Exhibit 10.16
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), is made and entered
into as of the 19th day of February, 2002, by and between CHROMCRAFT REVINGTON,
INC. (the "Company"), a Delaware corporation with its principal office in
Delphi, Indiana, and COURT SQUARE CAPITAL LIMITED (the "Selling Shareholder"), a
Delaware corporation with its principal office in New York, New York and an
affiliate of Citigroup Inc.
W I T N E S S E T H :
WHEREAS, the Selling Shareholder owns 5,695,418 shares, comprising
approximately 59.1%, of the issued and outstanding shares of common stock of the
Company;
WHEREAS, the Selling Shareholder desires to sell and transfer to the
Company, and the Company desires to purchase from the Selling Shareholder,
3,695,418 shares of common stock of the Company (the "Shares") upon the terms
and subject to the conditions set forth herein (the "Company Purchase");
WHEREAS, concurrently with the consummation of the Company Purchase,
the Selling Shareholder will sell and transfer its remaining 2,000,000 shares of
common stock of the Company to an employee stock ownership plan to be formed by
the Company for the benefit of the Company's employees (the "ESOP"), and the
ESOP will purchase from the Selling Shareholder, such shares upon the terms and
subject to the conditions set forth in a separate stock purchase agreement (the
"ESOP Stock Purchase Agreement") between the Selling Shareholder and the trustee
of the ESOP (the "ESOP Purchase");
WHEREAS, upon consummation of the Company Purchase and the ESOP
Purchase, the Selling Shareholder will cease to be a shareholder of the Company;
and
WHEREAS, the Board of Directors of the Company has authorized and
approved the execution of this Agreement by the Company but has not authorized
or approved the consummation of the Company Purchase or the ESOP Purchase, and
the authorization and approval by the Company's Board of Directors in its sole
discretion of the Company Purchase and the ESOP Purchase is still required
before the Company Purchase and the ESOP Purchase may be consummated.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants, agreements and mutual obligations
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Selling
Shareholder hereby agree as follows:
SECTION 1
PURCHASE AND SALE OF THE SHARES
1.01. Purchase and Sale of the Shares. Upon the terms and subject to
the conditions set forth in this Agreement, at the Closing (as hereinafter
defined), the Selling Shareholder shall sell, transfer, assign and deliver to
the Company, and the Company shall purchase and acquire from the Selling
Shareholder, all right, title and interest in and to the Shares, free and clear
of any and all liens, pledges, security interests, charges, claims, options,
rights of first refusal, rights of conversion, exchange or purchase, and adverse
claims or rights whatsoever.
1.02. The Closing. The closing of the Company Purchase (the "Closing")
shall take place at the offices of Krieg DeVault LLP, One Indiana Square, Suite
2800, Indianapolis, Indiana and shall be effective as of 11:59 p.m.,
Indianapolis time, on March 15, 2002 (the "Effective Time"). The date on which
the Closing occurs shall be referred to herein as the "Closing Date." The place,
date and time of the Closing may be changed by mutual agreement of the parties.
1.03. (a) Purchase Price. The aggregate purchase price to be paid at
the Closing by the Company to the Selling Shareholder for the Shares shall be
Thirty-Six Million Nine Hundred Fifty- Four Thousand One Hundred Eighty Dollars
($36,954,180) (the "Purchase Price"), or Ten Dollars ($10.00) for each of the
Shares.
(b) Fee. In addition to the Purchase Price, the Company shall pay to
the Selling Shareholder and its designee at the Closing a total transaction fee
(the "Transaction Fee") of Fifty Cents ($0.50) for each share of common stock of
the Company sold by the Selling Shareholder to the Company and the ESOP;
provided, however, that the Transaction Fee shall not exceed Two Million Eight
Hundred Thousand Dollars ($2,800,000) in the aggregate.
1.04. Method of Payment. At the Closing, the Company shall pay in
immediately available funds by wire transfer to (a) the Selling Shareholder an
amount equal to the Purchase Price, and (b) the Selling Shareholder and its
designee an aggregate amount equal to the Transaction Fee, as specified on
Exhibit A hereto. At least 72 hours prior to the Closing, the Selling
Shareholder shall provide the Company with instructions for payment of the
Purchase Price and the Transaction Fee, including wire transfer instructions,
for itself and its designee.
