SHARE PURCHASE AGREEMENT
SHARE
PURCHASE AGREEMENT
(the
“Agreement”),
dated
as of August 9, 2006 by and among The Xxxxxxx Xxxxxx Foundation, a New Jersey
Nonprofit Corporation (the “Seller”),
and D.
E. Shaw Laminar Portfolios, L.L.C. (the “Investor”).
WITNESSETH:
WHEREAS,
the
Seller owns an aggregate of 8,799,466 shares of common stock, stated value
$.10
per share, of Xxxx Xxxxxx and Company, Inc., a New Jersey corporation (the
“Company”),
which
shares constitute approximately 42.2% of the issued and outstanding shares
of
Company common stock; and
WHEREAS,
the
Investor desires to purchase, and the Seller desires to sell, upon the terms
and
conditions set forth herein, 4,399,733 shares of common stock of the Company
(the “RBC
Stock”);
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants set forth below and
other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
ARTICLE
1
PURCHASE
AND SALE OF SHARES
Section
1.1 Purchase
and Sale of RBC Stock.
Subject
to the satisfaction of the conditions set forth in Sections 5.1 and 5.2 hereof
(or the waiver thereof by the party entitled to waive that condition), the
Seller shall sell to the Investor, and the Investor shall purchase from the
Seller on the Closing Date (as defined below), the RBC Stock set forth opposite
the Investor’s name in column (3) on the Schedule of Investors attached hereto
(the “Closing”).
Section
1.2 Purchase
Price.
The
purchase price for the RBC Stock to be purchased by the Investor at the Closing
shall be $11.30 per share (the “Purchase
Price”).
Section
1.3 Form
of Payment.
At the
Closing, the Investor shall pay the Purchase Price to the Seller for the RBC
Stock by wire transfer of immediately available funds into an account designated
by the Seller.
ARTICLE
2
CLOSING
Section
2.1 Closing
Date.
The
date and time of the Closing (the “Closing
Date”)
shall
be 10:00 a.m., New York City Time, at the offices of Weil, Gotshal and Xxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (or at such other time or place as
the
parties may designate in writing) on that date that is one business day
following the satisfaction or waiver of each condition to the Closing set forth
in Sections 5.1 and 5.2 hereof (other than those conditions that may be
satisfied only by a delivery at or action to be taken at the Closing), of which
satisfaction the Seller shall give the Investor same day notice, or on such
other date as the parties may agree.
Section
2.2 Items
To Be Delivered by the Seller.
At the
Closing, and subject to the terms and conditions contained herein, the Seller
shall deliver (i) to the Investor one or more share certificates representing
the RBC Stock to be purchased by the Investor hereunder and that is represented
by certificates owned by the Seller, accompanied by a duly endorsed stock power
in blank or other appropriate instrument of transfer (duly endorsed and
otherwise in form sufficient for transfer and reasonably satisfactory to each
Investor) and (ii) cause to be issued to the Investor confirmation of book
entry
transfer of such of the remaining shares of the RBC Stock as are held for the
Seller's benefit in a Depository Trust Company account into such Depository
Trust Company account of the Investor as may be designated by the Investor,
as
well as deliver each of the other items described in Section 5.1 hereof. After
the Closing, in addition to its obligations under Section 6.6 hereof, the Seller
shall cooperate with the Investor, and use its best efforts, to cause
appropriate share certificates representing the RBC Stock sold to the Investor
hereunder to be recorded in the name of the Investor, as the Investor shall
reasonably request.
Section
2.3 Items
to be Delivered by the Investor.
At the
Closing, and subject to the terms and conditions contained herein, the Investor
shall deliver to the Seller the Purchase Price for the RBC Stock being purchased
by the Investor, and each of the other items described in Section 5.2
hereof.
Section
2.4 Support
of Company Indemnity Obligations.
