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Exhibit 10.1
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STOCK PURCHASE AGREEMENT
AMONG
POLYSINDO HONG KONG LIMITED
AND
SELLERS
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DATED: APRIL 8, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS............................................1
1.1 Definitions............................................1
ARTICLE 2 PURCHASE AND SALE OF THE SHARES........................2
2.1 Purchase and Sale of Shares............................2
2.2 Closing................................................2
2.3 Additional Purchase Price..............................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER.............................4
3.1 Power and Authority....................................4
3.2 Authorization; No Contravention........................4
3.3 Title to Purchase Shares...............................4
3.4 Governmental Authorization; Third Party Consents.......4
3.5 Binding Effect.........................................5
3.6 Litigation.............................................5
3.7 Compliance with Laws...................................5
3.8 No Default or Breach...................................5
3.9 Private Offering.......................................5
3.10 Broker's, Finder's or Similar Fees.....................5
3.11 Knowledge of Selling Stockholders......................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER..............................................6
4.1 Existence and Power....................................6
4.2 Authorization; No Contravention........................6
4.3 Governmental Authorization; Third Party Consents.......6
4.4 Binding Effect.........................................6
4.5 Litigation.............................................6
4.6 Experience; Accredited Investor........................7
4.7 Broker's, Finder's or Similar Fees.....................7
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ARTICLE 5 CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE..............................8
5.1 Representations and Warranties.........................8
5.2 Compliance with this Agreement.........................8
5.3 Approval of Counsel to the Purchaser...................8
5.4 Waiver of Rights of First Offer........................8
5.5 Purchased Shares.......................................9
5.6 Company Agreement......................................9
ARTICLE 6 CONDITIONS TO THE OBLIGATION
OF THE SELLING STOCKHOLDER TO CLOSE....................9
6.1 Representations and Warranties.........................9
6.2 Compliance with this Agreement.........................9
6.3 Approval of Counsel to such Selling Stockholder........9
6.4 Waiver of Rights of First Offer........................9
6.5 Payment of Purchase Price..............................9
ARTICLE 7 MISCELLANEOUS.........................................10
7.1 Survival of Representations and Warranties............10
7.2 Notices...............................................10
7.3 Inquiries.............................................10
7.4 Successors and Assigns; Third Party Beneficiaries.....10
7.5 Amendment and Waiver..................................11
7.6 Counterparts..........................................11
7.7 Headings..............................................11
7.8 Governing Law.........................................11
7.9 Severability..........................................11
7.10 Rules of Construction.................................11
7.11 Entire Agreement......................................11
7.12 Publicity.............................................12
7.13 Further Assurances....................................12
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STOCK PURCHASE AGREEMENT
AGREEMENT, dated April 8, 1997 (this "Agreement"), among Polysindo Hong
Kong Limited (the "Purchaser"), and the persons executing this Agreement (the
"Selling Stockholders");
WHEREAS, on the date hereof, such Selling Stockholders are the holders of
shares, par value $.01 per share, of Common Stock (the "Common Stock") of
Dyersburg Corporation (the "Company") in the amounts listed on Annex A to this
Agreement; and
WHEREAS, upon the terms and conditions set forth in this Agreement, such
Selling Stockholders agree to sell to Purchaser, and Purchaser agrees to
purchase, a number of shares of such Common Stock in the aggregate amount listed
on Annex A to this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms have the meanings indicated:
"Adjustment Rate" means 6.5% per annum simple interest.
"Agreement" means this Agreement as the same may be amended, supplemented
or modified in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of Tennessee or the State of New York are
authorized or required by law or executive order to close.
"Closing" has the meaning set forth in Section 2.2.
"Closing Date" means the date specified in Section 2.2.
"Common Stock" means Common Stock, par value $.01 per share, of the
Company, or any other capital stock of the Company into which such stock is
reclassified or reconstituted.
"Company" has the meaning assigned to such term in the recitals to this
Agreement.
