EXHIBIT 10(C)
PURCHASE AGREEMENT
Agreement made this 3rd day of April, 1995 among CHARTERHOUSE EQUITY
PARTNERS, L.P. ("CEP"), NORTHERN & MIDLAND NOMINEES LIMITED ("N&M") AND GEORGE
SBORDONE ("Sbordone") (CEP, N&M and Sbordone are each from time to time
hereinafter individually referred to as a "Seller" and collectively referred to
as the "Sellers"), and ENERGY ABSORPTION SYSTEMS, INC. ("Buyer").
WHEREAS, pursuant to the Limited Liability Company Agreement effective
as of January 4, 1993, a copy of which is annexed hereto as Exhibit A (the "LLC
Agreement"), the Sellers acquired certain membership interests (the "Interests")
in Quantic Holdings L.L.C. ("Holdings"); and
WHEREAS, effective January 4, 1993, Sbordone acquired 49.9 shares (the
"Shares") of Class A Common Stock, par value $.01 per share, of Quantic
Industries, Inc. ("Industries"); and
WHEREAS, the Sellers desire to sell, transfer and convey all of their
Interests and Sbordone desires to sell, transfer and convey all of his Shares,
and Buyer desires to acquire all of such Interests and Shares.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I
Transfer and Shares of Interest
1.1 Transfer of Interests and Shares. Subject to the terms and
conditions of this Agreement, simultaneously herewith (i) Sellers will sell,
transfer and convey to Buyer all of their Interests and Buyer will purchase from
Sellers all of their Interests and (ii) Sbordone will sell, transfer and convey
to Buyer all of his Shares and Buyer will purchase from Sbordone all of his
Shares.
1.2 Consideration. Subject to the terms and conditions of this
Agreement, and in consideration of the sale, conveyance and transfer of the
Interests and Shares provided in Section 1.1 above, Buyer shall, (i)
simultaneously herewith, deliver to Sellers, by wire transfer of immediately
available funds to the account set forth on Exhibit B annexed hereto, an
aggregate of Seven Million Four Hundred and Ninety Six Thousand U.S.
Dollars ($7,496,000) and (ii) promptly cause Industries to issue to Sellers the
Warrants (as hereinafter defined). For purposes of this Agreement, the term
"Warrants" shall mean warrants to purchase three percent (3%) of the equity of
Industries for an aggregate purchase price of $500,000; provided, however, that
in the event of the combination of the businesses of Industries and Buyer, the
Warrants shall entitle the Sellers to purchase, for an aggregate purchase price
of $500,000, not less than nine-tenths of one percent of the combined company.
The Warrants shall expire on the fifth anniversary of the date hereof. The
Warrants shall be in a form to be agreed to by Buyer and Sellers and shall
contain customary anti-dilution and registration rights provisions.
1.3 Delivery by Sellers. Simultaneously herewith Sellers will
delivery to Buyer the following:
(a) an assignment duly executed by the Sellers in substantially
the form annexed hereto as Exhibit C of all of their Interests.
(b) either (i) stock certificates representing the Shares
accompanied by appropriate stock powers or (ii) an Affidavit of Lost Stock
Certificate, in either case executed by Sbordone;
(c) a duly executed consent to the transfer of the Seller's
Interests required by Article VI of the LLC Agreement;
(d) a duly executed waiver of the restrictions on transfer
contained in Section 2 of the Stockholders Agreement dated as of January 4, 1993
among Holdings, Industries, Sbordone and the other stockholders of Industries, a
copy of which is annexed hereto as Exhibit D (the "Stockholders Agreement");
(e) a duly executed assignment of Sbordone's rights and
obligations under the Members Agreement dated as of January 4, 1993 among
Holdings, Sbordone and certain other parties, a copy of which is annexed hereto
as Exhibit E (the "Members Agreement"); and
(f) resignations from all offices and from the Management
Committee of Holdings duly executed by George Sbordone and Jerome Katz and a
resignation from all offices and as a director of Industries duly executed by
Sbordone.