1.05. Delivery of Stock Certificates. At the Closing, the Selling
Shareholder shall deliver to the Company the certificate or certificates
representing the Shares, duly endorsed in blank or accompanied by stock powers
duly endorsed in blank, in proper form for transfer.
1.06. Further Assurances. At the Company's request, the Selling
Shareholder shall, from time to time after the Closing, execute, acknowledge and
deliver such other documents, instruments and writings and shall take such other
actions as the Company may reasonably request in order to
-2-
give effect to the Company Purchase or otherwise as may be necessary to carry
out or evidence the transactions contemplated by this Agreement.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Selling Shareholder as
follows:
2.01. Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2.02. Authority; No Violations. (a) The Company has the requisite
corporate power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby
subject to the fulfillment of the conditions precedent set forth in Section 5.01
hereof. This Agreement and its execution and delivery by the Company have been
duly authorized and approved by the Board of Directors of the Company and,
subject to the fulfillment of the conditions precedent set forth in Section 5.01
hereof, constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms, except to the extent limited by general principles
of equity, by public policy and by bankruptcy, insolvency, reorganization,
liquidation, moratorium, readjustment of debt or other laws of general
application relating to or affecting the enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor the consummation of the
Company Purchase by the Company (with or without notice or lapse of time) or any
action taken by the Company in connection with the ESOP Purchase (i) conflicts
with or violates any provision of the Company's certificate of incorporation,
by-laws or other corporate governance document, (ii) conflicts with or violates
any law, statute, rule, regulation or governmental requirement or any court or
administrative judgment, order, injunction, writ, directive or decree, or (iii)
conflicts with, results in a breach of or constitutes a default under any note,
bond, indenture, mortgage, deed of trust, license, lease, contract, agreement,
understanding, arrangement, commitment, instrument or other writing to which the
Company is a party or by which the Company is subject or bound.
2.03. No Third Party Consents. No consent, approval, authorization,
clearance or waiver of or any filing with or notice to any third party or any
government agency or authority is required for the execution, delivery and
performance of this Agreement, the consummation of the Company Purchase by the
Company or any action taken by the Company in connection with the ESOP Purchase.
No approval of this Agreement or the ESOP Stock Purchase Agreement or the
Company Purchase, the ESOP Purchase or any of the transactions contemplated
hereby or thereby is required to be obtained from the stockholders of the
Company.
2.04. No Litigation or Pending Proceedings. (a) There are no claims,
actions, suits, proceedings, arbitrations, mediations or investigations pending
or, to the Company's knowledge,
-3-
threatened in any court or before any government agency or authority,
arbitration panel, mediator or otherwise (nor has any event occurred or
circumstance arisen that may give rise to or serve as a basis for any claim,
action, suit, proceeding, litigation, arbitration, mediation or investigation)
against, by or affecting the Company that may impact the consummation of the
Company Purchase or the ESOP Purchase.
(b) The Company is not (i) subject to any outstanding judgment, order,
writ, injunction, directive or decree of any court, arbitration panel or
governmental agency or authority, (ii) presently charged with or under
governmental investigation with respect to any actual or alleged violations of
any law, statute, rule, regulation or other governmental requirement, or (iii)
the subject of any pending or threatened proceeding by any government regulatory
agency or authority having jurisdiction over its business, properties or
operations, which may impact any of the Shares or the consummation of the
Company Purchase or the ESOP Purchase.
2.05. Broker's, Finder's and Other Fees. No agent, broker, investment
banker, consultant, representative or other person acting on behalf of the
Company or under the authority of the Company is or shall be entitled to any
commission, broker's or finder's fee or any other form of compensation or
payment from the Company relating to this Agreement or the Company Purchase,
other than the Transaction Fee and other than the attorneys, accountants and tax
or financial advisors of the Company in connection with this Agreement and the
Company Purchase.