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"Contractual Obligations" means as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Governmental Authority" means the government of any nation, state, city,
locality or other political subdivisions thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"HSR Act" means Title II of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever.
"Purchase Price" means with respect to a share of Common Stock $7.65, with
respect to the payment to any Selling Stockholder the amount set out in Annex A,
and with respect to all Shares an aggregate amount of $22,950,000, in each case
as adjusted pursuant to the provisions of Section 2.1.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Requirements of Law" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable or binding upon such Person or any of its property or to
which such Person or any of its property is subject or pertaining to any or all
of the transactions contemplated or referred to herein.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder.
"Shares" means with respect to any Selling Stockholder the number of shares
of Common Stock listed on Annex A and with respect to all Selling Stockholders
three (3) million shares of Common Stock.
ARTICLE 2
PURCHASE AND SALE OF THE SHARES
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2.1 Purchase and Sale of Shares. Subject to the terms and conditions herein
set forth, each such Selling Stockholder agrees to sell to the Purchaser, and
the Purchaser agrees that it will purchase from each such Selling Stockholder,
on the Closing Date, the number of shares of Common Stock indicated by such
Selling Stockholder's name on Annex A, for a price of $7.65 per Share. The
Purchase Price payable to each Selling Stockholder is listed on Annex A. In the
event the transaction closes after April 30, 1997, the price per share shall be
increased by an amount computed like interest, accruing from and after May 1,
1997 to the actual closing date and using the Adjustment Rate. For example, if
the closing occurs on May 30, 1997, the price per share will be $7.69, computed
by multiplying the price per share by the Adjustment Rate, multiplying that
product by a fraction with 30 as the numerator and 365 as the denominator, and
adding the original price per share to the result of the previous computation.
2.2 Closing. The purchase and sale of the Shares (the "Closing") shall take
place at the offices of Alston & Bird, Atlanta, Georgia, at 10 a.m., local time,
within three (3) business days after the fulfillment of all conditions of
closing, but no later than June 1, 1997, or at such other place, time and date
as each such Selling Stockholder and the Purchaser may agree in writing (the
"Closing Date"). On the Closing Date, each such Selling Stockholder shall
deliver to the Purchaser stock certificates, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, representing the Shares
being purchased by the Purchaser from such Selling Stockholder, against delivery
of the Purchase Price for such Shares by wire transfer of immediately available
funds representing payment in full by the Purchaser for the Shares. Each such
Selling Stockholder shall give instructions for the wire transfer.
2.3 Additional Purchase Price. Purchaser shall promptly pay to each Selling
Shareholder an additional purchase price under the following facts and
conditions:
(a) Purchaser or an affiliate thereof (i) initiates a public tender offer
subject to the provisions of Sections 14D and 14E of the Securities
Exchange Act of 1934, as amended and the rules and regulations promulgated
thereunder ("Tender Offer") for more than 1,000,000 additional shares of
Common Stock or (ii) acquires the Company in a merger or comparable
transaction, in either instance prior to the anniversary date one year from
the closing date of this Agreement, and, with respect to the Tender Offer,
pays to the stockholders of Company for the shares of Common Stock acquired
in the Tender Offer a purchase price per share in excess of the adjusted
price per share of Common Stock paid hereunder or, with respect to such
acquisition, distributes consideration with respect to each share of Common
Stock that is in excess of the adjusted price per share of Common Stock
paid hereunder.
(b) In the event the outstanding shares of Common Stock are increased or
decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of recapitalization,
reclassification, stock split up, combination of shares, stock dividend or
transaction having similar effect, (i) the total number of shares of Common
Stock referred to in paragraph (a), (ii) the price per share of Common
Stock
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paid hereunder and (iii) the number of shares of Common Stock purchased
hereunder shall be proportionately, reasonably and appropriately adjusted
by the Purchaser for the purpose of this Section 2.3. As a result of the
adjustments, the adjusted number of shares times the adjusted price per
share must equal the actual aggregate purchase price paid hereunder for the
Shares of the Common Stock.