The
Investor shall not (i) for seven years following the Closing vote any shares
of
the Company owned by it or which it has the power to vote in favor of any
amendment of the certificate of incorporation or the by-laws of the Company
or
any other action on the part of the Company that changes in a manner adverse
to
the individuals who are directors or officers of the Company and are also
trustees or officers of the Seller or are also 2002A Trustees (as defined below)
the provisions of the Company’s certificate of incorporation or by-laws
providing for indemnification of the Company’s directors and officers (the
Seller acknowledges and agrees that voting in favor of any future transaction
in
which the Company may be merged with or into another entity and will not survive
the consummation of the transaction shall not be deemed to implicate this
Section 2.4) or (ii) cause the Company to (which, in the case of any directors
nominated by the Investor, shall be limited to using its commercially reasonable
efforts to cause such designees not to) take any action that would prevent
the
Company from indemnifying such individuals as so provided by such provisions
or
applicable law or that would exclude such individuals from the coverage afforded
by the Company’s directors and officers liability insurance as from time to time
in effect on the same basis as the Company’s directors and officers in office at
that time.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller hereby represents and warrants to the Investor as follows:
Section
3.1 Ownership
of RBC Stock.
The
Seller is the sole record and beneficial owner of the RBC Stock, except that
pursuant to the Receipt, Release, Refunding and Share Voting and Disposition
Agreement (the “2002A
Agreement”),
dated
as of March 28, 2006, among the Stock Trustees of The Xxxxxxx Xxxxxx 2002A
Trust
(as defined in the Indenture of The Xxxxxxx Xxxxxx 2002A Trust) (collectively,
the “2002A
Trustees”)
and the
Seller (a true and complete copy of which has been made available to the
Investor), the 2002A Trustees have the power to determine the voting and any
disposition of 4,624,451 shares of the RBC Stock (including to approve the
sale
thereof by the Seller pursuant hereto) and except that certain of the shares
of
RBC Stock are held for the Seller’s account of record by a nominee of the
Seller’s broker. The RBC Stock constitutes 100% of the shares of common stock of
the Company owned by the Seller and the Seller has no options, warrants or
other
rights to acquire common stock of the Seller. The 2002A Trust Agreement shall
terminate with respect to the RBC Stock at the Closing and, from and after
the
Closing, the 2002A Trustees shall have no voting, dispositive or other rights
with respect to the RBC Stock. Following the Closing, the Investor shall have
no
obligations to the 2002A Trustees of any kind by virtue of its purchase of
the
RBC Stock and the 2002A Trustees shall have no right to assert any claim against
the Investor in connection with the 2002A Agreement. The Seller has valid
marketable title to the RBC Stock free and clear of any lien, security interest
or encumbrance of any nature and free of any claim by any person to or against
such RBC Stock, except as otherwise described above in this Section 3.1. The
Seller shall, as of the Closing, have the full right, power and authority to
sell, assign, transfer and convey the RBC Stock to the Purchaser as provided
herein. The Seller shall transfer all of its right, title and interest in and
to
the RBC Stock to the Investor free and clear of any lien, security interest,
or
other encumbrance of any nature and free of any claim by any person or entity
to
or against the RBC Stock.
Section
3.2 Authorization,
Validity and Enforceability.
This
Agreement and the transactions contemplated of the Seller hereby have been
duly
authorized by the Seller (including by any necessary action of the 2002A
Trustees). This Agreement has been duly executed and delivered by the Seller
and
constitutes the valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms, and the execution, delivery and
performance of this Agreement by it will not violate or result in a default
under any provision of any material commitment, agreement or instrument to
which
the Seller is a party or by which the Seller is bound and will not contravene
any law, rule or regulation of any administrative agency or governmental body,
or any order, writ, injunction or decree of any court, administrative agency
or
governmental agency applicable to the Seller.
Section
3.3 Litigation;
Approvals.
There
are no proceedings pending or, to the knowledge of the Seller, threatened,
and
there is no order, writ, judgment or decree affecting the Seller which, if
adversely determined, would reasonably be expected to have a material adverse
effect on the transactions contemplated hereby. No approval by or filing with
any governmental or regulatory body or other person is required for the Seller
to enter into or perform this Agreement, except for such as have been received
or made and except for any filings under Schedule 13D or Section 16 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
as
Seller may be required to make in connection with this Agreement and the
transactions contemplated hereby. Based on the representation of the Investor
contained in Section 4.2 hereof, the Seller has determined that the transactions
contemplated hereby do not require that the Seller make filings under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
“HSR
Act”).
Section
3.4 [Intentionally
Omitted]
Section
3.5 No
Reliance.
