Exhibit 99.1
EOC FEBRUARY 28, 2003
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: | CHAPTER 11
|
HA-LO INDUSTRIES, INC., ET AL., | CASE NO. 02 B 12059
| JOINTLY ADMINISTERED
DEBTORS AND |
DEBTORS-IN-POSSESSION. | HON. CAROL A. DOYLE
|
| RELATED DOCKET NO.:
| IL DKT. NO. 675
ORDER (A) AUTHORIZING THE DEBTORS TO ENTER INTO A PURCHASE
AGREEMENT FOR THE SALE OF SUBSTANTIALLY ALL ASSETS OF HA-LO
INDUSTRIES, INC. AND LEE WAYNE CORPORATION, AND THE STOCK OF THE
EUROPEAN SUBSIDIARIES, AND THE ASSUMPTION AND ASSIGNMENT OF
CERTAIN EXECUTORY CONTRACTS AND LEASES; (B) ESTABLISHING NOTICE,
BIDDING AND SALE PROCEDURES; AND (C) SETTING SALE HEARING
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This matter coming to be heard on the Motion (the "SALE PROCEDURES
MOTION")1 of Debtors and Debtors-in-Possession HA-LO Industries, Inc. ("HA-LO")
and Lee Wayne Corporation ("LEE WAYNE," and collectively with HA-LO referred to
herein as the "DEBTORS" or "SELLERS")2 for entry of an Order (A) Authorizing the
Debtors to Enter Into a Purchase Agreement for the Sale of Substantially All
Assets of HA-LO Industries, Inc. and Lee Wayne Corporation and the Stock of the
European Subsidiaries, and the Assumption and Assignment of Certain Executory
Contracts And Leases; (B) Establishing Notice, Bidding and Sale Procedures; and
(C) Setting Sale Hearing; it appearing that this Court has jurisdiction over
this matter pursuant to 28 U.S.C. ss.ss. 157 and 1334; it appearing that this
proceeding is a core proceeding pursuant to 28 U.S.C. ss. 157(a); the Court
having considered the Sale Procedures Motion, any
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1 Capitalized terms not defined herein shall have the meanings ascribed to
them in the Sale Procedures Motion.
2 Debtor and Debtor-in-Possession Starbelly.com, Inc. ("Starbelly") is not a
party to this Order and does not fall within the definitions of "Debtors"
or "Sellers" as such terms are used herein.
objections filed thereto, the statements of counsel and any testimony or offer
of proof as to testimony that may have been presented at the hearing; it
appearing that the relief requested in the Sale Procedures Motion is in the best
interests of the Debtors' bankruptcy estates, their creditors and other
parties-in-interest; the Court having been fully apprised in the premises, and
after due deliberation and cause appearing therefor;
IT APPEARING TO THE COURT THAT:
A. Notice of the Sale Procedures Motion was adequate and sufficient
under the circumstances of these Chapter 11 cases, and such notice complied with
all applicable requirements of 11 U.S.C. ss.ss. 102 and 363, Rules 2002, 6004,
6006, and 9014 of the Federal Rules of Bankruptcy Procedure, and any other
provisions of Title 11 of the United States Code, the Federal Rules of
Bankruptcy Procedure and the Local Bankruptcy Rules.
B. The Agreement attached hereto as Exhibit A (the "PURCHASE
AGREEMENT") was entered into in good faith by the Sellers and HA-LO Promotions
Acquisition Corp., a Delaware corporation, and HA-LO Holdings BV (collectively,
the "BUYERS"), and is the result of an arms'-length negotiation between the
parties, each represented by sophisticated legal counsel.
C. The Sale Procedures attached hereto as Exhibit B (the "SALE
PROCEDURES") are reasonable and appropriate under the circumstances of these
Chapter 11 cases.
D. The Sale Notice attached hereto as Exhibit C (the "SALE NOTICE")
provides adequate notice concerning the proposed sale of the Assets and the
proposed assumption and assignment of the executory contracts and unexpired
leases identified in Schedule 1.1a of the Purchase Agreement.
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E. The form confidentiality agreement to be executed by potential
bidders is attached hereto as Exhibit D.
NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:
1. The relief requested in the Sale Procedures Motion is granted
and approved.
2. The Debtors are hereby authorized to enter into and execute the
Purchase Agreement and to perform such obligations under the Purchase
Agreement which arise prior to the Sale Hearing (as defined below).
3. The Sale Procedures are, and each of them hereby is, approved in all
respects, including, without limitation, the Breakup Fee of $540,000
payable as set forth in paragraph 11 of the Sale Procedures and the
Expense Reimbursement of up to $520,000 payable as set forth in
paragraph 12 of the Sale Procedures.
4. No other party submitting any other offer to purchase the Assets or a
Qualified Bid, Qualified Overbid, Qualified Aggregate Bid or Qualified
Aggregate Overbid shall be entitled to any expense reimbursement,
breakup, or termination or similar fee or payment in connection with
the sale process contemplated under these Sale Procedures.
5. The proposed sale of the Assets, the proposed assumption and assignment
of the executory contracts and unexpired leases identified in Schedule
1.1a of the Agreement, the Auction (as defined below) and the Sale
Hearing shall be conducted only in accordance with the provisions of
this Order and the Sale Procedures.
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6. With respect to any and all amounts payable to Buyers by the Debtors
pursuant to this Order, the Debtors are authorized and directed to pay
any such amounts that become due or payable to Buyers without further
order of the Court.
7. With respect to any and all amounts payable or becoming payable to
Buyers under this Order, Buyers shall have a super-priority
administrative expense priority claim for such amounts pursuant to 11
U.S.C. ss. 364(c)(1), which claim shall be senior to any and all claims
of any creditors or holders of equity interests in the Debtors other
than pre-petition and post-petition amounts owing to the Debtors'
debtor-in-possession senior secured lenders.
8. The Debtors shall serve a copy of the Sale Notice, or another notice
substantially similar thereto, upon (i) the United States Trustee, (ii)
the Official Committee of Unsecured Creditors, (iii) LaSalle, (iv) the
parties on the master service list maintained by the Debtors in
accordance with the Court's Order Establishing Omnibus Hearing Dates
and Certain Notice, Case Management and Administrative Procedures dated
April 16, 2002 and entered on the Court's docket on April 17, 2002, (v)
the parties to the contracts and leases identified in Schedule 1.1a to
the Agreement, (vi) Buyers and their counsel, (vii) the 81 potential
acquirers that previously expressed an interest to Sellers in possibly
acquiring Sellers' assets and executed a confidentiality agreement,
(viii) the Internal Revenue Service and departments of revenue in all
50 U.S. states, and (ix) the United States Environmental Protection
Agency and the State of Michigan Department of Environmental Quality;
such notices shall be deposited in the United States Mail, with first
class prepaid postage, prior to 11:59 p.m. Central time on March 4,
2003.