(c) In the event the Company is engaged in any merger, sale of stock,
consolidation, or liquidation with a Person other than Purchaser, whereby
its Common Stock is after any such event no longer publicly traded, this
Section 2.3 shall lapse and be of no further force and effect.
(d) The additional purchase price per share of Common Stock will be equal
to (i) the Tender Offer purchase price per share or the acquisition
consideration per share, as the case may be, less (ii) the sum of the (A)
price per share of Common Stock paid hereunder, as adjusted pursuant to
paragraph (b), plus (B) interest thereon at the Adjustment Rate for the
period between the closing of this Agreement and the closing of the Tender
Offer. The additional purchase price for each Selling Stockholder shall be
the additional purchase price per share times the adjusted number of shares
of Common Stock sold by each such Selling Stockholder. The aggregate
additional purchase price shall be the additional purchase price per share
times the adjusted number of shares of Common Stock of all Selling
Stockholders and such aggregate additional purchase price shall be
allocated among the Selling Stockholders as provided above.
(e) Such additional purchase price for each Selling Stockholder will be
paid to each Selling Stockholder as promptly as possible after the closing
of the tender offer and will bear interest from the closing of the tender
offer until paid at the Adjustment Rate.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER
Each of such Selling Stockholders hereby represents and warrants to the
Purchaser as follows:
3.1 Power and Authority. Such Selling Stockholder has the legal capacity to
execute, deliver and perform his obligations under this Agreement.
3.2 Authorization; No Contravention. The execution, delivery and
performance by such Selling Stockholder of this Agreement and the transactions
contemplated hereby, including, without limitation, the sale of the Shares, (a)
do not violate, conflict with or result in any breach or contravention of or the
creation of any Lien under, any Contractual Obligation of such Selling
Stockholder, or any Requirement of Law applicable to such Selling Stockholder
and (b) do not
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violate any judgment, injunction, writ, award, decree or order of any nature
(collectively, "Orders") of any Governmental Authority against, or binding upon,
such Selling Stockholder. Such Selling Stockholder has not previously entered
into any agreement that is currently in effect or to which such Selling
Stockholder is currently bound, granting any rights to any Person that are
inconsistent with the rights to be granted by such Selling Stockholder in this
Agreement.
3.3 Title to Purchase Shares. Such Selling Stockholder owns beneficially
and of record the Shares and has good, valid and marketable title to the Shares,
free and clear of all Liens. Such Selling Stockholder has the unrestricted power
and authority to transfer the Shares to the Purchaser. Upon delivery by such
Selling Stockholder to the Purchaser of the stock certificates representing the
Shares and payment therefor, the Purchaser shall acquire good, valid and
marketable title to the Shares, free and clear of all Liens.
3.4 Governmental Authorization; Third Party Consents. No approval, consent,
compliance, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance (including, without limitation, the sale and delivery of the
Shares), by, or enforcement against, such Selling Stockholder of this Agreement
or the transactions contemplated hereby except in connection with or compliance
with the provisions of the HSR Act.
3.5 Binding Effect. This Agreement has been duly executed and delivered by
such Selling Stockholder and constitutes the legal, valid and binding obligation
of such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
3.6 Litigation. There are no legal actions, suits, proceedings, claims,
complaints, disputes or investigations pending or, to the knowledge of such
Selling Stockholder, threatened, at law, in equity, in arbitration or before any
Governmental Authority against such Selling Stockholder that would, if adversely
determined, have a material adverse effect on the validity or enforceability of
this Agreement or the ability of such Selling Stockholder to perform his
obligations under this Agreement. No Order has been issued by any court or other
Governmental Authority against such Selling Stockholder purporting to enjoin or
restrain the execution, delivery or performance of this Agreement.
