1
EXHIBIT 10.30
AGREEMENT OF MERGER
AMONG
J. BAKER, INC.,
JBAK ACQUISITION CORP.
AND
TISHKOFF ENTERPRISES, INC.
2
AGREEMENT OF MERGER, dated as of December 3, 1993, by and among J.
Baker, Inc., a Massachusetts corporation ("Acquiror"), JBAK Acquisition Corp.,
an Ohio corporation and a wholly owned subsidiary of Acquiror ("Sub"), and
Tishkoff Enterprises, Inc., an Ohio corporation ("Seller").
INTENDING TO BE LEGALLY BOUND, and in consideration of the premises
and mutual covenants and agreements contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Acquiror, Sub and Seller hereby agree as follows:
ARTICLE I
THE MERGER
1.1 Merger; Effective Time of the Merger. Subject to the terms and
conditions of this Agreement, Sub will be merged into Seller (the "Merger") in
accordance with the Ohio General Corporation Law (the "OGCL").
The Merger shall become effective upon the filing of a Certificate of
Merger (the "Certificate of Merger"), along with any other documents required
to be filed to consummate the Merger, with the Secretary of State of the State
of Ohio in accordance with Section 1701.81 of the OGCL (the date of such filing
or, if applicable, the effective date specified in such filing being
hereinafter referred to as the "Effective Date of the Merger" and the time of
such filing being hereinafter referred to as the "Effective Time of the
Merger). The Certificate of Merger and any other documents required to
consummate the Merger shall be filed with the Secretary of State of the State
of Ohio on the Closing Date (as defined in Section 1.3) or as soon thereafter
as practicable.
1.2 Seller Stockholders' Approvals. Seller shall hold a meeting of
its stockholders to consider and vote upon the approval of this Agreement and
the Merger contemplated hereby, all in accordance with the provisions of the
OGCL (the "Seller Stockholders' Meeting"), as soon as practicable after the
date hereof.
1.3 Closing. The closing of the Merger (the "Closing") will take
place on the first business day after satisfaction or waiver of all of the
conditions to the Merger set forth in this Agreement (the date of such closing
is hereinafter referred to as the "Closing Date"), at the offices of Goodwin,
Procter & Hoar, Exchange Place, Boston, Massachusetts 02109, unless a different
date or place is agreed to by the parties hereto.
1.4 Effects of the Merger. At the Effective Time of the Merger, (i)
the separate existence of Sub shall cease and Sub shall be merged with and into
Seller (Seller after the Merger is sometimes referred to herein as the
"Surviving Corporation"); (ii) the Articles of Incorporation of Seller shall be
the Articles of Incorporation of the Surviving Corporation, except that such
Articles of Incorporation shall be amended to provide that (x) the authorized
common stock of the Surviving Corporation shall be 1,000 shares of Common
Stock, with no par value, and (z) the name of the Surviving Corporation shall
be Shoe Corporation of America, Inc., (iii) the Code of Regulations of Seller
shall be the Code of Regulations of the
3
Surviving Corporation, (iv) the directors and officers of the Surviving
Corporation shall remain as the directors and officers of the Surviving
Corporation, respectively, and (v) the Merger shall, from and after the
Effective Time of the Merger, have all the effects provided by applicable law.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS; SURRENDER OF CERTIFICATES
2.1 Effect on Capital Stock. As of the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of the
holder of any shares of capital stock of Seller or Sub:
2.1.1 Capital Stock of Sub. Each issued and outstanding
share of capital stock of Sub shall continue to be issued and shall be
converted into one share of common stock of the Surviving Corporation. Each
stock certificate of Sub evidencing ownership of a number of shares of the
capital stock of Sub shall thereafter evidence ownership of such number of
shares of common stock of the Surviving Corporation.
2.1.2 Cancellation of Treasury and Similar Stock of Seller.
All shares of common stock of Seller, with no par value ("Seller Common
Stock"), that are owned, directly or indirectly, by Seller or by any Subsidiary
(as hereinafter defined) of Seller and any shares of capital stock of Seller
owned by Acquiror, Sub or any other Subsidiary of Acquiror shall be cancelled
and no consideration shall be delivered in exchange therefor. As used in this
Agreement, a "Subsidiary" of an entity shall mean any corporation or other
legal entity of which the specified entity (either acting alone or together
with its other Subsidiaries) owns, directly or indirectly, more than 50% of the
stock or other equity interest, the holders of which are, ordinarily or
generally, in the absence of contingencies or understandings, entitled to vote
for the election of a majority of the board of directors or to otherwise
control the governing body.