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9. The Debtors shall publish a copy of the Sale Notice, or such other
advertisement substantially similar to the Sale Notice, on two
occasions in the national edition of USA Today, on or before March 7,
2003 and on or before March 14, 2003, on one occasion in the
international edition of the Wall Street Journal, on or before March 7,
2003, and on one occasion in the Chicago Tribune, on or before March 7,
2003.
10. The Debtors shall file a copy of the Sale Notice, or such other notice
substantially similar to the Sale Notice, with the Edgar filing service
maintained by the Securities and Exchange Commission on or before March
10, 2003.
11. Compliance with the foregoing notice provisions shall constitute
sufficient notice of the Debtors' contemplated sale of the Assets and
contemplated assumption and assignment of the executory contracts and
unexpired leases identified in Schedule 1.1a of the Purchase Agreement
and of the relief contemplated in the proposed Sale Order, and no
additional notice of such contemplated transactions need be given.
12. If the Debtors receive a Qualified Bid or a Qualified Aggregate Bid (as
such terms are defined in the Sale Procedures) other than Buyers' bid
as set forth in the Purchase Agreement, an auction (the "AUCTION") will
be held in accordance with the Sale Procedures on April 3, 2003 at 9:00
a.m. Central time, at the offices of the Debtors' investment banker,
Lincoln Partners LLC, 200 West Madison Street, Suite 2100, Chicago,
Illinois 60606 or such other location as hereafter designated by the
Debtors.
13. The hearing (the "SALE HEARING") on the Debtors' contemporaneously
filed Motion of Debtors and Debtors-in-Possession HA-LO Industries,
Inc. and Lee Wayne Corporation for the Entry of an Order (the "SALE
ORDER") Granting Them the Authority to (A) Sell
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Substantially All of Their Assets, (B) Assume and Assign Certain
Executory Contracts and Unexpired Leases, (C) Consummate Certain Other
Related Transactions Contemplated Under the Purchase Agreement, and (D)
Waive the Ten-Day Stay Otherwise Applicable to Sales of Estate Property
and Assignments Of Executory Contracts [IL Dkt. No. 677] (the "SALE
MOTION") shall be held on April 3, 2003 at 2:00 p.m. Central time in
the Courtroom of the Honorable Carol A. Doyle, and may be adjourned
from time to time without further notice other than an announcement in
open court at the Sale Hearing.
14. Any objections to the relief requested in the Sale Motion or to the
proposed Sale Order shall be in writing, shall state the basis of such
objection with specificity, and shall be filed with the Court, and
served in accordance with the Sale Notice so as to be received by the
following persons, on or before March 27, 2003 at 4:00 p.m. Central
time:
(i) Counsel for the Debtors: Neal L. Wolf & Todd L. Padnos,
LeBoeuf, Lamb, Greene & MacRae, L.L.P., One Embarcadero Center, San
Francisco, CA 94111-3619 (facsimile: 415-951-1180);
(ii) Corporate Counsel for the Debtors: Barry Shkolnik, Neal
Gerber & Eisenberg, 2 North LaSalle Street, Suite 2300, Chicago,
Illinois 60602 (facsimile 312-269-1747);
(iii) Counsel for the Official Committee of Unsecured Creditors:
Mark A. Berkoff & Steven J. Christenholz, Piper Rudnick, 203 North
LaSalle Street, Suite 1800, Chicago, Illinois 60601 (facsimile
312-236-7516);
(iv) Co-Counsel for the Official Committee of Unsecured Creditors:
Mark Minuti & Donald J. Detweiler, Saul Ewing LLP, 222 Delaware Avenue,
Suite 1200, P.O. Box 1266, Wilmington, Delaware 19899 (facsimile
302-421-5872);
(v) Counsel for LaSalle Bank, N.A.: Richard M. Bendix, Jr. and
Gary Segal, Schwartz Cooper Greenberger & Krauss Chtd., 180 North
LaSalle Street, Suite 2700, Chicago, Illinois 60601 (facsimile
312-346-9437);
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(vi) Counsel for CenterPoint Properties, Inc.: J. Mark Fisher and
Jason Torf, Schiff Hardin & Waite, 6600 Sears Tower, Chicago, Illinois
60606 (facsimile 312-258-5700);
(vii) Counsel for Buyers: Matthew N. Kleiman, Kirkland & Ellis,
200 East Randolph Drive, Suite 6500, Chicago, Illinois 60601 (facsimile
312-861-2200); and
(viii) Counsel for the United States Trustee: Kathryn Gleason,
Office of the United States Trustee, 227 West Monroe Street, Suite
3350, Chicago, Illinois 60606 (facsimile 312-886-5794).
15. The Buyers may appear and be heard at the Sale Hearing.
16. This Order shall be effective immediately upon entry, and no automatic
stay of execution applies with respect to this Order.
[The balance of this page has been left blank intentionally and the signature
page follows immediately hereafter.]
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Dated: FEBRUARY 28, 2003 ENTERED:
/s/ CAROL A. DOYLE
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HON. CAROL A. DOYLE
UNITED STATES BANKRUPTCY JUDGE
Order submitted by:
Neal L. Wolf (IL ARDC No. 6186361)
Todd L. Padnos (IL ARDC No. 6209679)
LEBOEUF, LAMB, GREENE & MACRAE L.L.P.
One Embarcadero Center
San Francisco, CA 94111-3619
Telephone: 415-951-1100
Facsimile: 415-951-1180
COUNSEL FOR DEBTORS AND DEBTORS-IN-POSSESSION
Approved as to Form and Content:
/s/ MATTHEW N. KLEIMAN
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Matthew N. Kleiman (IL ARDC No. 6211317)
KIRKLAND & ELLIS
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2031
Facsimile: (312) 861-2200
COUNSEL TO BUYERS
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EXHIBIT A:
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Purchase Agreement
A-1
EXHIBIT B:
SALE PROCEDURES
As contemplated by and incorporated in that certain Order (A) Authorizing the
Debtors to Enter Into a Purchase Agreement for the Sale of Substantially all
Assets of HA-LO Industries, Inc. and Lee Wayne Corporation, and the Stock of the
European Subsidiaries, and the Assumption and Assignment of Certain Executory
Contracts and Leases; (B) Establishing Notice, Bidding and Sale Procedures; and
(C) Setting Sale Hearing (the "SALE PROCEDURES Order") 1 the following
procedures shall govern the sale of the Assets by Sellers and the purchase of
the Assets by Buyers or by a Qualified Bidder (as defined below) making a
Qualified Overbid (as defined below) pursuant to the terms of a negotiated
purchase agreement between Sellers and the Successful Bidder (as defined below).