3.7 Compliance with Laws. Such Selling Stockholder is in compliance with
all Requirements of Law in all respects, except to the extent that the failure
to comply with such Requirements of Law would not have a material adverse effect
on the ability of such Selling Stockholder to perform his obligations under this
Agreement.
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3.8 No Default or Breach. Such Selling Stockholder has not received notice
of and is not in default under or with respect to any Contractual Obligation of
such Selling Stockholder in any respect, which, individually or together with
all such defaults, could have a material adverse effect on the ability of such
Selling Stockholder to perform his obligations under this Agreement.
3.9 Private Offering. No form of general solicitation or general
advertising was used by such Selling Stockholder or his representatives in
connection with the offer or sale of the Shares. No registration of the Shares,
pursuant to the provisions of the Securities Act or any state securities or
"blue sky" laws, will be required by the sale of the Shares.
3.10 Broker's, Finder's or Similar Fees. There are no brokerage
commissions, finder's fees or similar fees or commissions payable by such
Selling Stockholder in connection with the transactions contemplated hereby
based on any agreement, arrangement or understanding with such Selling
Stockholder or any action taken by such Selling Stockholder.
3.11 Knowledge of Selling Stockholders. Such Selling Stockholder has no
knowledge of any material information about the Company that has not been made
public by the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Selling Stockholders as
follows:
4.1 Existence and Power. Such Purchaser (a) is a corporation duly formed,
validly existing and in good standing under the laws of its domiciliary
jurisdiction; (b) has all requisite power and authority to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently, or is currently proposed to be, engaged; and
(c) has the power and authority to execute, deliver and perform its obligations
under this Agreement.
4.2 Authorization; No Contravention. The execution, delivery and
performance by such Purchaser of this Agreement and the transactions
contemplated hereby, including, without limitation, the purchase of the Shares,
(a) have been duly authorized by all necessary official action of such
Purchaser; (b) do not contravene the terms of the governing instruments of such
Purchaser, or any amendment thereof; (c) do not violate, conflict with or result
in any breach or contravention of or the creation of any Lien under, any
Contractual Obligation of such Purchaser, or any Requirement of Law applicable
to such Purchaser; and (d) do not violate any Orders of any Governmental
Authority against, or binding upon, such Purchaser.
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4.3 Governmental Authorization; Third Party Consents. No approval, consent,
compliance, exemption, authorization or other action by, or notice of, or filing
with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance (including, without limitation, the purchase of the Shares) by, or
enforcement against, such Purchaser of this Agreement or the transactions
contemplated hereby, except in connection with or compliance with the HSR Act.
4.4 Binding Effect. This Agreement has been duly executed and delivered by
such Purchaser, and constitutes the legal, valid and binding obligations of such
Purchaser enforceable against such Purchaser in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 Litigation. There are no legal actions, suits, proceedings, claims,
complaints, disputes or investigations pending or, to the knowledge of such
Purchaser, threatened, at law, in equity, in arbitration or before any
Governmental Authority against such Purchaser that would, if adversely
determined, have a material adverse effect on the ability of such Purchaser to
perform its obligations under this Agreement. No Order has been issued by any
court or other Governmental Authority against such Purchaser purporting to
enjoin or restrain the execution, delivery or performance of this Agreement.
4.6 Purchaser Representations. The Shares to be acquired by such Purchaser
pursuant to this Agreement are being or will be acquired for its own account and
with no intention of distributing or reselling such purchased Shares or any part
thereof in any transaction that would be in violation of the securities laws of
the United States of America, or any state, without prejudice, however, to the
rights of such Purchaser at all times to sell or otherwise dispose of all or any
part of the Shares under an effective registration statement under the
Securities Act, or under an exemption from such registration available under the
Securities Act. If such Purchaser should in the future decide to dispose of any
of the Shares, such Purchaser understands and agrees that it may do so only in
compliance with the Securities Act and applicable state securities laws, as then
in effect. The Purchaser agrees to the imprinting, so long as required by law,
of a legend on certificates representing all of the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR
SUCH LAWS.