2.1.3 Conversion of Capital Stock. Each issued and
outstanding share of Seller Common Stock (other than (x) shares to be cancelled
pursuant to Section 2.1.2, and (y) shares, if any, held by persons who in
accordance with Section 1701.84 of the OGCL have not voted in favor of the
merger and have delivered to Seller within ten days of the date of the Seller
Stockholders' Meeting a written demand for appraisal of their shares
("Dissenting Shares")) shall be converted and exchange, without any action on
the part of the holders thereof, into the right to receive from Acquiror
$2.95759 in cash (the "Cash Consideration"). Each issued and outstanding share
of the preferred stock of Seller, $1.00 par value ("Seller Preferred Stock"),
shall remain outstanding.
2.1.4 Appraisal Rights. Except as otherwise provided in
the OGCL, any Dissenting Shares shall not be converted into the Cash
Consideration but shall be converted
2
4
into the right to receive such consideration as may be determined to be due
with respect to such Dissenting Shares pursuant to the OGCL. Seller shall give
Acquiror prompt written notice of any demand received by Seller from a
stockholder of Seller regarding the appraisal of his shares, and Acquiror shall
have the right to participate in all negotiations and proceedings with respect
to such demand. Seller agrees that, except with the prior written consent of
Acquiror, or as required under the OGCL, it will not voluntarily make any
payment with respect to, or settle or offer to settle, any such demand. Each
holder of Dissenting Shares (a "Dissenting Stockholder") who, pursuant to the
provisions of the OGCL, becomes entitled to payment of the value of shares of
Seller Common Stock shall receive payment therefor (but only after the value
therefor shall have been agreed upon or finally determined pursuant to such
provisions). In the event of a legal obligation, after the Effective Time of
the Merger, to deliver the Cash Consideration to any holder of shares of Seller
Common Stock who shall have failed to make a demand for appraisal or shall have
withdrawn or otherwise terminated his demand for appraisal, Acquiror shall,
upon surrender by such Dissenting Stockholder of his certificate or
certificates representing shares of Seller Common Stock, pay the Cash
Consideration to which such Dissenting Stockholder is then entitled under this
Section 2.1 and the Certificate of Merger.
2.2 Surrender of Certificates and Payment of Cash-out Consideration.
2.2.1 Exchange Agent. Acquiror shall act as exchange agent
(the "Exchange Agent") in the Merger or shall appoint its transfer agent to act
as Exchange Agent.
2.2.2 Acquiror to Arrange for Payment of Cash
Consideration. Promptly after the Effective Time of the Merger (but in no
event later than fifteen business days thereafter), Acquiror shall make
available to the Exchange Agent for payment in accordance with this Article II,
through such reasonable procedures as Acquiror may adopt, the total Cash
Consideration payable pursuant to Section 2.1.3, such payment to be made in
each case in exchange for certificates formerly representing outstanding shares
of Seller Common Stock.
2.2.3 Exchange Procedures. Within ten days after the
Effective Time of the Merger, the Exchange Agent shall mail to each holder of
record of a certificate or certificates which immediately prior to the
Effective Time of the Merger represented outstanding shares of Seller Common
Stock (the "Certificates") whose shares are being converted into the Cash
Consideration pursuant to Section 2.1 hereof and the Certificate of Merger, (i)
a letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon delivery
of the Certificates to the Exchange Agent and shall be in such form and have
such other provisions as Acquiror may reasonable specify) and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for payment
of the Cash Consideration. Upon surrender of a Certificate for cancellation to
the Exchange Agent or to such other agent or agents as may be appointed by
Acquiror, together with such letter of transmittal, duly executed, the holder
of such Certificate shall be entitled to payment of the Cash Consideration,
pursuant to Section 2.1.3 hereof, in respect of the shares of Seller Common
Stock formerly represented by such
3
5
Certificate. The Certificate so surrendered shall forthwith be cancelled. In
the event of a transfer of ownership of Seller Common Stock which is not
registered on the transfer records of Seller, the appropriate amount of Cash
Consideration may be delivered to a transferee if the Certificate representing
such Seller Common Stock is presented to the Exchange Agent and accompanied by
all documents required to evidence and effect such transfer and to evidence
that any applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 2.2, each Certificate shall be deemed at any time
after the Effective Time of the Merger to represent only the right to receive
upon such surrender the Cash Consideration as provided by this Article II and
the provisions of the OGCL, except for Certificates for Dissenting Shares,
which shall have the rights set forth in Section 1701.84 of the OGCL.