1. BUYERS' EARNEST MONEY DEPOSIT.
Within three (3) business days following the entry of the Sale
Procedures Order on the docket of the United States Bankruptcy Court
for the Northern District of Illinois, Eastern Division (the "COURT"),
Buyers shall pay an earnest money deposit in the amount of $1,060,000
(the "BUYERS' EARNEST MONEY Deposit") into a separate, interest
bearing, escrow account at Bank One N.A. The Buyers shall bear the
costs of opening and maintaining such escrow account. The Buyers'
Earnest Money Deposit shall remain in such account pending release
pursuant to paragraph 14 of the Sale Procedures, or upon further order
of the Court.
2. SOLICITATION RIGHTS.
Notwithstanding anything to the contrary contained within the Purchase
Agreement or any other agreement of the Debtors, the Debtors may (a)
enter into, solicit, initiate or continue any discussions or
negotiations with any party to acquire all or substantially all of the
Assets outside of the ordinary course of business, and (b) disclose
non-public information concerning the Assets to Qualified Bidders upon
their compliance with the participation requirements set forth in these
Sale Procedures.
3. DETERMINATION OF QUALIFIED BIDDERS.
(a) In order to participate in the bidding process and to receive
non-public information concerning the Assets, each person or
entity other than Buyers (a
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1 Capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to such terms in the Purchase Agreement and/or the
Sale Procedures Order, provided however that the meanings ascribed in the
Sale Procedures Order shall be controlling.
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"POTENTIAL BIDDER") must deliver (unless previously delivered) to the
Debtors the following materials:
(i) an executed confidentiality agreement substantially in the
form of Exhibit D to the Sale Procedures Order (a
"CONFIDENTIALITY AGREEMENT"); and
(ii) current financial statements (audited if available) of the
Potential Bidder, or, if the Potential Bidder is an entity
formed for the purpose of acquiring the Assets or the portion
thereof that is the subject of the Potential Bidders'
contemplated bid, current financial statements (audited if
available) of the equity holder(s) of the Potential Bidder
who shall guarantee the obligations of the Potential Bidder
or such other form of financial disclosure or credit-quality
support information or enhancement acceptable to the Debtors,
in their sole discretion, demonstrating such Potential
Bidder's ability to close the proposed transaction.
(b) A "QUALIFIED BIDDER" is a Potential Bidder that delivers the
documents described in subparagraph (a) above, and that the
Debtors, in their sole discretion, determine is capable (based on
availability of financing, experience and/or other considerations
deemed relevant by the Debtors, in their sole discretion) of
submitting a bona fide offer and consummating the transactions
contemplated there under if selected as the Successful Bidder
(defined below).
(c) Within two (2) business days after a Potential Bidder delivers all
of the materials required by subparagraph (a) above (or within
such additional time as the Debtors may reasonably require), the
Debtors shall determine and shall notify the Potential Bidder in
writing, with a copy to the Committee and the Buyers, whether the
Potential Bidder is a Qualified Bidder. At the same time that the
Debtors notify the Potential Bidder that it is a Qualified Bidder,
the Debtors shall provide the Qualified Bidder with the following:
(i) access to the same confidential, evaluation materials and
information provided by the Debtors to Buyers containing
financial information and other data related to the Debtors
and/or such other information as the Qualified Bidder may
reasonably request, and
(ii) a copy of the Purchase Agreement.
(d) Neither the Debtors nor any of their affiliates (or any of their
respective representatives) shall be obligated to furnish any
information related to the Debtors not theretofore given to
Buyers. If any such information is furnished, the Debtors shall
forthwith provide Buyers with such information.
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(e) Notwithstanding anything in these Sale Procedures to the contrary,
Buyers shall be deemed a Qualified Bidder for all applicable
purposes under these Sale Procedures upon depositing the Buyers'
Earnest Money Deposit into escrow.
4. DETERMINATION OF QUALIFIED BIDS.
(a) Except as provided below in subparagraph (d), to qualify for
participation in the Auction, a Qualified Bidder, excluding the
Buyers, must, on or before the sixth day prior to the Auction,
place a cash deposit of not less than $1,060,000 (a "BIDDER
EARNEST MONEY DEPOSIT") into a separate, segregated, interest
bearing, account at LaSalle N.A.
(b) Except as provided below in subparagraph (d), to qualify for
consideration at the Auction, any offer, solicitation or proposal
(a ("BID") from a Qualified Bidder must satisfy each of the
following conditions:
(i) such Bid identifies the bidder and a representative thereof
who is authorized to appear and act on behalf of the bidder
for all purposes in connection with such bidder's effort to
purchase the Assets;
(ii) such Bid is for all or substantially all of the Assets, and
such Bid is on substantially the same terms and conditions as
the Purchase Agreement;
(iii)such Bid includes a copy of the Purchase Agreement marked to
show all changes requested by such bidder (including those
related to purchase price), along with any other bid package
requirements;
(iv) such Bid contains no financing or due diligence contingencies
of any kind or any other conditions precedent to the bidder's
obligation to purchase the Assets other than as may be
included in the Purchase Agreement;
(v) such Bid is for more than an amount equal to the aggregate of
the sum of:
(A) the Cash Portion (as defined in the Purchase Agreement)
in cash;
(B) $250,000 in cash;
(C) the dollar value of the Breakup Fee in cash;
(D) the dollar value of the Expense Reimbursement in cash;
(E) cash or a note (or any combination thereof) in an
aggregate principal amount of $5,000,000; PROVIDED that
the discount factor applied to the Buyers' note shall be
15% when compared against a competing all-cash bid, and
PROVIDED that no note shall be considered for purposes
of this clause (E) if such note contains terms less
favorable to the Debtors than those contained in the
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form of Term Note attached to the Purchase Agreement as
Exhibit B; and
(F) cash or a note (or any combination thereof) in an
aggregate principal amount of $3,000,000; PROVIDED that
no note shall be considered for purposes of this clause
(F) if such note contains terms less favorable to the
Debtors than those contained in the Contingent Note
attached as Exhibit C to the Purchase Agreement;
(vi) such Bid does not request or entitle the bidder to any
break-up fee, termination fee, expense reimbursement or
similar type of payment;
(vii)such Bid contains written evidence that the bidder
submitting it has the present financial ability or has
received debt and/or equity funding commitments sufficient in
the aggregate to finance the purchase contemplated thereby;
(viii)such Bid is received by the Sellers in writing on or prior
to March 26, 2003 at 4:00 p.m. Central time, the sixth
business day prior to the Auction;
(ix) such Bid is irrevocable until the date (the "IRREVOCABLE
OFFER EXPIRATION DATE") that is the earlier to occur of (a)
48 hours after the closing of the sale of the Assets to the
Successful Bidder (as defined below) or (b) the close of
business on the twentieth (20th) day following the conclusion
of the Sale Hearing (as defined below);
(x) such Bid provides for the payment of the Breakup Fee and
Expense Reimbursement to Buyers on the terms set forth in the
Sale Procedures Order and these Sale Procedures.