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4.7 Broker's, Finder's or Similar Fees. There are no brokerage commissions,
finder's fees or similar fees or commissions payable by such Purchaser in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with such Purchaser or any action taken by any such
Person.
ARTICLE 5
CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE
The obligation of the Purchaser to purchase the Shares, to pay the purchase
price therefor at the Closing and to perform any obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, the Purchaser of the
following conditions by all Stockholders on or before the Closing Date:
5.1 Representations and Warranties. The representations and warranties of
such Selling Stockholder contained in Article 3 hereof shall be true and correct
in all material respects at and on the Closing Date.
5.2 Compliance with this Agreement. Each Selling Stockholder shall have
performed and complied in all material respects with all of his agreements and
conditions set forth or contemplated herein that are required to be performed or
complied with by such Selling Stockholder on or before the Closing Date.
5.3 Approval of Counsel to the Purchaser. All actions and proceedings
hereunder and all documents required to be delivered by such Selling Stockholder
hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been acceptable
to counsel to the Purchaser, in its reasonable judgment as to their form and
substance.
5.4 Expiration of HSR Waiting Period. The applicable waiting period under
the HSR Act shall have expired or been terminated.
5.5 Purchased Shares. Each Selling Stockholder shall have delivered to the
Purchaser one or more certificates in definitive form representing the aggregate
number of Shares purchased by such Purchaser from such Selling Stockholder, duly
executed for transfer or accompanied by duly executed stock powers, with
guaranteed signatures so that the transfer will be accepted by the transfer
agent.
5.6 Company Agreement. Purchaser shall have entered into an agreement with
the Company, pursuant to which the Company represents that neither the Tennessee
Control Share
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Statute nor the Tennessee Business Combination Statute is applicable to
Purchaser, and providing for the election of certain directors and certain other
matters.
5.7 Material Adverse Change. There shall have been no material adverse
change in the business, operations or financial condition of the Company since
January 4, 1997.
5.8 Other Agreements. Purchaser shall acquire at Closing aggregate Shares
hereunder equal to no less than three (3) million shares of the Company's Common
Stock
ARTICLE 6
CONDITIONS TO THE OBLIGATION
OF THE SELLING STOCKHOLDER TO CLOSE
The obligation of each such Selling Stockholder to sell the Shares and the
obligation of such Selling Stockholder to perform his other obligations
hereunder, shall be subject to the satisfaction as determined by, or waiver by,
such Selling Stockholder of the following conditions on or before the Closing
Date:
6.1 Representations and Warranties. The representations and warranties of
the Purchaser contained in Article 4 hereof shall be true and correct in all
material respects at and on the Closing Date.
6.2 Compliance with this Agreement. The Purchaser shall have performed and
complied in all material respects with all of its agreements and conditions set
forth or contemplated herein that are required to be performed or complied with
by such Purchaser on or before the Closing Date.
6.3 Approval of Counsel to such Selling Stockholder. All actions and
proceedings hereunder and all documents required to be delivered by the
Purchaser hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been acceptable
to counsel to such Selling Stockholder, in their reasonable judgment as to their
form and substance.
6.4 Expiration of HSR Waiting Period. The applicable waiting period under
the HSR Act shall have expired or been terminated.
6.5 Payment of Purchase Price. Each such Selling Stockholder shall have
received its portion of the Purchase Price for its portion of the Shares.
ARTICLE 7
MISCELLANEOUS
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7.1 Survival of Representations and Warranties. All of the representations
and warranties made herein shall survive until the Closing Date.
7.2 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(a) if to Selling Stockholders at the addresses listed on Annex A.:
(b) if to the Purchaser:
Polysindo Hong Kong Limited
c/o P.T. Texmaco
Sentra Mulia Suite 1008, 10th Floor
Jl. H.R. Rasuna Said Kav. X-6 No. 8
Jakarta 12940, Indonesia
Attention: P. Manohar
With a copy to:
Alston & Bird
1201 West Peachtree Street
Atlanta Georgia 30309-3424
Attention Harvey Hill, Jr.