2.2.4 No Further Ownership Rights in Capital Stock of
Seller. Cash Consideration delivered upon the surrender of Certificates in
accordance with the terms hereof shall be deemed to have been delivered in full
satisfaction of all rights pertaining to the shares of Seller Common Stock
formerly represented by such Certificates. There shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Seller Common Stock which were outstanding
immediately prior to the Effective Time of the Merger. If, after the Effective
Time of the Merger, Certificates are presented to the Surviving Corporation for
any reason (other than in connection with presentation by a dissenting
stockholder for purposes of placing a dissenter's legend thereon), they shall
be cancelled and exchanged as provided in this Article II.
2.2.5 No Interest. No interest shall be due or payable
with respect to any payment of Cash Consideration.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Acquiror and Sub that:
3.1 Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own, operate and lease its properties and to carry on its business
as now conducted. Seller is duly qualified or licensed to do business as a
foreign corporation and is in good standing in all other jurisdictions that
require such qualification or licensing except where the failure to so qualify
would not, individually or in the aggregate, have a material adverse effect on
the present or future operations, business, properties, assets, liabilities,
results of operations or financial condition of Seller, taken as a whole (a
"Seller Material Adverse Effect"). Seller has made available or provided to
Acquiror complete and correct copies of the charter and bylaws of Seller, each
as amended to the date hereof.
4
6
3.2 Power, Authorization and Validity.
3.2.1 Seller has the corporate right, power, legal capacity
and authority to enter into and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement has been duly and
validly approved and authorized by the Board of Directors of Seller, and no
other action on the part of Seller or its stockholders is required in
connection therewith, except as set forth in Section 3.2.2 below.
3.2.2 No filing, authorization, consent or approval is
necessary to enable Seller to enter into, or to perform its obligations under,
this Agreement or to carry out or make effective the Merger, except for (a) the
filing of the Certificate of Merger and any other required documents with the
Secretary of State of the State of Ohio and the filing of appropriate documents
with the relevant authorities of other states in which Seller is qualified to
do business, if any, (b) such filings as may be required to comply with federal
and state Blue Sky laws, and (c) the approval of this Agreement by the
stockholders of Seller.
3.2.3 This Agreement is the valid and binding obligations
of Seller enforceable in accordance with its terms. The Agreement and the
transactions contemplated herein will, when such transactions are consummated
as described herein, result in a valid merger of Sub into Seller with all the
effects of a merger described in OGCL section 1701.82.
3.3 Capitalization. The authorized capital stock of Seller consists
of (i) 1,500,000 shares of Common Stock, without par value, of which 917,125
shares are issued and outstanding, and (ii) 40,000 shares of Class A Preferred
Stock, $1.00 par value per share ("Seller Preferred Stock"), of which all
shares are issued and outstanding. All issued and outstanding shares of Seller
Common Stock and Seller Preferred Stock have been duly authorized and validly
issued, are fully paid and non-assessable and are not subject to any right of
rescission. There are no options, warrants, calls, commitments, conversion
privileges or preemptive or other rights or agreements outstanding to issue,
sell, purchase or otherwise acquire any of Seller's authorized but unissued
capital stock or treasury stock or any other securities convertible into or
evidencing the right to subscribe for any such shares, and there is no
liability for dividends accrued but unpaid on the capital stock of Seller or
any of its Subsidiaries. There are no voting agreements, rights of first
refusal or other restrictions (other than normal restrictions on transfer under
applicable federal and state securities laws) applicable to Seller's
outstanding securities.