(c) A Bid received from a Qualified Bidder that satisfies each of the
conditions in clauses (a) and (b) above shall constitute a
"QUALIFIED BID."
(d) A Bid received from a Qualified Bidder which satisfies each of the
conditions in subparagraph (b) above, except for subparagraphs
(b)(ii) and (b)(v), shall constitute a "QUALIFIED PARTIAL BID",
PROVIDED that Marc Simon may not make or in any way participate in
any bid or partial bid.
(e) A Qualified Partial Bid will be considered for the Auction, and
Bidders submitting Qualified Partial Bids shall be allowed to
participate in the Auction ONLY IF (i) the Debtors receive
additional non-overlapping Qualified Partial Bids such that some
combination of the Qualified Partial Bids received by the Debtors,
if accepted and executed without modification, would yield
individual asset sales amounting to a sale of all or substantially
all of the Assets (a "QUALIFIED AGGREGATE BID"), and (ii) the
aggregate deposit made by bidders submitting Qualified Partial
Bids which could be combined to form a Qualified Aggregate Bid
shall be not less than $1,060,000. The Debtors, in their sole
discretion, shall
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determine which non-overlapping Qualified Partial Bids to include
in the Qualified Aggregate Bid and shall assemble and present such
Bids in a way that allows for the ready comparison of the
Qualified Aggregate Bid against all other Qualified Bids.
(f) Only Bids received from Qualified Bidders may constitute Qualified
Bids or Qualified Partial Bids. Any party may seek review by the
Court of Sellers' determination whether a bidder is a Qualified
Bidder or has submitted a Qualified Bid or Qualified Partial Bid;
PROVIDED, HOWEVER, that any such challenge must be raised and
concluded prior to the commencement of the Auction; upon
commencement of the Auction, the Sellers' determination shall
become irrevocable and unreviewable.
(g) Notwithstanding anything in these Sale Procedures to the contrary,
the Bid of Buyers embodied in the Purchase Agreement, upon deposit
of the Buyers Earnest Money Deposit into escrow, shall be deemed a
Qualified Bid for all applicable purposes under these Sale
Procedures.
5. NOTICE OF AUCTION.
If the Debtors receive a Qualified Bid, other than Buyers' Bid as
embodied in the Purchase Agreement, or a Qualified Aggregate Bid, an
auction (the "AUCTION") will be held on April 3, 2003 at 9:00 a.m.
Central time at the offices of the Debtors' investment banker, Lincoln
Partners LLC, 200 West Madison Street, Suite 2100, Chicago, Illinois
60606 or such other location as hereafter designated by the Debtors. On
or prior to 5:00 p.m. Central time on March 27, 2003, the fifth
business day prior to the Auction, the Debtors shall provide to Buyers,
the Committee and each Qualified Bidder that has submitted a Qualified
Bid or Qualified Partial Bid:
(a) written notice of the Auction;
(b) a copy of the highest and best Qualified Bid or Qualified
Aggregate Bid received by the Debtors, as determined by Debtors in
their sole discretion after consultation with the Committee (the
"INITIAL SUCCESSFUL BID"); and
(c) copies of all other Qualified Bids, Qualified Partial Bids, and
the Qualified Aggregate Bid if the Qualified Aggregate Bid was not
selected as the Initial Successful Bid.
If, subsequent to the receipt of any Qualified Bid, the Debtors receive
any amended or supplemented Qualified Bids, Qualified Partial Bids, or
related materials, the Debtors shall immediately provide a copy thereof
to the Committee, the Buyers and each Qualified Bidder that has
submitted a Qualified Bid or Qualified Partial Bid; PROVIDED, HOWEVER,
that no bidder shall be permitted to amend or supplement a
non-Qualified Bid nor submit an otherwise Qualified Bid after March 26,
2003 at 4:00 p.m. Central time, the sixth business day prior to the
Auction.
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6. AUCTION PARTICIPATION AND ATTENDANCE.
The only parties eligible to participate in the Auction shall be (i)
the Buyers, (ii) those Qualified Bidders who have submitted a Qualified
Bid to the Debtors, and (iii) those Qualified Bidders who have
submitted a Qualified Partial Bid to the Debtors, PROVIDED that there
exists a Qualified Aggregate Bid. Representatives of, and advisors to,
LaSalle Bank, N.A., the Committee, the United States Trustee and all
other parties in interest shall be entitled to attend the Auction.
7. AUCTION PROCESS.
(a) The Auction shall be directed and presided over by the Sellers and
their professionals. At the commencement of the Auction, the
Sellers shall announce the then existing lead Bid. All bids shall
be made and received in one room, on an open basis, and all
material terms of each bid shall be fully disclosed to all other
bidders.
(b) Except as provided in subparagraph (c) immediately below, at the
Auction, Buyers and any Qualified Bidder who submitted a Qualified
Bid or Qualified Partial Bid shall be permitted to submit overbid
bids (an "OVERBID"). An Overbid will not be considered by the
Debtors as qualified for the Auction unless:
(i) such Overbid is higher than the then existing lead Bid in an
increment of not less than $250,000; PROVIDED, however, any
Overbid by Buyers shall only be required to be equal to the
sum of:
(A) the then existing lead Bid PLUS,
(B) $250,000 LESS,
(C) the dollar value of the Breakup Fee LESS,
(D) the dollar value of the Expense Reimbursement.