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
7.3 Inquiries. Each of the Selling Stockholders and the Purchaser shall
promptly advise the other of all oral, and promptly provide each other with
copies of all written, communications, requests, inquiries or other
notifications received from any Governmental Authorities with respect to the
transactions contemplated hereby.
7.4 Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. Nothing herein shall give or be construed to give to any
Person, other than the parties hereto, any legal or equitable rights hereunder.
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7.5 Amendment and Waiver.
(a) No failure or delay on the part of the Purchaser or any such Selling
Stockholder in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Purchaser or any such Selling Stockholder at law, in equity or otherwise.
(b) Any amendments, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Purchaser or any such Selling Stockholder from the terms
of any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Purchaser and any such Selling Stockholder
and (ii) only in the specific instance and for the specific purpose for which
made or given.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
7.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
7.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
7.9 Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
7.10 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
7.11 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
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referred to herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties with respect to such subject matter.
7.12 Publicity. Each Selling Stockholder agrees not to make any public
announcements regarding this transaction without the prior consent of Purchaser.
7.13 Further Assurances. Each of the parties shall execute such documents
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any Governmental Authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
PURCHASER
POLYSINDO HONG KONG LIMITED
BY: /s/ Sinivasan Marimutu
NAME: Sinivasan Marimutu
TITLE: President/Director
CERTIFICATE OF AUTHENTICITY.
I, P. Manohar, do hereby certify that I am Vice
President (Finance) of Polysindo Eka Perkasa and that I do
hereby further certify that the foregoing signature is by
the person so indicated and that person has the power to
execute this agreement on behalf of POLYSINDO HONG
KONG LIMITED.
/s/ P. Manohar
-----------------------------------
P. MANOHAR
DATED: April 8, 1997
SELLING STOCKHOLDERS SIGNATURES BEGIN ON THE FOLLOWING PAGE
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SELLING STOCKHOLDERS
/s/ Kurt T. Borowsky
-------------------------------------------
KURT T. BOROWSKY
/s/ Hugh J. Byrnes
-------------------------------------------
HUGH J. BYRNES
HUGH J. BYRNES, CUST, HUGH J. BYRNES IV
UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Hugh J. Byrnes
----------------------------------------
HUGH J. BYRNES, CUST, PAIGE JEAN BYRNES
UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Hugh J. Byrnes
----------------------------------------
JACQUELYN J. BYRNES, CUST, HUGH J. BYRNES
IV UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Jacquelyn J. Byrnes
------------------------------------------
JACQUELYN J. BYRNES, CUST, PAIGE JEAN
BYRNES UNDER THE NJ UNIFORM TRANSFERS
TO MINORS ACT
BY; /S/ Jacquelyn J. Byrnes
------------------------------------------
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/s/ Franca M. Ferracane
---------------------------------------------
FRANCA M. FERRACANE
/s/ Keith A. Hightower
----------------------------------------------
KEITH A. HIGHTOWER
/s/ Julius Koppelman
----------------------------------------------
JULIUS KOPPELMAN
/s/ Richard S. Linhart
----------------------------------------------
RICHARD S. LINHART
THE MCJ FOUNDATION
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
/s/ Frank H. Pearl
----------------------------------------------
FRANK H. PEARL
THE PICK FOUNDATION, INC.
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, DIRECTOR
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HARDING SERVICE CORPORATION, ET AL.