2.06. Bring-Down of Representations and Warranties. All representations
and warranties of the Company set forth in this Agreement shall be true,
accurate and complete, and shall be deemed made again, on and as of the
Effective Time.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER
The Selling Shareholder hereby represents and warrants to the Company as
follows:
3.01. Organization. The Selling Shareholder is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.02. Authority; No Violations. (a) The Selling Shareholder has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder subject to the fulfillment of the conditions
precedent set forth in Section 5.02 hereof. This Agreement and its execution and
delivery by the Selling Shareholder have been duly authorized and approved by
the Board of Directors or other appropriate committee of the Selling Shareholder
and no other authorizations or approvals by the Selling Shareholder or any
parent or affiliate of the Selling Shareholder are required for the Selling
Shareholder to execute and deliver this Agreement and to consummate the Company
Purchase. Subject to the fulfillment of the conditions precedent set forth in
Section 5.02 hereof, this Agreement constitutes a valid and binding obligation
of the Selling
-4-
Shareholder, enforceable in accordance with its terms, except to the extent
limited by general principles of equity, by public policy and by bankruptcy,
insolvency, reorganization, liquidation, moratorium, readjustment of debt or
other laws of general application relating to or affecting the enforcement of
creditors' rights.
(b) Neither the execution of this Agreement nor the consummation of the
Company Purchase by the Selling Shareholder (with or without notice or lapse of
time) (i) conflicts with or violates any provision of the Selling Shareholder's
certificate of incorporation, by-laws or other corporate governance document,
(ii) conflicts with or violates any law, statute, rule, regulation or
governmental requirement or any court or administrative judgment, order,
injunction, writ, directive or decree, (iii) conflicts with, results in a breach
of or constitutes a default under any note, bond, indenture, mortgage, deed of
trust, license, lease, contract, agreement, understanding, arrangement,
commitment, instrument or other writing to which the Selling Shareholder is a
party or by which the Selling Shareholder is subject or bound, (iv) gives any
person, proprietorship, partnership, limited liability company, corporation
(other than the Company), other entity or third party the right to acquire any
of the Shares or any interest in any of the Shares, or (v) results in any lien,
pledge, security interest, charge, claim, option, right of first refusal, right
of conversion, exchange or purchase, or adverse claim or right being placed upon
or relating to any of the Shares.
3.03. Ownership. The Selling Shareholder is the sole lawful owner of
record, and together with its affiliates beneficially, of the Shares. The Shares
are free and clear of any and all liens, pledges, security interests, charges,
claims, options, rights of first refusal, rights of conversion, exchange or
purchase, and adverse claims or rights. The Selling Shareholder is not a party
to or bound by any buy-sell or other agreement, understanding or commitment with
respect to any of the Shares, other than this Agreement and the ESOP Stock
Purchase Agreement.
3.04. No Third Party Consents. No consent, approval, authorization,
clearance or waiver of or any filing with or notice to any third party or any
government agency or authority not already obtained is required for the
execution, delivery and performance of this Agreement or the consummation of the
Company Purchase by the Selling Shareholder. No approval not already obtained of
this Agreement or the ESOP Stock Purchase Agreement or the Company Purchase, the
ESOP Purchase or any of the transactions contemplated hereby or thereby is
required to be obtained from the stockholders or any parent or affiliate of the
Selling Shareholder.
3.05. No Litigation or Pending Proceedings. (a) There are no claims,
actions, suits, proceedings, arbitrations, mediations or investigations pending
or, to the Selling Shareholder's knowledge, threatened in any court or before
any government agency or authority, arbitration panel, mediator or otherwise
(nor has any event occurred or circumstance arisen that may give rise to or
serve as a basis for any claim, action, suit, proceeding, litigation,
arbitration, mediation or investigation) against, by or affecting the Selling
Shareholder that may impact any of the Shares or the consummation of the Company
Purchase or the ESOP Purchase.
-5-
(b) The Selling Shareholder is not (i) subject to any outstanding
judgment, order, writ, injunction, directive or decree of any court, arbitration
panel or governmental agency or authority, (ii) presently charged with or under
governmental investigation with respect to any actual or alleged violations of
any law, statute, rule, regulation or other governmental requirement, or (iii)
the subject of any pending or threatened proceeding by any government regulatory
agency or authority having jurisdiction over its business, properties or
operations, which may impact any of the Shares or the consummation of the
Company Purchase or the ESOP Purchase.
3.06. Broker's, Finder's and Other Fees. No agent, broker, investment
banker, consultant, representative or other person acting on behalf of the
Selling Shareholder or under the authority of the Selling Shareholder is or
shall be entitled to any commission, broker's or finder's fee or any other form
of compensation or payment from the Selling Shareholder relating to this
Agreement or the Company Purchase other than the Transaction Fee and other than
the attorneys, accountants and tax or financial advisors of the Selling
Shareholder in connection with this Agreement and the Company Purchase.