(ii) such Overbid identifies the bidder and a representative
thereof who is authorized to appear and act on behalf of the
bidder for all purposes in connection with such bidder's
effort to purchase the Assets;
(iii)such Overbid is for all or substantially all of the Assets,
and such Overbid is on substantially the same or better terms
and conditions as the Purchase Agreement;
(iv) such Overbid includes a copy of the Purchase Agreement marked
to show all changes requested by such Qualified Bidder
(including those related to purchase price), along with any
other bid package requirements;
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(v) such Overbid contains no financing or due diligence
contingencies of any kind or any other conditions precedent
to the bidder's obligation to purchase the Assets other than
as may be included in the Purchase Agreement;
(vi) such Overbid does not request or entitle the bidder to any
break-up fee, termination fee, expense reimbursement or
similar type of payment;
(vii) such Overbid contains written evidence that the bidder
submitting it has the present financial ability or has
received debt and/or equity funding commitments sufficient in
the aggregate to finance the purchase contemplated thereby;
(viii) such Overbid is irrevocable until the Irrevocable Offer
Expiration Date; and
(ix) such Overbid provides for the payment of the Breakup Fee and
Expense Reimbursement to Buyers on the terms set forth in the
Sale Procedures Order and these Sale Procedures (Any Overbid
which meets the requirements of subsections (i) through (ix)
above shall be deemed a "QUALIFIED OVERBID"); but PROVIDED
that
(x) in the case of bids based upon Qualified Partial Bids,
such Qualified Partial Bid may be altered or re-submitted in
the sole discretion of the Bidder, provided that such bid
complies with the provisions of subparagraphs (b) (ii); (iv);
(v); (vi); (vii); (viii) and (ix) above. A Qualified Partial
Bid will be considered for any given round of the Auction
only if such bid can be combined with other Qualified Partial
Bids to yield a Qualified Aggregate Bid (individually, a
"QUALIFIED PARTIAL OVERBID" and collectively, a "QUALIFIED
AGGREGATE OVERBID"), provided that the Qualified Aggregate
Overbid must, considered as a whole, meet all the
requirements of subsections (i) through (ix) above. The
Sellers shall, in their sole discretion, determine which
Qualified Partial Overbids to include in the Qualified
Aggregate Overbid, and shall, in each round of the Auction,
as necessary, assemble and present such Bids in a way that
allows for the ready comparison of the Qualified Aggregate
Overbid as against all Qualified Overbids received in that
round of the Auction.
PROVIDED, HOWEVER, that any Overbid of Buyers in materially the
same form as the Purchase Agreement (except as to the purchase
price) shall be deemed to satisfy clauses (ii) through (ix) above,
provided that the Debtors, in their commercially reasonable
business judgment, are satisfied that the Buyers have the present
financial ability or have received debt and/or equity funding
commitments sufficient to meet the incremental financial
commitment represented by such overbid above their original bid.
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(c) At the Auction, any Qualified Partial Bidder who submitted a
Qualified Partial Bid shall be permitted to submit an Overbid for
less than all of the Assets provided that such bidder satisfies
the provisions of subparagraphs (b) (ii); (iv); (v); (vi); (vii);
(viii); (ix) and (x) above.
(d) The Sellers shall not close the Auction unless and until Buyers
have been given a reasonable opportunity to submit an Overbid at
the Auction to the then existing lead Bid.
8. SELECTION OF SUCCESSFUL BIDDER AND BACKUP BIDDER.
(a) At the close of the Auction, the Debtors, in their sole
discretion, after consultation with the Committee, shall have the
right to select the highest and best Bid or Bids from Buyers, any
other Qualified Bidder who submitted a Qualified Overbid, or
collection of Qualified Bidders who submitted a Qualified
Aggregate Overbid (the "SUCCESSFUL BIDDER"), which will be
determined by considering, among other things:
(i) the number, type and nature of any changes to the Purchase
Agreement requested by each bidder or collection of bidders;
(ii) the extent to which such requested modifications to the
Purchase Agreement are likely to delay closing of the sale of
the Assets and the cost to the Debtors of such modifications
or delay;
(iii) the total consideration to be received by the Debtors;
(iv) the likelihood of each bidder's ability to timely close a
transaction and make any deferred payments, if applicable;
and
(v) the net benefit to the estate, taking into account Buyers'
rights to the Breakup Fee and Expense Reimbursement. 2
(b) At the close of the Auction, the Debtors will also have the right
to select the second highest Bid or Bids (the "BACKUP BID") from
Buyers, any other Qualified Bidder who submitted a Qualified Bid,
or any collection of Qualified Bidders who submitted a Qualified
Aggregate Bid (the "BACKUP BIDDER"), which will be determined by
considering, among other things, the same criteria outlined above
for the selection of the Successful Bidder. Sellers may thereafter
seek Court
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2 For avoidance of doubt, the Debtors hereby agree that the value attributed
by the Debtors to any Bid made by the Buyers at the Auction shall at least
be equal to the sum of the following: (a) the dollar value of the cash
consideration contained in such Bid; (b) the dollar value of any additional
consideration contained in such Bid (including the value of any assumed
liabilities); (c) the dollar value of the Breakup Fee ($540,000); and (d)
the dollar value of the Expense Reimbursement ($520,000).
B-8
approval of the Backup Bid. In the event that the Court approves
the Backup Bid and the Successful Bidder fails to timely close on
the purchase of the Assets, Sellers shall be permitted (but not
required), in their discretion after consultation with the
Committee, to sell the Assets to the Backup Bidder in accordance
with the terms of the Backup Bid without further Court order.
Notwithstanding anything in these Sale Procedures to the contrary,
Buyers reserve the right, at the close of the auction, in their
sole discretion, to refuse to be the Backup Bidder, in which event
the Debtors shall be entitled to treat the third highest Bid or
Bids as the Backup Bid.
(c) The Debtors will use their best efforts to obtain approval of (i)
if no other Qualified Bid or Qualified Aggregate Bid was received,
the sale of the Assets to Buyers pursuant to the terms and
conditions set forth in the Purchase Agreement; or (ii) if a
Qualified Bid or Qualified Aggregate Bid was received, the sale of
the Assets to the Successful Bidder pursuant to the form of the
Purchase Agreement agreed to by the Debtors and the Successful
Bidder(s).