PROFIT SHARING PLAN & TRUST
By: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
BY: /s/ Frank E. Richardson
------------------------------------------
FRANK E. RICHARDSON, TRUSTEE
/s/ Frank E. Richardson
----------------------------------------------
FRANK E. RICHARDSON
THE RICHARDSON FOUNDATION
BY: /s/ Frank E. Richardson
-----------------------------------------
FRANK E. RICHARDSON, TRUSTEE
THE SANDY HILL FOUNDATION
BY: /s/ Jeffrey R. Walsh
------------------------------------------
JEFFREY R. WALSH
/s/ Manfred L. Steyn
----------------------------------------------
MANFRED L. STEYN
/s/ Frederic J. Truslow
----------------------------------------------
FREDERIC J. TRUSLOW
/s/ Aura Gracia De Truslow
----------------------------------------------
AURA GARCIA DE TRUSLOW
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THE VAN BEUREN MANAGEMENT TRUST
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
/s/ Henrik N. Vanderlip
----------------------------------------------
HENRIK N. VANDERLIP
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ANNEX A
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PURCHASE PRICE
PAYABLE TO EACH
NUMBER OF SELLING
SELLING STOCKHOLDER ADDRESS SHARES STOCKHOLDER
- -------------------------------------------------------------------------------------------------------------------------
Kurt T. Borowsky Harding Service LLC 125,620 $ 960,993
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes Harding Service LLC 241,196 $1,845,149
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes, Cust, Hugh J. Byrnes IV Harding Service LLC 1,300 $ 9,945
Under the NJ Uniform Transfers to Minors Act 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes, Cust, Paige Jean Byrnes Harding Service LLC 1,300 $ 9,945
Under the NJ Uniform Transfers to Minors Act 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Jacquelyn J. Byrnes, Cust, Hugh J. Byrnes Harding Service LLC 1,300 $ 9,945
IV Under the NJ Uniform Transfers to Minors 330 South Street; P.O. Box 1975
Act Morristown, NJ 07962-1975
Jacquelyn J. Byrnes, Cust, Paige Jean Harding Service LLC 1,300 $ 9,945
Byrnes Under the NJ Uniform Transfers to 330 South Street; P.O. Box 1975
Minors Act Morristown, NJ 07962-1975
Franca M. Ferracane Harding Service LLC 15,000 $ 114,750
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Keith A. Hightower Harding Service LLC 110,038 $ 841,791
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Julius Koppelman Harding Service LLC 73,100 $ 559,215
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Richard S. Linhart OPUS Capital Corp. 74,120 $ 567,018
1776 Broadway, 18th Floor
New York, New York 10019
The MCJ Foundation Van Beuren Management 779,478 $5,963,006
330 South Street, P. O. Box 1975
Morristown, NJ 07962-1975
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22
- -------------------------------------------------------------------------------------------------------------------------
PURCHASE PRICE
PAYABLE TO EACH
SELLING STOCKHOLDER NUMBER OF SELLING
(continued from previous page) ADDRESS SHARES STOCKHOLDER
- -------------------------------------------------------------------------------------------------------------------------
Frank H. Pearl Perseus LLC 12,185 $ 93,215
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
The PICK Foundation, Inc. Harding Service LLC 71,357 $ 545,881
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Harding Service Corporation, et al. Harding Service LLC 37,448 $ 286,477
Profit Sharing Plan & Trust 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Frank E. Richardson F.E. Richardson & Co. 446,945 $3,419,129
245 Park Avenue, 41st Floor
New York, New York 10167
The Richardson Foundation F.E. Richardson & Co. 6,163 $ 47,147
245 Park Avenue, 41st Floor
New York, New York 10167
The Sandy Hill Foundation Harding Service LLC 515,300 $3,942,045
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Manfred L. Steyn Harding Service LLC 157,611 $1,205,724
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Frederic J. Truslow Perseus LLC 5,401 $ 41,318
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
Aura Garcia de Truslow Perseus LLC 16,750 $ 128,138
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
The Van Beuren Management Trust Van Beuren Management 279,670 $2,139,476
330 South Street, P. O. Box 1975
Morristown, NJ 07962-1975
Henrik N. Vanderlip Viking Capital Partners 27,418 $ 209,748
133 River Road
Cos Cob, CT 06807
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