as
provided in Section 9(c) and (ii) the obligations of the Company and
the Sellers pursuant to Section 12 of this Agreement shall survive any
termination hereof.
14. Public Announcements. The Company and the Sellers agree
that the Company will issue the press release in the form attached
hereto as Exhibit A within one day after the date hereof.
15. Integration; Amendment; Waiver. This Agreement
constitutes the entire agreement, and supersedes all prior agreements
and understandings, whether oral or written, between the parties
hereto with respect to the subject matter hereof; provided, however,
that to the extent that any of the provisions of the Registration
Rights Agreement are not inconsistent with the terms of this
Agreement, all such provisions shall remain in full force and effect
and continue to govern the rights and obligations among the parties
with respect to the subject matter thereof. This Agreement may not be
modified, amended or waived orally, but only by an instrument in
writing signed by the party against whom enforcement of any such
amendment, modification or waiver is sought. The waiver by any party
hereto of a breach of any term or provision of this Agreement shall
not be construed as a waiver of any subsequent breach.
16. Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their heirs, legal
representatives, successors and assigns; provided, however, that the
Company may not assign its rights or delegate its obligations under
this Agreement without the express prior written consent of the
Sellers, and Sellers may not assign their rights or delegate their
obligations under this Agreement without the express prior written
consent of the Company.
17. Headings. Section headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
18. Survival. All representations, warranties and covenants
shall survive the Closing.
19. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall, when executed, be deemed
to be an original and all of which shall be deemed to be one and the
same instrument.
20. Notices. All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic
transmission service to the appropriate address or number as set forth
below.
Notices to the Sellers shall be addressed to:
Apollo Investment Fund, L.P
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Attention: Joshua J. Harris
Facsimile: (212) 261-4102
and/or
Lion Advisors, L.P.
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Attention: Michael S. Gross
Facsimile: (212) 261-4071
with copies to:
David A. Katz
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Facsimile: (212) 403-2309
or at such other address and to the attention of such other person as
Seller may designate by written notice to the Company.
Notices to the Company shall be addressed to:
Furniture Brands International, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attention: Lynn Chipperfield, Vice President,
General Counsel and Secretary
Facsimile: (314) 863-7047
with copies to:
Don G. Lents
Bryan Cave LLP
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
Facsimile: (314) 259-2020
or at such other address and to the attention of such other persons
the Company may designate by written notice to Seller.
21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
without reference to the choice of law principles thereof.
22. Severability. If at any time subsequent to the date
hereof any provision of this Agreement shall be held by any court of
competent jurisdiction to be illegal, void or unenforceable, such
provision shall be of no force and effect, but shall not effect the
illegality or unenforceability of any other provision of this
Agreement.
23. Interpretation. Wherever used herein, the term
"affiliate" has the meaning given such term in Rule 12b-2 promulgated
under the Exchange Act, and a person or entity who at any time may be
an affiliate of a Seller shall be deemed to be an affiliate of such
Seller while, but only while, such person or entity is an affiliate of
such Seller, regardless of whether such person or entity is such an
affiliate on the date hereof. For purposes of this Agreement, a
person or entity shall be deemed to "beneficially own" any securities
of which it would be the "beneficial owner," as such term is defined
in Rule 13d-3 promulgated under the Exchange Act.
24. Effect of Termination. A termination of this Agreement
as provided in Section 13 shall not release any party hereto from
liability for any breach of this Agreement.
25. Termination of Consulting Agreement. Upon the
consummation of the Company Repurchase, the obligations of the Company
(other than those obligations (including expense reimbursement)
accruing prior to Closing) pursuant to that certain Consulting
Agreement dated as of September 23, 1992 by and between the Company
and Apollo Advisors, L.P. shall be terminated.
IN WITNESS WHEREOF, this Agreement has been signed by or on
behalf of each of the parties as of the day first above written.
APOLLO INVESTMENT FUND, L.P.
By: Michael S. Gross
---------------------------
Name: Michael S. Gross
Title: Vice President
LION ADVISORS, L.P.
By: Michael S. Gross
---------------------------
Name: Michael S. Gross
Title: Vice President
FURNITURE BRANDS INTERNATIONAL, INC.
By: W.G. Holliman
---------------------------
Name: W.G. Holliman
Title: President and Chief Executive
Officer
Solely for the purpose of consenting to the termination of the
obligations of the Company pursuant to the Consulting Agreement, as
such termination is described in Section 25 hereof:
APOLLO ADVISORS, L.P.
By: Michael S. Gross
----------------------------
Name: Michael S. Gross
Title: Vice President