The
Seller understands and acknowledges that the Investor, together with the
Investor’s affiliates, has received material non-public information regarding
the Company and/or the RBC Stock, including historical financial information
and
certain projections relating to the Company’s business. The Seller hereby
represents and warrants that it is financially sophisticated with respect to
the
RBC Stock and the Company; it is represented on the board of directors of the
Company; it is capable of obtaining all information that it deems material
to
the transactions contemplated hereby from its records, its agents, and/or the
Company; it has been afforded the opportunity to ask such questions of the
Company as it deems material to this transaction and such questions have been
addressed to its satisfaction; it is capable of evaluating the risks associated
with a transaction involving the RBC Stock and the Company, including the risk
of transacting on the basis of information that may be materially different
from
the information available to the Investor, and that it is capable of sustaining
any loss that may result from engaging in such a transaction on such basis
without material injury; and it acknowledges that no representations have been
made by the Investor in respect of this transaction or the Company except as
expressly set forth in this Agreement. In light of the foregoing, the Seller
hereby waives any and all claims (including, without limitation, any and all
claims under any applicable securities law) it may have or may hereafter acquire
against the Investor relating to any failure by the Investor to disclose to
the
Seller in connection with the Seller’s sale of the RBC Stock pursuant hereto any
information which may be considered to be material non-public information in
respect of the Company.
Section
3.6 No
Intermediary.
Except
as otherwise disclosed by supplemental letter provided by the Seller to the
Investor, there is no investment banker, broker, finder or other intermediary
who might be entitled to any fee or commission upon consummation of the
transactions contemplated hereby based upon arrangements made by or on behalf
of
the Seller and any such fee or commission as may be payable shall be the sole
responsibility of the Seller and shall be paid by the Seller.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to Seller as follows:
Section
4.1 Validity
and Enforceability.
This
Agreement and the transaction contemplated of the Investor hereby have been
duly
authorized by the Investor. This Agreement has been duly executed and delivered
by the Investor and constitutes the valid and binding obligation of the
Investor, enforceable in accordance with its terms, and the execution, delivery
and performance of this Agreement by it will not violate or result in a default
under any provisions of any material commitment, agreement or instrument to
which the Investor is a party or by which the Investor is bound, and will not
contravene any law, rule or regulation of any administrative agency or
governmental body or any order, writ, injunction or decree of any court,
administrative agency or governmental agency applicable to the
Investor.
Section
4.2 Litigation;
Approvals.
There
are no proceedings pending or threatened, and there is no order, writ, judgment
or decree affecting the Investor, which, if adversely determined, would have
a
material adverse effect on the transactions contemplated hereby. No approval
by
or filing with any governmental or regulatory body or other party is required
for the Investor to enter into or perform this Agreement, except for such as
have been received or made and except for any filing on Schedule 13D or Section
16 under the Exchange Act as the Investor may be required to make in connection
with the transactions contemplated hereby. The Investor has determined that
the
transactions contemplated hereby do not require that the Investor make filings
under the HSR Act.
Section
4.3 Certain
Securities Law Matters.
The
Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D
promulgated pursuant to the Securities Act of 1933. The Investor has substantial
experience in evaluating and investing in securities in companies similar to
the
Company so that the Investor is capable of evaluating the merits and risks
of
the Investor’s investment in the Company and has the capacity to protect the
Investor’s own interests. The Investor is acquiring the RBC Stock for investment
for the Investor’s own account, not as a nominee or agent, and not with the view
towards, or for resale in connection with, any public sale or distribution
thereof; provided,
however,
that by
making the representations herein, the Investor does not agree to hold any
of
the RBC Stock being purchased by it for any minimum or other specific term
and
reserves the right to dispose of the RBC Stock being purchased by it at any
time
in accordance with or pursuant to a registration statement or an exemption
under
the Securities Act of 1933. The Investor understands that the offer and sale
of
the RBC Stock has not been, and will not be, registered under applicable Federal
or state securities laws, except pursuant to the Investors’ Rights
Agreement.
Section
4.4 No
Reliance.