3.07. Bring-Down of Representations and Warranties. All representations
and warranties of the Selling Shareholder set forth in this Agreement shall be
true, accurate and complete, and shall be deemed made again, on and as of the
Effective Time.
SECTION 4
COVENANTS
4.01. Covenants of the Company.
(a) Between the date hereof and the Closing Date, subject to commercial
reasonableness, the Company shall not take any action that would result in or
fail to take any action that would prevent, and shall not permit its directors,
employees, affiliates or agents to take any action that would result in or fail
to take any action that would prevent, a breach of any representation, warranty
or covenant of the Company set forth in this Agreement.
(b) The Company shall pay the reasonable fees and expenses of the
Selling Shareholder's legal counsel in connection with this Agreement, the ESOP
Stock Purchase Agreement, the Company Purchase and the ESOP Purchase, up to One
Hundred Thousand Dollars ($100,000) in the aggregate.
(c) Any and all Taxes (as hereinafter defined) incurred by the Company
by virtue of or relating to the Company Purchase and the ESOP Purchase shall be
paid by the Company and, in addition, the Company shall pay the Taxes as set
forth in Exhibit B attached hereto.
-6-
4.02. Covenants of the Selling Shareholder.
(a) Between the date hereof and the Closing Date, subject to commercial
reasonableness, the Selling Shareholder shall not take any action that would
result in or fail to take any action that would prevent, and shall not permit
its directors, employees, affiliates or agents to take any action that would
result in or fail to take any action that would prevent, a breach of any
representation, warranty or covenant of the Selling Shareholder set forth in
this Agreement.
(b) Any and all Taxes (as hereinafter defined) incurred by the Selling
Shareholder by virtue of or relating to the Company Purchase or the ESOP
Purchase shall be paid by the Selling Shareholder, except as set forth in
Exhibit B attached hereto.
4.03. Definition of "Taxes". For purposes of this Agreement, the term
"Taxes" shall mean any and all federal, state, county, local, foreign or other
income, gross receipts, capital gain, franchise, excise, withholding, personal
property, transfer, value added, alternative or add-on minimum and other taxes,
assessments, fees and charges (whether known, unknown, absolute, fixed, matured,
unmatured, contingent or otherwise and whether due or to become due), including,
without limitation, any and all interest, penalties and additions to tax in
respect of the foregoing, whether or not disputed, and any liability or
obligation to indemnify, assume or succeed to any of the foregoing.
SECTION 5
CONDITIONS PRECEDENT TO CLOSING
5.01. The Company. The obligation of the Company to consummate the
Company Purchase is subject to the satisfaction and fulfillment of each of the
following conditions at or prior to the Closing unless waived in writing by the
Company:
(a) Delivery of Stock Certificates. The Selling Shareholder shall have
delivered to the Company the certificate or certificates representing the
Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in
blank, in proper form for transfer and dated as of the Closing Date.
(b) Corporate Action of Selling Shareholder. The Board of Directors or
other appropriate committee of the Selling Shareholder shall have authorized and
approved this Agreement, the ESOP Stock Purchase Agreement, the Company Purchase
and the ESOP Purchase, and the Selling Shareholder shall have taken all other
corporate action necessary for the Selling Shareholder to consummate the Company
Purchase and the ESOP Purchase.
(c) Representations and Warranties of the Selling Shareholder. Each of
the representations and warranties of the Selling Shareholder set forth in this
Agreement shall be true, accurate and complete at and as of the Effective Time.
-7-
(d) Compliance with Covenants. The Selling Shareholder shall have
complied with all of its covenants and agreements set forth in Section 4.02 of
this Agreement.
(e) No Lawsuits or Proceedings. No action, suit or proceeding before any
court or governmental or regulatory authority shall be pending against the
Company, the Selling Shareholder or any of their respective directors or
officers seeking to restrain, prevent, limit or change the Company Purchase, the
ESOP Purchase or the related transactions contemplated hereby or by the ESOP
Stock Purchase Agreement or questioning the legality or validity of any such
transactions or seeking damages in connection with any such transactions.
(f) Officer's Certificate. The Selling Shareholder shall have delivered
to the Company a certificate of the Selling Shareholder's Vice President
certifying that the conditions set forth in Sections 5.01(a), (b), (c), (d) and
(e) hereof have been satisfied and fulfilled.