3.4 Agreement Will Not Cause Breach. Neither the execution and
delivery of, nor the consummation of the transactions contemplated by, this
Agreement will result in any of the following: (a) a default, breach or
violation of the charter, bylaws or other governing instruments of Seller, or
(b) a violation or breach of any statute, ordinance, rule or regulation
applicable to Seller, or any writ, injunction or decree of any court or
governmental instrumentality to which Seller is a party or by which it or any
of its properties are bound or subject.
5
7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND SUB
Acquiror and Sub, jointly and severally, represent and warrant that:
4.1 Organization and Good Standing. Each of Acquiror and Sub and
each of Acquiror's Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as now conducted.
Each of Acquiror and Sub is duly qualified or licensed to do business as a
foreign corporation and is in good standing in all other jurisdictions that
require such qualification or licensing except where the failure to so qualify
would not, individually or in the aggregate, have a material adverse effect on
the present or future operations, business, properties, assets, liabilities,
results of operations or financial condition of Acquiror and its Subsidiaries,
taken as a whole (an "Acquiror Material Adverse Effect"). Acquiror has made
available or provided to Seller complete and correct copies of the charters and
bylaws of Acquiror and Sub, each as amended to the date hereof.
4.2 Power, Authorization and Validity.
4.2.1 Each of Acquiror and Sub has the corporate right,
power, legal capacity and authority to enter into and perform its obligations
under this Agreement. The execution, delivery and performance of this
Agreement has been duly and validly approved and authorized by the Board of
Directors of Acquiror and Sub and not other action on the part of Acquiror, Sub
or their stockholders is required in connection therewith.
4.2.2 No filing, authorization, consent or approval,
governmental or otherwise, is necessary to enable Acquiror or Sub to enter
into, and to perform its obligations under, this Agreement, except for (a) the
filing of the Certificate of Merger and any other required documents with the
Secretary of State of the State of Ohio and the filing of appropriate documents
with the relevant authorities of other states in which Acquiror or Sub is
qualified to do business, if any, and (b) such filings as may be required to
comply with federal and state Blue Sky laws.
4.2.3 This Agreement is the valid and binding obligations
of Acquiror and Sub, enforceable in accordance with its respective terms.
6
8
ARTICLE V
MUTUAL CONDITIONS PRECEDENT
The respective obligations of each party to consummate the transactions
contemplated herein are subject to the satisfaction or waiver, where
permissible, prior to or as of the Effective Time of the Merger, of the
following conditions precedent:
5.1 Seller Stockholder Approval. This Agreement shall have been
approved and adopted by the requisite affirmative vote of the stockholders of
Seller in accordance with its Certificate of Incorporation and Code of
Regulations and in accordance with applicable law.
5.2 Approvals. All authorizations, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting periods imposed
by, any court, administrative agency, commission, regulatory authority or other
governmental authority or instrumentality, domestic or foreign, necessary for
the consummation of the transactions contemplated by this Agreement, shall have
been filed, occurred or been obtained.
5.3 Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation
of any transaction contemplated by this Agreement shall have been issued by any
court, administrative agency, commission, regulatory authority or other
governmental authority or instrumentality, domestic or foreign, and remain in
effect, and not litigation seeking the issuance of such an order or injunction,
or seeking the imposition against Sub, Seller or Acquiror or any of their
respective directors or officers of damages if the Merger is consummated, shall
be pending or threatened. In the event any such order or injunction shall have
been issued, each party agrees to use reasonable efforts to have any such
injunction removed or terminated.
5.4 Statutes. No action shall have been taken, and no statute,
rule, regulation or order shall have been enacted, promulgated, issued or
deemed applicable to the Merger, by any court, administrative agency,
commission, regulatory authority or other governmental authority or
instrumentality, domestic or foreign, which would make the consummation of the
Merger or the transactions contemplated hereby illegal or impermissible.