The
Investor acknowledges and agrees that, in negotiating and entering into this
Agreement, (i) it has relied on no representations made by the Seller, the
Company, or any director, officer, employee, investment banker, legal counsel
or
other representative or agent thereof other than those of the Seller expressly
set forth herein or those of the Company expressly set forth in an agreement
signed by the Company and delivered to the Investor referred to herein, (ii)
it
has been afforded the opportunity to do a due diligence review of the business
and affairs of the Company, including to ask such questions of the Company,
as
it deems appropriate and material to the transactions contemplated hereby and
that its requests for information and questions have been addressed to its
satisfaction and (iii) it has not relied on the Seller, the Company or any
director, officer, employee, investment banker, legal counsel or other
representative or agent thereof with respect to the sufficiency of its due
diligence or the information provided to it and has relied on its own expertise
and judgment in deciding the sufficiency thereof. The Investor understands
and
acknowledges that the Seller has received material non-public information
regarding the Company and/or the RBC Stock, including historical financial
information and certain projections relating to the Company’s business. The
Investor hereby represents and warrants that it is financially sophisticated
with respect to the RBC Stock and the Company; it is capable of evaluating
the
risks associated with a transaction involving the RBC Stock and the Company,
including the risk of transacting on the basis of information that may be
materially different from the information available to the Seller, and that
it
is capable of sustaining any loss that may result from engaging in such a
transaction on such basis without material injury. In light of the foregoing,
the Investor hereby waives any and all claims (including, without limitation,
any and all claims under any applicable securities law) it may have or may
hereafter acquire against the Seller relating to any failure by the Seller
to
disclose to the Investor in connection with the Investor’s purchase of the RBC
Stock pursuant hereto any information which may be considered to be material
non-public information in respect of the Company.
Section
4.5 No
Intermediary.
There
is no investment banker, broker, finder or other intermediary who might be
entitled to any fee or commission upon consummation of the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
the
Investor.
ARTICLE
5
CONDITIONS
TO CLOSING
Section
5.1 Investor
Conditions.
The
obligation of the Investor hereunder to purchase the RBC Stock at the Closing
is
subject to the satisfaction, at or before the Closing Date, of the following
conditions, provided that these conditions are for the Investor’s sole benefit
and may be waived by the Investor at any time in its sole discretion by
providing the Seller with prior written notice thereof:
5.1.1 Representations
and Warranties.
Except
as otherwise contemplated or permitted hereby, (a) the representations and
warranties of the Seller contained in this Agreement or in any certificate
or
document to be delivered to the Investor pursuant hereto shall be deemed to
have
been made again at and as of the Closing Date and shall be true and correct
in
all material respects as of such date, except to the extent that any
representation or warranty is made as of a specified date, in which case such
representation and warranty shall be true and correct in all material respects
as of such date, and (b) the Seller shall have performed and complied in all
material respects with all agreements and conditions required by this Agreement
to be performed or complied with by the Seller prior to or on the Closing Date.
The Investor shall have been furnished with a certificate in customary form
of
an appropriate trustee or director of the Seller, dated as of the Closing Date,
certifying to the effect of this Section 5.1.1.
5.1.2 No
Actions.
No
action, suit or proceeding by any court or governmental or regulatory authority
shall be pending, no investigation by any governmental or regulatory authority
shall have been commenced and no action, suit or proceeding by any governmental
or regulatory authority shall have been threatened against the Investor, the
Seller or the Company or any of their respective principals, trustees, officers
or directors seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any such
transactions or seeking damages in connection with any such
transactions.
5.1.3 Consents.
All
consents, approvals and authorizations of governmental and regulatory
authorities and all filings with and notifications of governmental authorities
and regulatory agencies or other entities which regulate the business of the
Company necessary to the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained
or
effected.
5.1.4 No
Material Adverse Change.
There
shall have been no material adverse change since the date hereof in the
business, assets, financial condition, results of operations or prospects of
the
Company.
5.1.5 [Intentionally
Omitted]
5.1.6 Investors’
Rights Agreement.
The
Company and the Investor shall have entered into a Investors’ Rights Agreement
substantially in a form attached hereto, providing for, among other things,
(a)
the Company’s agreement to nominate certain representatives of the Investor for
election to the Board of Directors of the Company and to facilitate the election
of such representatives, and (b) certain registration rights of the Investor
with respect to the RBC Stock being purchased hereunder.