9. ACCEPTANCE OF QUALIFIED BIDS.
The Debtors presently intend to sell the Assets to the Successful
Bidder, pursuant to the form of the Purchase Agreement agreed to by the
Debtors and the Successful Bidder. The Debtors' presentation to the
Court for approval of a particular Qualified Bid or Qualified Aggregate
Bid shall not constitute the Debtors' acceptance of such bid, except
with respect to the bid of Buyers as embodied in the Purchase Agreement
(subject to higher or otherwise better Qualified Bids and subject to
Court approval). The Debtors shall have accepted another Qualified Bid
or Qualified Aggregate Bid only when such Bid has been approved by the
Court at the Sale Hearing. Except as otherwise provided in the Purchase
Agreement agreed to by the Debtors and the Successful Bidder, all of
the Debtors' right, title and interest in and to the Assets shall be
sold free and clear of all liens, claims, encumbrances, and interests
thereon and there against (collectively, the "TRANSFERRED LIENS"), with
such Transferred Liens to attach to the proceeds of the Assets with the
same validity and priority as the Transferred Liens had on the Assets
immediately prior to their sale.
10. THE SALE HEARING.
The hearing (the "SALE HEARING") on the Sale Motion shall be held on
April 3, 2003 at 2:00 p.m. Central time in the Courtroom of the
Honorable Carol A. Doyle, and may be adjourned from time to time
without further notice other than an announcement in open court at the
Sale Hearing. At the Sale Hearing, if no other Qualified Bid was
received, the Debtors will seek entry of an order, INTER ALIA,
authorizing and approving the sale of the Assets to Buyers pursuant to
the terms and conditions set forth in the Purchase Agreement; or, if a
Qualified Bid or Qualified Aggregate Bid was received, to the
Successful Bidder pursuant to the form of the Purchase Agreement agreed
to by the Debtors and the Successful Bidder(s).
B-9
11. BREAKUP FEE.
Sellers shall immediately pay (in cash) to Buyers a topping fee (the
"BREAKUP FEE") equal to $540,000 upon the first to occur of the
following conditions (unless there has been a material breach of the
Purchase Agreement by the Buyers): (i) upon closing if the Debtors sign
a higher and better agreement with another party and consummate such
agreement; (ii) at closing if the Debtors sign a higher and better
agreement with another party and ultimately close at a price lower than
the price represented by the Buyers' final offer; or (iii) within 150
days after the entry of the Sale Order if the Debtors sign a higher and
better offer with another party and ultimately fail to close such
transaction.
12. EXPENSE REIMBURSEMENT.
If the transactions contemplated by the Purchase Agreement are not
consummated other than by reason of a material breach by Buyers,
Sellers shall pay (in cash) to Buyers, Buyers' reasonable expenses, not
to exceed $520,000 (the "EXPENSE REIMBURSEMENT"), in performing its due
diligence, negotiating the Purchase Agreement and related documents,
and attempting to have the Bankruptcy Court approve the sale to Buyers,
payable upon the earlier to occur (as applicable) of (i) the closing of
a transaction proposed by any Acquisition Proposal (as defined in the
Purchase Agreement) with a Person(s) (as defined in the Purchase
Agreement) other than Buyers, (ii) within 150 days after the Debtors
sign an agreement proposed by an Acquisition Proposal (as defined in
the Purchase Agreement) with a Person(s) (as defined in the Purchase
Agreement) other than the Buyers, or (iii) failure of the Debtors to
consummate the transactions contemplated in the Purchase Agreement in
favor of a plan-based restructuring, provided that the Buyers are not
in default under the Purchase Agreement, that the Buyers are otherwise
prepared to consummate such transactions, and provided that the Buyers
have not reduced the purchase price contemplated in the Purchase
Agreement or otherwise adversely changed the terms of the Purchase
Agreement.
13. TREATMENT OF EARNEST MONEY DEPOSITS.
All interest accruing on the Buyer Earnest Money Deposit and the Bidder
Earnest Money Deposits, if any, (collectively, the "Earnest Money
Deposits") shall accrue to the benefit of the party posting such
deposit and such party shall be liable for any taxable income related
thereto. To the extent that the party posting the Earnest Money Deposit
is entitled to a refund of its deposit, such party shall receive a
superpriority administrative claim with respect to the funds in the
account established for the deposit of the party's Earnest Money
Deposit.
14. DISBURSEMENT/APPLICATION OF EARNEST MONEY DEPOSITS.
(a) DEPOSITS POSTED BY THE SUCCESSFUL BIDDER. An Earnest Money Deposit
posted by the Successful Bidder shall be treated in the following
fashion:
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(i) In the event that the Successful Bidder closes on the sale of
the Assets on or before the Closing Date (as defined in the
Purchase Agreement), its Earnest Money Deposit shall be
applied as a credit towards the purchase price.
(ii) In the event that all conditions to closing have been
satisfied and the Successful Bidder does not close on the
sale of the Assets on or before the Closing Date (as defined
in the Purchase Agreement), it shall forfeit its Earnest
Money Deposit to the Debtors.
(b) DEPOSITS POSTED BY THE BACKUP BIDDER. An Earnest Money Deposit
posted by the Backup Bidder shall be treated in the following
fashion:
(i) In the event that the Successful Bidder closes on the sale of
the Assets, the Debtors shall refund the Backup Bidder's
Earnest Money Deposit on the Irrevocable Offer Expiration
Date (provided there has been no material breach by the
Buyers).
(ii) In the event that the Successful Bidder fails to timely close
on its proposed purchase of the Assets and the Debtors call
upon the Backup Bidder to consummate its proposed purchase of
the Assets, and the Backup Bidder closes on the sale of the
Assets within five business days after demand by the Debtors,
then the Earnest Money Deposit posted by the Backup Bidder
shall be applied as a credit towards the purchase price.
(iii) In the event that the Successful Bidder fails to timely
close on its proposed purchase of the Assets and the Debtors
call upon the Backup Bidder to consummate its proposed
purchase of the Assets (assuming all conditions to closing
have been satisfied), if the Backup Bidder fails to close on
the sale of the Assets within five business days after demand
by the Debtors, then the Earnest Money Deposit posted by the
Backup Bidder shall be forfeited to the Debtors.
(c) DEPOSITS POSTED BY BIDDERS WHOSE OFFERS ARE NOT APPROVED BY THE
COURT. An Earnest Money Deposit posted by an entity that has made
a Bid that is not approved by the Court at the Sale Hearing as
either the Successful Bid or the Backup Bid shall be refunded to
the bidder on the Irrevocable Offer Expiration Date.