(g) Opinion of Counsel. The Company shall have received from Dechert,
counsel to the Selling Shareholder, an opinion, dated as of the Closing Date, in
form and substance substantially as set forth in Exhibit C attached hereto.
(h) Fairness Opinion. The Company shall have received an opinion with
respect to the Company Purchase and the ESOP Purchase from Houlihan Lokey Howard
& Zukin Financial Advisors, Inc., financial advisor to the Company, in form and
substance reasonably satisfactory to the Board of Directors of the Company.
(i) Bank Financing. The Company and its lenders shall have executed a
credit agreement providing for a $75,000,000 credit facility on terms and
conditions reasonably satisfactory to the Company.
(j) ESOP Purchase. The ESOP Purchase shall have been consummated
concurrently with the consummation of the Company Purchase.
(k) Resignation. M. Saleem Muqaddam shall have resigned from the Board
of Directors of the Company, effective immediately following the Effective Time.
(l) Corporate Action of the Company. The Company's Board of Directors
shall have authorized and approved this Agreement, the ESOP Stock Purchase
Agreement, the Company Purchase and the ESOP Purchase, and the Company shall
have taken all other corporate action necessary for the Company to consummate
the Company Purchase and the ESOP Purchase.
5.02. The Selling Shareholder. The obligation of the Selling Shareholder
to consummate the Company Purchase is subject to the satisfaction and
fulfillment of each of the following conditions at or prior to the Closing,
unless waived in writing by the Selling Shareholder:
-8-
(a) Payment of Purchase Price and Transaction Fee. The Company shall
have paid the Purchase Price and the Transaction Fee in accordance with Sections
1.03 and 1.04 hereof.
(b) Corporate Action. The Company's Board of Directors shall have
authorized and approved this Agreement, the ESOP Stock Purchase Agreement, the
Company Purchase and the ESOP Purchase, and the Company shall have taken all
other corporate action necessary for the Company to consummate the Company
Purchase and the ESOP Purchase.
(c) Representations and Warranties of the Company. Each of the
representations and warranties of the Company set forth in this Agreement shall
be true, accurate and complete at and as of the Effective Time.
(d) Compliance with Covenants. The Company shall have complied with all
of its covenants and agreements set forth in Section 4.01 of this Agreement.
(e) No Lawsuits or Proceedings. No action, suit or proceeding before any
court or governmental or regulatory authority shall be pending against the
Company, the Selling Shareholder or any of their respective directors or
officers seeking to restrain, prevent, limit or change the Company Purchase, the
ESOP Purchase or the related transactions contemplated hereby or by the ESOP
Stock Purchase Agreement or questioning the legality or validity of any such
transactions or seeking damages in connection with any such transactions.
(f) Officer's Certificate. The Company shall have delivered to the
Selling Shareholder a certificate of the Company's President certifying that (i)
the conditions set forth in Sections 5.02(a), (b), (c), (d) and (e) hereof have
been satisfied and fulfilled, and (ii) attached thereto are copies of the
resolutions duly adopted by the Board of Directors of, and evidence of all other
corporate action taken by, the Company authorizing and approving this Agreement,
the Company Purchase and the ESOP Purchase.
(g) Opinion of Counsel. The Selling Shareholder shall have received from
Krieg DeVault LLP, counsel to the Company, an opinion, dated as of the Closing
Date, in form and substance substantially as set forth in Exhibit D attached
hereto.
(h) ESOP Purchase. The ESOP Purchase shall have been consummated
concurrently with the consummation of the Company Purchase.
SECTION 6
TERMINATION OF AGREEMENT
6.01. Manner of Termination. This Agreement may be terminated and the
Company Purchase abandoned at any time prior to the Effective Time by written
notice delivered in accordance with Section 8.02 hereof, as follows:
-9-
(a) By either the Company or the Selling Shareholder, if:
(i) the Company Purchase contemplated by this Agreement has not
been consummated on or before March 15, 2002; or
(ii) the Selling Shareholder and the Board of Directors of the
Company mutually agree in writing to terminate this
Agreement.
(b) By the Company, if:
(i) there has been a material misrepresentation or a material
breach of any warranty by or on the part of the Selling
Shareholder in its representations and warranties set forth
in this Agreement; or
(ii) there has been a material breach of or a material failure to
comply with any covenant set forth in this Agreement by or
on the part of the Selling Shareholder.