5.5 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been terminated pursuant to
Article VIII hereof.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIROR AND SUB
The obligations of Acquiror and Sub to consummate the transactions
contemplated herein are subject to the satisfaction or waiver, where
permissible, prior to or upon the Effective Time of the Merger, of the
following conditions precedent:
7
9
6.1 Representations and Warranties. The representations and
warranties of Seller set forth in this Agreement shall be true and correct in
all material respects (except for such representations and warranties which are
qualified by their terms by a reference to materiality, which representations
and warranties as so qualified shall be true in all respects) (i) as of the
date of this Agreement, (ii) as of the date of the Seller Stockholders' Meeting
and (iii) as of the Closing Date, as though made on and as of each such date,
and Acquiror shall have received a certificate signed by the President of
Seller to such effect on the Closing Date.
6.2 No Material Adverse Change. From and after the date hereof, no
event or circumstance shall have occurred and no fact or condition shall exist
which has caused or constitutes a Seller Material Adverse Effect, and Acquiror
shall have received a certificate signed by the President of Seller to such
effect on the Closing Date.
6.3 Opinion of Seller's Counsel. Acquiror shall have been furnished
with an opinion, in form and substance reasonably satisfactory to Acquiror, of
Schwartz, Kelm, Warren & Rubenstein, counsel for the Seller, substantially to
the effect that upon the filing of the Certificate of Merger with the Secretary
of State of the State of Ohio, at the Effective Time of the Merger Sub will be
merged into Seller in accordance with, and in the manner described in, Article
II hereof and such merger shall be duly authorized, valid and have all of the
effects set forth in Section 1701.82 of the OGCL.
ARTICLE VII
CONDITION PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated
herein are subject to the satisfaction or waiver, where permissible, prior to
or upon the Effective Time of the Merger, of the following condition precedent:
7.1 Representations and Warranties. The representations and
warranties of Acquiror and Sub set forth in this Agreement shall be true and
correct in all material respects (except for such representations and
warranties which are qualified by their terms by a reference to materiality,
which representations and warranties as so qualified shall be true in all
respects) (i) as of the date of this Agreement, (ii) as of the date of the
Seller Stockholders' Meeting and (iii) as of the Closing Date, as though made
on and as of each such date, and Seller shall have received a certificate
signed by the chief financial officer or Treasurer of Acquiror to such effect
on the Closing Date.
8
10
ARTICLE VIII
TERMINATION OF AGREEMENT
8.1 Termination. At any time prior to the Closing Date, this
Agreement may be terminated (a) by mutual written consent of each of the
parties hereto, (b) by Acquiror if the conditions stated in Article VI hereof
have not been satisfied at or prior to the Closing Date or if it has become
reasonably, objectively certain that any conditions required to be satisfied
thereunder, other than a condition that is reasonably within Acquiror's or
Sub's control, will not be satisfied on or prior to the Closing Date, (c) by
Seller if the conditions stated in Article VII hereof have not been satisfied
at or prior to the Closing Date or if it has become reasonably, objectively
certain that any conditions required to be satisfied thereunder, other than a
condition that is reasonably within Seller's control, will not be satisfied on
or prior to the Closing Date, (d) by any party if the conditions stated in
Article V hereof have not been satisfied at or prior to the Closing Date or if
it has become reasonably, objectively certain that any conditions required to
be satisfied thereunder, other than a condition that is reasonably within the
control of the party seeking a termination, will not be satisfied on or prior
to the Closing Date or (e) by any party without the consent of the other
parties if the Effective Date of the Merger has not occurred on or prior to
December 31, 1993.
8.2 Extension of Time; Waivers. At any time prior to the Closing
Date:
8.2.1 Acquiror and Sub may (i) extend the time for the
performance of any of the obligations or other acts of Seller, and (ii) waive
compliance with any of the agreements or conditions contained herein to be
performed by Seller. Any agreement pursuant to this Section 8.2.1 shall be
valid only if set forth in an instrument in writing signed by each of the
parties hereto.
8.2.2 Seller may (i) extend time for the performance of any
of the obligations or other acts of Acquiror and/or Sub, and (ii) waive
compliance with any of the agreements or conditions contained herein to be
performed by Acquiror and/or Sub. Any agreement pursuant to this Section 8.2.2
shall be valid only if set forth in an instrument in writing signed by each of
the parties hereto.