(d) DEPOSIT POSTED BY BUYERS. Notwithstanding anything in these Sale
Procedures to the contrary, and provided that the Buyers have not
materially breached the Purchase Agreement, the Buyer Earnest
Money Deposit shall be refunded to Buyers upon the earlier of (i)
a termination of the Purchase Agreement pursuant to Section 10.1
thereof, (ii) if the Bankruptcy Court approves an Acquisition
Proposal (as defined in the Purchase Agreement) with a Person(s)
(as defined in the Purchase Agreement) other than Buyers, on the
Irrevocable Offer Expiration
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Date, and (iii) the entry by the Bankruptcy Court of an Order
directing the refund of the Buyer Earnest Money Deposit to Buyers.
15. NOTICES TO BUYERS.
Any notices to Buyers shall be served on (a) Douglas Berman & Anthony
DiSimone, c/o H.I.G. Capital LLC, 1001 Brickell Bay Drive, 27th Floor,
Miami, FL 33131, fax (305) 379-2013; and (b) Matthew N. Kleiman,
Kirkland & Ellis, 200 E. Randolph Drive, Suite 6500, Chicago, IL 60601,
fax (312) 861-2200.
16. MODIFICATION, AMENDMENT AND WAIVER.
These Sale Procedures may not be materially modified, amended or waived
by the Debtors or any other party absent order of the Court. Sellers
reserve their rights to impose, at or prior to the Auction, additional
terms and conditions on a sale of the Assets consistent with the sale
procedures contained herein.
B-12
EXHIBIT C TO SALE PROCEDURES ORDER
(SALE NOTICE)
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
IN RE: | CHAPTER 11
|
HA-LO INDUSTRIES, INC., ET AL., | CASE NO. 02 B 12059
| (JOINTLY ADMINISTERED)
|
DEBTORS AND | HON. CAROL A. DOYLE
|
DEBTORS-IN-POSSESSION. | CONTEMPLATED AUCTION DATE:
| APRIL 3, 2003 AT 9:30 A.M. CT
- ---------------------------------------------|
NOTICE OF SALE OF SUBSTANTIALLY ALL OF THE ASSETS
OF HA-LO INDUSTRIES, INC. AND LEE WAYNE CORPORATION
---------------------------------------------------
Please be advised that HA-LO Industries, Inc. ("HA-LO") and its wholly-owned
subsidiary Lee Wayne Corporation ("Lee Wayne" and collectively with HA-LO
referred to as "Seller"), Debtors and Debtors-in-Possession herein, have entered
into a Purchase Agreement dated as of February 21, 2003 (the "Purchase
Agreement"), pursuant to which it has agreed to sell (i) substantially all of
the assets of HA-LO, (ii) substantially all of the assets of Lee Wayne, and
(iii) substantially all of the stock of HA-LO's European subsidiaries
(collectively, the "Subject Assets") to HA-LO Promotions Acquisition Corp. and
HA-LO Holdings BV ("Buyers") for $14 million in cash, a $5 million
non-contingent, secured promissory note, a $3 million contingent, unsecured
promissory note payable in the event that Buyer exceeds a performance target
defined therein, plus the assumption of certain liabilities and additional
consideration identified in the Purchase Agreement, subject to overbid and
Bankruptcy Court approval.
On February 24, 2003, Seller filed its Motion Of Debtors And
Debtors-in-Possession HA-LO Industries, Inc. And Lee Wayne Corporation For The
Entry Of An Order Granting Them The Authority To (A) Sell Substantially All Of
Their Assets, (B) Assume And Assign Certain Executory Contracts And Unexpired
Leases, (C) Consummate Certain Other Related Transactions Contemplated Under The
Purchase Agreement, and (D) Waive The Ten-Day Stay Otherwise Applicable To Sales
Of Estate Property And Assignments Of Executory Contracts [IL Dkt. No. 677] (the
"Sale Motion"). A Copy of the Purchase Agreement is attached to the Sale Motion.
On ________ ___, 2003, the United States Bankruptcy Court for the Northern
District of Illinois, Eastern Division, (the "Court") entered an Order
establishing the notice, bidding and sale procedures governing the contemplated
sale of the Subject Assets (the "Sale Procedures Order"). The Court scheduled a
hearing on the Sale Motion and the contemplated sale of the Subject Assets for
April 3, 2003, commencing at 2:00 p.m. Central time in Courtroom 742 of the
Everett McKinley Dirksen Federal Courthouse, 219 South Dearborn Street, Chicago,
Illinois. In addition, the Court required that any objections to the relief
requested in the Sale Motion and any objections to the proposed Sale Order be
filed with the Court and served upon the parties identified in the Sale
Procedures Order on or prior to 4:00 p.m. Central time on March 27, 2003.
Any person or entity that is interested in bidding upon all or a portion of the
Subject Assets must comply with the Sale Procedures Order. Under the procedures
set forth therein, an interested bidder must, among other things, submit to
Seller a Qualified Bid to purchase the Subject Assets, or a portion thereof,
prior to 4:00 p.m. Central time on March 26, 2003. In order to be considered as
a Qualified Bid, the bid must comply with the requirements set forth in the Sale
Procedures Order.
In the event that you wish to explore the possibility of submitting a Qualified
Bid, please contact Todd L. Padnos, Esq. of LeBoeuf, Lamb, Greene & MacRae, LLP,
Seller's bankruptcy counsel. Mr. Padnos will provide you with a copy of the Sale
Procedures Order and coordinate a due diligence examination of the Subject
Assets upon compliance with the Sale Procedures approved by the Bankruptcy
Court.
-----------------------------------------
Neal L. Wolf , Esq.
Todd L. Padnos, Esq.
LEBOEUF, LAMB, GREENE & MACRAE, LLP
One Embarcadero Center
San Francisco, California 94111-3619
Telephone: (415) 951-1100
Facsimile: (415) 951-1180
COUNSEL FOR DEBTORS AND DEBTORS-IN-POSSESSION
EXHIBIT D
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into by HA-LO
Industries, Inc. and its affiliates (collectively, "Company") and the
undersigned ("Recipient").
RECITALS
A. Recipient desires access to certain non-public, confidential or
proprietary information about Company, in connection with a possible
transaction.
B. In order to induce Company to provide access to the Information (as
hereinafter defined), Recipient hereby agrees to be bound by the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of Recipient being furnished the
Information, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and Recipient hereby agree
as follows:
1. The term "Recipient" as used in this Agreement shall refer to the
Recipient and (i) its affiliates, subsidiaries, and divisions; (ii) any
corporation or entity which directly or indirectly, through
intermediaries or otherwise, controls or owns a controlling interest in
Recipient and (iii) the directors, officers, employees or agents of any
of these.