(c) By the Selling Shareholder, if:
(i) there has been a material misrepresentation or a material
breach of any warranty by or on the part of the Company in
its representations and warranties set forth in this
Agreement; or
(ii) there has been a material breach of or material failure to
comply with any covenant set forth in this Agreement by or
on the part of the Company.
6.02. Effect of Termination. Upon termination of this Agreement in
accordance with Section 6.01 hereof, this Agreement shall be of no further force
or effect (except that Sections 4.01(b), 8.10 and 8.12 hereof shall survive any
such termination) and the Company Purchase shall be deemed to be abandoned, and
there shall be no obligation of or liability to any party hereto, or their
respective shareholders, affiliates, directors, officers, employees,
representatives or agents; provided, however, that if such termination was the
result of an intentional breach of any representation, warranty or covenant in
this Agreement, or an intentional act or omission which resulted in any
representation, warranty or covenant in this Agreement to be breached, then the
party who committed the intentional breach, act or omission shall be liable to
the other party hereto for all out-of-pocket costs and expenses (but no damages)
incurred by the other party in connection with the Company Purchase and the ESOP
Purchase, including, without limitation, reasonable attorneys' fees and expenses
and the fees and expenses of the financial advisor for the Company, the trustee
of the ESOP, the financial advisor for the ESOP and legal counsel for the ESOP;
and provided further, however, that notwithstanding anything contained herein to
the contrary, the Company shall in all cases be liable for the fees and expenses
of the Selling Shareholder's legal counsel pursuant to Section 4.01(b) hereof.
-10-
SECTION 7
INDEMNIFICATION
7.01. Indemnification by the Company. The Company hereby agrees to
reimburse, indemnify, defend and hold harmless the Selling Shareholder for, from
and against each and every Loss (as hereinafter defined) incurred by the Selling
Shareholder based upon, arising out of or relating to (a) any inaccuracy in or
breach of any representation or warranty of the Company set forth in this
Agreement or in any of the certificates or other documents delivered to the
Selling Shareholder in connection with the Closing, (b) any breach of any
covenant of the Company set forth in this Agreement, (c) the Company Purchase
and the ESOP Purchase, and (d) the enforcement of this Section 7.01 against the
Company; provided, however, that in no event shall the Company reimburse,
indemnify, defend or hold harmless, or be liable to, the Selling Shareholder or
any direct or indirect parent, subsidiary, affiliate, successor or assign of the
Selling Shareholder for or in connection with any Loss caused by or relating to
(i) any Taxes incurred by the Selling Shareholder by virtue of or relating to
the Company Purchase and the ESOP Purchase, except as set forth in Exhibit B
attached hereto, (ii) any breach of any of the Selling Shareholder's
representations, warranties or covenants set forth in this Agreement or any
other breach by the Selling Shareholder of this Agreement, or (iii) any fraud or
willful misconduct of the Selling Shareholder.
7.02. Indemnification by the Selling Shareholder. The Selling
Shareholder hereby agrees to reimburse, indemnify, defend and hold harmless the
Company for, from and against each and every Loss (as hereinafter defined)
incurred by the Company based upon, arising out of or relating to (a) any
inaccuracy in or breach of any representation or warranty of the Selling
Shareholder set forth in this Agreement or in any of the certificates or other
documents delivered to the Company in connection with the Closing, (b) any
breach of any covenant of the Selling Shareholder set forth in this Agreement,
and (c) the enforcement of this Section 7.02 against the Selling Shareholder;
provided, however, that in no event shall the Selling Shareholder reimburse,
indemnify, defend or hold harmless, or be liable to, the Company or any direct
or indirect parent, subsidiary, affiliate, successor or assignee of the Company
for or in connection with any Loss caused by or relating to (i) any Taxes
incurred by the Company by virtue of or relating to the Company Purchase or the
ESOP Purchase, (ii) any breach of any of the Company's representations,
warranties or covenants set forth in this Agreement or any other breach by the
Company of this Agreement, or (iii) any fraud or willful misconduct of the
Company.
7.03. Notice and Opportunity to Defend Certain Claims. Promptly after
(a) receipt by any party hereto of notice of the assertion of any action or
claim against such party, or (b) the discovery by any party hereto of any Loss
giving rise to indemnification hereunder, in each case with respect to which
such party is entitled to indemnification hereunder, such party (the
"Indemnified Party") shall give the party that may become obligated to provide
indemnification hereunder (the "Indemnifying Party") written notice describing
such action, claim or Loss in reasonable detail (an "Indemnification Notice").