ARTICLE IX
MISCELLANEOUS
9.1 Amendment. This Agreement may be amended with the approval of
the Boards of Directors of Acquiror, Sub and Seller at any time before or after
approval thereof by the stockholders of Seller or the stockholders of Sub but,
after any such approval, no amendment shall be made if under Section 1701.84 of
the OGCL such amendment must be approved by the stockholders of any party
hereto unless the requisite approval of such party's stockholders shall have
been obtained. This Agreement may not be amended except by an instrument in
writing signed on behalf of each parties hereto.
9.2 Costs and Expenses. Costs and expenses incurred in connection
with this Agreement will be paid by the party incurring such costs and
expenses.
9
11
9.3 Non-Survival of Warranties. Except for the obligation of
Acquiror to pay the Cash Consideration as provided in Article II and to
otherwise comply with its obligations under such Article, all representations,
warranties, agreements, covenants and obligations herein or in any schedule,
exhibit, or certificate or financial statement delivered by any party to any
other party incident to the transactions contemplated hereby shall not survive
the Closing.
9.4 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, (b) may be executed in several counterparts, one of
which will be deemed an original and all of which shall constitute one and the
same instrument and (c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Ohio without giving
effect to the conflict of law provisions thereof.
9.5 Assignability. This Agreement shall be binding upon, and shall
be enforceable by and inure to the benefit of, the parties named herein and
their respective successors and assigns; provided, however, that this Agreement
may not be assigned by any party without the prior written consent of the other
parties, and any attempted assignment without such consent shall be void and of
no effect.
9.6 Notices. Any notice of demand which must or may be given under
this Agreement shall, except as otherwise provided, be in writing and shall be
deemed to have been given (i) when physically received by personal delivery
(which shall include the confirmed receipt of a telecopied facsimile
transmission), or (ii) three (3) business days after being deposited in the
United States certified or registered mail, return receipt requested, postage
prepaid, or (iii) one (1) business day after being deposited with a nationally
known commercial courier service providing next day delivery service (such as
Federal Express); addressed and delivered or telecopied to Acquiror, Sub or
Seller, as the case may be, as follows:
To Acquiror: With a copy to:
J. Baker, Inc. Goodwin, Procter & Hoar
555 Turnpike Street Exchange Place
Canton, MA 02021 Boston, MA 02109
Attn: Chief Financial Officer Attn: Thomas P. Storer, Esq.
To Sub: With a copy to:
JBAK Acquisition Corp. Goodwin, Procter & Hoar
555 Turnpike Street Exchange Place
Canton, MA 02021 Boston, MA 02109
Attn: President Attn: Thomas P. Storer, Esq.
10
12
To Seller: With a copy to:
Tishkoff Enterprises, Inc. Schwartz, Kelm,Warren & Rubenstein
2035 Innis Road 41 South High Street
Columbus, Ohio 43224 Suite 2350
Attn: President Columbus, OH 43215
Attn: Kenneth J. Warren, Esq.
or to such other address of which any party may by written notice given in
accordance with this Section 9.6 notify the other parties.
9.7 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
9.8 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary rights or any other rights of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity.
9.9 Mutual Drafting. This Agreement is the joint project of the
Acquiror and Seller, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of Acquiror and Seller and shall not be
construed for or against either party.
9.10 Severability. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
9.11 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any federal or state court
located in The Commonwealth of Massachusetts (as to which the parties agree to
submit to jurisdiction for the purposes of such action), this being in addition
to any other remedy to which they are entitled at law or in equity.
11
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
J. BAKER, INC.
By: /s/ Philip G. Rosenberg
------------------------------
Name: Philip G. Rosenberg
Title: First Senior Vice President
ATTEST:
/s/ Alan I. Weinstein
- - ------------------------------
Name: Alan I. Weinstein
Title: Secretary
JBAK ACQUISITION CORP.
By: /s/ Alan I. Weinstein
------------------------------
Name: Alan I. Weinstein
Title: President
ATTEST:
/s/ Mark T. Beaudouin
- - ------------------------------
Name: Mark T. Beaudouin
Title: Secretary
TISHKOFF ENTERPRISES, INC.
By: /s/ Alan I. Weinstein
------------------------------
Name: Alan I. Weinstein
Title: Senior Executive Vice
President
ATTEST:
/s/ Philip G. Rosenberg
- - ------------------------------
Name: Philip G. Rosenberg
Title: Assistant Secretary
12