2. All information ascertained by or furnished to Recipient or Recipient's
representatives, including without limitation Recipient's attorneys,
accountants, consultants and financial advisors (collectively,
"representatives"), by the Company or any of its respective
representatives, and all analyses, compilations, data, studies or other
documents prepared by Recipient or Recipient's representatives
containing or based in whole or in part on any such furnished
information or reflecting Recipient's review of, or interest in,
Company is hereinafter referred to as the "Information."
Notwithstanding the foregoing or anything to the contrary in this
Agreement, Information shall not include information which: (i) is or
becomes generally available to the public other than as a result of an
unauthorized disclosure by Recipient or Recipient's representatives;
(ii) is or becomes available to Recipient on a nonconfidential basis
from any source excluding the Company or one of its representatives,
which source has represented to Recipient (and which Recipient has no
reason to disbelieve after due inquiry) is entitled to disclose it,
provided that upon Recipient's becoming aware that such source was not
entitled to disclose such Information, this Agreement shall thereafter
apply to such Information or (iii) was known to Recipient on a
nonconfidential basis prior to its disclosure to Recipient by the
Company or one of its representatives.
3. As a condition of the Company providing the Information, all
Information (whether or not marked confidential) will be kept
confidential by Recipient and will not, without the prior written
consent of the Company, be disclosed by Recipient or Recipient's
D-1
representatives, in any manner whatsoever, in whole or in part, and
will not be used by Recipient or Recipient's representatives directly
or indirectly for any purpose other than evaluating the transaction
referred to above. Moreover, Recipient agrees to transmit the
Information only to those directors, officers, employees, agents and
representatives who need to know the Information for the purpose of
evaluating the transaction referred to above and who are informed by
Recipient of the confidential nature of the Information and the terms
of this Agreement. Recipient will be responsible for any breach of this
Agreement by Recipient's representatives.
4. Neither Recipient nor its representatives will, without the prior
written consent of the Company, disclose to any other person the fact
that the Information has been made available, that discussions or
negotiations are taking place concerning a possible transaction
involving Company, or any of the terms, conditions or other facts with
respect to any such possible transaction, including the status thereof
except as required by law or by the rules of any recognized stock
exchange and then, if circumstances permit, only with prior written
notice to the Company as soon as possible. If circumstances make it
impossible to give such prior written notice, then any disclosure made
shall be no more extensive than is necessary to meet the minimum
requirement imposed on the party making such disclosure.
5. In the event Recipient is requested (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigate demand or similar process) to disclose any part of the
Information, Recipient shall notify the Company promptly of such
request(s), and the documents requested thereby, so that the Company
may seek an appropriate protective order and/or waive in writing
Recipient's obligation not to disclose the Information. The parties
further agree that, if in the absence of a protective order or the
receipt of a waiver hereunder, Recipient is nonetheless, in the opinion
of its counsel, compelled to disclose all or part of the Information or
else stand liable for contempt or suffer other censure or penalty from
any tribunal or governmental or similar authority, Recipient may
disclose such information without liability hereunder; provided
however, that Recipient shall deliver to the Company written notice of
the information to be disclosed as far in advance of its disclosure as
is practicable, and shall use reasonable efforts to obtain an order or
other reliable assurance that confidential treatment will be accorded
to such portion of the Information required to be disclosed.
6. The Information, and all copies thereof, except for that portion of the
Information which consists of analyses, compilations, data, studies or
other documents prepared by Recipient or Recipient's representatives
will remain the absolute property of the Company and will be returned
or destroyed (and such destruction confirmed in writing) without
retaining any copies thereof to the Company immediately upon the
Company's request. That portion of the Information which consists of
analyses, compilations, data, studies or other documents prepared by
Recipient will be immediately destroyed at the request of the Company
and such destruction will be confirmed to the Company in writing.
D-2
7. Recipient acknowledges that neither the Company nor any of its
representatives makes any representation or warranty as to the accuracy
or completeness of the Information. Recipient agrees that neither the
Company nor any representatives of either of them shall have any
liability to Recipient or to any of Recipient's representatives as a
result of the use of the Information by Recipient and Recipient's
representatives, it being understood that only those particular
representations and warranties which may be made to the purchaser of
Company in a definitive agreement, when, as and if it is executed, and
subject to such limitations and restrictions as may be specified in
such definitive agreement, shall have any legal effect. Recipient
hereby agrees that in no event, whether or not a definitive agreement
is entered into between Recipient and the Company, will Recipient have
or assert any claims whatsoever against any of the Company's
representatives relating to or in any way connected with the subject
matter of this Agreement.
8. Recipient shall have no discussion, correspondence, or other contact
concerning the Company or any transaction with or concerning the
Company except with "Designated Representatives" of Company. Lincoln
Partners shall provide Recipient with a list of Designated
Representatives, as appropriate.
9. The parties agree that owing to the nature of this Agreement and the
Information, money damages would not be a sufficient remedy for any
breach of this Agreement by Recipient and that the Company shall be
entitled to seek specific performance and injunctive and/or other
equitable relief as a remedy for any such breach. Recipient hereby
agrees to waive any requirement for the securing or posting of any bond
in connection with such remedy. Such remedy shall not be deemed to be
the exclusive remedy for breach by Recipient of this Agreement, but
shall be in addition to all other remedies available at law or equity
to the Company.
10. Recipient agrees that for a period of two years from the date of
execution of this Agreement, that Recipient will not, directly or
indirectly, solicit for employment any employee of the Company with
whom Recipient has had or will have direct contact or who become known
to Recipient in connection with Recipient's consideration of the
transaction; provided, however, that general solicitations for
employment in a newspaper or similar media conducted by or on behalf of
Recipient, shall not constitute a violation of the foregoing
restriction.
11. It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege under this
Agreement shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise of any
right, power or privilege hereunder.
12. Unless otherwise provided specifically for herein, the restrictions
imposed hereby shall continue for a period of three years from the date
of this Agreement.
13. Nothing herein shall be construed to require either party to conduct
any negotiations with the other with respect to a transaction involving
Company.
D-3
14. No provision of this Agreement may be waived or amended unless such
waiver or amendment is in writing. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter
hereof.
15. This Agreement may be executed in one or more counterparts, and by
facsimile signatures, each of which shall be an original document, and
all of which together shall constitute one and the same instrument.
16. This Agreement shall be governed and construed in accordance with the
laws of the State of Illinois applicable to agreements made and to be
performed within such state.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
written below.
COMPANY:
Lincoln Partners LLC, on behalf of the Company
By:
------------------------------------------
Its:
------------------------------------------
RECIPIENT:
----------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
Date:-----------------------------------------
D-4