If the Indemnified Party fails to give the Indemnification Notice in a timely
manner and the Indemnifying Party is materially prejudiced in its defense by
such failure, then
-11-
the Indemnifying Party's liability with respect to such action, claim or Loss
shall be reduced to the extent of such prejudice. Except as otherwise provided
in this Section 7.03, the Indemnifying Party shall have the right, at its
option, to defend, at its own expense and through counsel of its own choosing,
and to control the defense of any such action or claim against the Indemnified
Party; provided, however, that such counsel shall be reasonably satisfactory to
the Indemnified Party. If counsel satisfactory to the Indemnified Party is not
selected by the Indemnifying Party within thirty (30) days of any
Indemnification Notice, then the Indemnified Party may select counsel to defend
any such action or claim and, in such event, the Indemnifying Party shall be
responsible for and pay all reasonable attorneys' fees, costs and expenses of
such counsel, and the Indemnifying Party shall no longer be entitled to select
counsel with respect to or control the defense of such action or claim.
If the Indemnifying Party intends to undertake to defend an action or claim
against an Indemnified Party, then the Indemnifying Party shall give a written
notice (a "Defense Election Notice") to the Indemnified Party of its intention
to do so within thirty (30) days of the Indemnification Notice to which such
action or claim relates.
Whether or not the Indemnifying Party chooses to so defend such action
or claim, the parties hereto shall cooperate in the defense thereof and shall
furnish such records, information and testimony, attend such settlement or other
conferences, discovery proceedings, mediations, hearings, trials and appeals and
respond to such discovery and other requests as may be reasonably requested in
connection therewith. The Indemnified Party shall not compromise or settle any
action, claim or Loss as to which indemnification hereunder is sought without
the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld. The Indemnifying Party shall not compromise or settle any
action, claim or Loss as to which indemnification hereunder is sought without
the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld. Notwithstanding an election by the Indemnifying Party to
assume the defense of any action or claim, the Indemnified Party shall have the
right to employ separate counsel and to participate in, but not control, the
defense of such action or claim at the sole cost of the Indemnified Party.
Notwithstanding anything contained herein to the contrary, the
Indemnified Party shall have the right to employ its own counsel in any action
or claim, to control the defense of such action or claim and to require the
Indemnifying Party to pay all reasonable fees and expenses of such counsel, if
(a) the use of counsel chosen by the Indemnifying Party to represent the
Indemnified Party would result in a conflict of interest for such counsel in the
representation of the Indemnified Party, (b) the Indemnified Party shall not
have assumed the defense of the action or claim and employed counsel reasonably
satisfactory to the Indemnified Party within the time limits set forth herein,
or (c) the Indemnifying Party shall authorize in writing the Indemnified Party
to employ separate counsel at the Indemnifying Party's expense.
7.04. Definition of "Loss". As used in this Section 7, the term "Loss"
shall mean any and all actual or threatened losses, claims, demands, damages,
awards, liabilities, obligations, judgments, settlements, fines, penalties,
interest, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses).
-12-
7.05. Duration. Any claim for indemnification hereunder shall be made
within two (2) years following the Closing Date. Once a claim for
indemnification hereunder has been timely made, the indemnification obligation
of the Company or the Selling Shareholder, as the case may be, shall remain in
full force and effect and binding upon it until such claim has been paid in full
or settled with the prior written consent of the Indemnified Party,
notwithstanding that such two (2) year period has expired.
SECTION 8
MISCELLANEOUS
8.01. Survival. All representations and warranties of the Company and
the Selling Shareholder, respectively, set forth in this Agreement shall survive
the Closing for a period of two (2) years following the Closing Date. The
covenants of the Company set forth in Sections 4.01(b) and 4.01(c) hereof, and
the covenant of the Selling Shareholder set forth in Section 4.02(b) hereof,
shall survive the Closing and remain in full force and effect and binding upon
the Company and the Selling Shareholder, respectively, indefinitely.