1.4 Deliveries by Buyer. Simultaneously herewith Buyer will deliver
to Sellers the following:
(a) the consideration provided in Section 1.2 above; and
(b) a duly executed agreement to be bound by and subject to the
terms of the Stockholders Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby severally represent and warrant to Buyer as follows:
2.1 Title to Interest and Shares. Each of the Sellers is the lawful
owner (of record and beneficially) of the Interests set forth opposite such
Seller's name on Exhibit A to the LLC Agreement and has, and is transferring to
Buyer simultaneously herewith, good and marketable title to such Interests free
and clear of (i) any and all of the following: security
interests, liens, pledges, claims of third parties, charges, escrows,
encumbrances, mortgages,indentures, or security agreements; and (ii) except for
the LLC Agreement and the Members Agreement, all other agreements,
understandings or restrictions (other than restrictions arising under state and
federal security laws) affecting the voting rights and other incidents of record
or beneficial ownership pertaining thereto. Sbordone is the lawful owner (of
record and beneficially) of the Shares and has and is transferring to Buyer
simultaneously herewith, good and marketable title to such Shares free and clear
of any and all Encumbrances and, except for the Stockholders Agreement, free and
clear of all other agreements, understandings or restrictions (other than
restrictions arising under state and federal securities Laws) affecting the
voting rights and other incidents of record or beneficial ownership pertaining
thereto.
2.2 Authorization, Etc. Each of the Sellers has full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. Each of the Sellers has taken all action required by law
or otherwise to be taken to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. This
Agreement is a valid and binding agreement of each Seller enforceable against
such Seller in accordance with its terms, except that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
3.1 Authorization, Etc. Buyer has full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby.
Buyer has taken all action required by law or otherwise to be taken to authorize
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement is a valid and binding
agreement of Buyer enforceable against Buyer in accordance with its terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights.
3.2 Investment Intent. Buyer is purchasing the Interests and the
Shares for its own account, for investment and not with a view to, or for resale
in connection with, any distribution thereof, except in compliance with all
applicable state and federal securities laws.
ARTICLE IV
BUSINESS OF HOLDINGS AND INDUSTRIES
4.1 Buyer acknowledges that Sellers are making no representations or
warranties regarding the business, prospects, assets, operations or financial
condition of Holdings or Industries.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Amendment and Modification. This agreement may be amended,
modified and supplemented by the parties hereto only by written instrument
signed by or on behalf of each of the parties hereto by their duly authorized
officers or representatives.
5.2 Waiver of Compliance. Any failure of Sellers or Buyer to comply
with any obligation, covenant, agreement or condition herein may be expressly
waived in writing by the other parties, but such waiver of failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with resect to any subsequent or
other failure.
5.3 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, certified or registered mail,
with postage prepaid as follow:
If to Sellers:
c/o Charterhouse Group International, Inc.
535 Madison Avenue
New York, NY 10022
Attn: Jerome L. Katz, President
With a copy to:
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, NY 10036
Attn: Stephen W. Rubin, Esq.
If to Buyer:
Energy Absorption Systems, Inc.
One East Wacker Drive
30th Floor
Chicago, IL 60601
Attn: George D. Ebersole
With a copy to:
McBride Baker & Coles
500 West Madison Street
Chicago, IL 60661
Attn: Anne Hamblin Schiave, Esq.
or to such other person or address as any party shall furnish in writing to the
other parties hereto.
5.4 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
principles of conflict of laws.
5.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
5.7 Headings. The headings of the sections and articles of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
5.8 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto in resect of the subject matter
contained herein, and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any party hereto or by any officer, employee or representative of
any party hereto.
5.9 Severability. In the event that any term or provision of this
Agreement shall, for any reason, be held to be illegal, invalid or unenforceable
under the laws, regulations or ordinances of any federal, state or local
government authority to which this Agreement is subject, such term or provision
shall be deemed severed from this Agreement, and the remaining terms and
provisions will be unaffected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
Charterhouse Equity Partners, L.P.
By: Chusa Equity Investors, L.P.
General Partner
By: Chusa Equity, Inc.,
General Partner
By: /s/Jerome L. Katz
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Jerome L. Katz, President
Northern & Midland Nominees Limited
By: Charterhouse Group International,
Inc., Attorney-in-Fact
By: /s/Jerome L. Katz
-------------------------------------
Jerome L., Katz, President
/s/George Sbordone
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George Sbordone
Energy Absorption Systems, Inc.
By: /s/Philip E. Rollhaus, Jr.
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Philip E. Rollhaus, Jr., Chairman