8.02. Notices. All notices, requests and other communications hereunder
shall be in writing (which shall include fax communication) and shall be deemed
to have been duly given if (a) delivered by hand, (b) delivered by certified
United States Mail, return receipt requested, first class postage pre-paid, (c)
delivered by overnight receipted delivery service, or (d) faxed if confirmed
thereafter by also mailing a copy of such notice, request or other communication
by regular United States Mail, first class postage pre-paid on the next business
day, as follows:
If to the Company: with a copy to (which shall not
constitute notice):
CHROMCRAFT REVINGTON, INC. KRIEG DEVAULT LLP
1100 North Washington Street One Indiana Square, Suite 2800
Delphi, Indiana 46923 Indianapolis, Indiana 46204
ATTN: Frank T. Kane, Vice President ATTN: Nicholas J. Chulos, Esq.
Telephone: (317) 564-3500 Telephone: (317) 636-4341
Fax: (317) 564-6673 Fax: (317) 636-1507
-13-
If to the Selling Shareholder: with a copy to (which shall not
constitute notice):
COURT SQUARE CAPITAL LIMITED DECHERT
399 Park Avenue 4000 Bell Atlantic Tower
New York, New York 10043 1717 Arch Street
ATTN: Michael T. Bradley, Philadelphia, Pennsylvania 19103
Vice President ATTN: Christopher G. Karras, Esq.
Telephone: (212) 559-1120 Telephone: (215) 994-2412
Fax: (212) 888-2940 Fax: (215) 994-2222
or such substituted address or person as any party has given to the other
parties in writing.
All such notices, requests and other communications shall be effective
(a) if delivered by hand, when delivered, (b) if mailed in the manner provided
herein, two (2) business days after deposit with the United States Postal
Service, (c) if delivered by overnight receipted delivery service, on the next
business day after deposit with such service, and (d) if by fax, on the day the
fax is completed as shown on the written fax confirmation.
8.03. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that no party hereto may assign this Agreement
without the prior written consent of the other party.
8.04. Benefits. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity other than the parties hereto and
their respective permitted successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
8.05. Amendment. This Agreement may be amended, modified or supplemented
only by a written agreement executed by the parties hereto.
8.06. Waiver. Any party hereto may waive, in writing, the performance by
the other party of any of the covenants or agreements to be performed by such
other party under this Agreement or any breach or noncompliance under this
Agreement by such other party. Any such waiver shall not operate or be construed
as a continuing waiver or a waiver of any other or subsequent nonperformance,
breach or noncompliance hereunder. No failure or delay in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right or remedy hereunder or otherwise.
8.07. Headings. The headings in this Agreement have been inserted solely
for ease of reference and should not be considered in the interpretation or
construction of this Agreement.
-14-
8.08. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision or provisions had never been
contained herein.
8.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
8.10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
any choice or conflict of law provisions, principles or rules (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
any laws of any jurisdiction other than the State of Delaware.
8.11. Entire Agreement. This Agreement supersedes all other prior
understandings, commitments, representations, negotiations and agreements,
whether oral or written, between the parties hereto relating to the matters
contemplated hereby and constitutes the entire agreement between the parties
hereto relating to the subject matter hereof. The parties hereto agree that the
proposal letter dated January 10, 2002 from the Company and accepted by the
Selling Shareholder shall be terminated and be of no further force or effect as
of the Closing Date.
8.12. Expenses. Each party hereto shall pay its own respective costs and
expenses related to this Agreement and the Company Purchase, except as
contemplated by Sections 4.01(b) and 6.02 hereof.
8.13. Certain References. Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. All references to the masculine, feminine or neuter genders shall
include any other gender, as the context requires.
8.14. Construction. This Agreement is the product of negotiation by the
parties hereto and shall be deemed to have been drafted by the parties hereto.
This Agreement shall be construed in accordance with the fair meaning of its
provisions and its language shall not be strictly construed against, nor shall
ambiguities be resolved against, any party.
8.15. Facsimile Delivery. This Agreement, once executed by any party
hereto, may be delivered to the other party by facsimile transmission.
8.16. Recitals. The recitals, premises and "Whereas" clauses contained
on page 1 of this Agreement are expressly incorporated into and made a part of
this Agreement.
* * * *
-15-
IN WITNESS WHEREOF, the Company and the Selling Shareholder have made,
entered into and executed this Agreement as of the day and year first above
written.
CHROMCRAFT REVINGTON, INC.
By:
--------------------------------
Michael E. Thomas
President
COURT SQUARE CAPITAL LIMITED
By:
--------------------------------
Name:
Title:
-16-