5.1.7 Opinion
of Counsel.
The
Investor shall have received the legal opinion of the Seller’s counsel, dated
the Closing Date, substantially in a form attached hereto.
5.1.8 Approval
of Documents.
The
form and substance of all certificates, instruments, opinions, and other
documents required to be delivered to the Investor under this Agreement shall
be
reasonably satisfactory in all respects to the Investor and its
counsel.
5.1.9 Company
Resolutions.
The
Investor shall have received a true, complete and accurate copy, as delivered
by
the Company to the Seller, of resolutions passed by the Board of Directors
of
the Company on August 2, 2006 and of resolutions passed by the Special Committee
of the Board of Directors on August 9, 2006, approving the transactions on
the
part of the Company contemplated by this Agreement (including, without
limitation, approving the Company’s execution and delivery of the Investors’
Rights Agreement and, approving for purposes of the New Jersey Shareholders
Protection Act, any “business combination” transaction which may be proposed to
be engaged in between the Investor and the Company at any time or from time
to
time following the Closing, such approval to constitute advance approval of
such
business combination transactions under the terms of such Act); such resolutions
have not been modified, rescinded or amended and remain in full force and
effect.
Section
5.2 Seller’s
Conditions.
The
obligation of the Seller hereunder to sell to the Investor the RBC Stock at
the
Closing is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for the Seller’s
sole benefit and may be waived by the Seller at any time in its sole discretion
by providing the Investor with prior written notice thereof:
5.2.1 Representations
and Warranties.
Except
as otherwise contemplated or permitted hereby, (a) the representations and
warranties of the Investor contained in this Agreement or in any certificate
or
document to be delivered to the Seller by the Investor pursuant hereto shall
be
deemed to have been made again at and as of the Closing Date and shall be true
and correct in all material respects as of such date, except to the extent
that
any representation or warranty is made as of a specified date, in which case
such representation and warranty shall be true and correct as of such date
in
all material respects, and (b) the Investor shall have performed and
complied in all material respects with all agreements and conditions required
by
this Agreement to be performed or complied with by the Investor prior to or
on
the Closing Date. The Seller shall have been furnished with a certificate in
customary form of an authorized signatory of the Investor, dated as of the
Closing Date, certifying to the effect of this Section 5.2.1.
5.2.2 No
Actions.
No
action, suit or proceeding by any court or governmental or regulatory authority
shall be pending, no investigation by any governmental or regulatory authority
shall have been commenced and no action, suit or proceeding by any governmental
or regulatory authority shall have been threatened against the Seller, the
Company or the Investor or any of their respective principals, trustees,
officers or directors seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any such
transactions or seeking damages in connection with any such
transactions.
5.2.3 Consents.
All
consents, approvals and authorizations of governmental and regulatory
authorities and all filings with and notifications of governmental authorities
and regulatory agencies or other entities which regulate the business of the
Company necessary to the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have been obtained
or
effected.
5.2.4 Approval
of Documents.
The
form and substance of all certificates, instruments and other documents required
to be delivered to the Seller under this Agreement shall be reasonably
satisfactory in all respects to the Seller and its counsel.
ARTICLE
6
MISCELLANEOUS
Section
6.1 Survival
of Agreements.
All the
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the RBC Stock pursuant
hereto for, and only for, a period of two (2) years from the Closing Date,
except for Sections 3.1, 3.2, 3.6 and 4.1 which shall survive until the
expiration of the applicable statute of limitations.
Section
6.2 Expenses.
Each
party hereto shall pay its own expenses in connection with the transactions
contemplated hereby.
Section
6.3 Notices.
All
notices, requests, consents, or other communication hereunder shall be in
writing and shall be delivered personally or by courier or mailed by first
class
registered or certified mail to, in the case of the Investor, its address set
forth on the Schedule of Investors attached hereto and, in the case of the
Seller, to The Xxxxxxx Xxxxxx Foundation, Glenpointe Centre East-7th
Floor,
000 Xxxxx X. Xxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000, Facsimile: (000) 000-0000,
Attention: Xxxx Xxxxxxxx, with a copy to Weil, Gotshal and Xxxxxx LLP, 000
Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Facsimile: (000) 000-0000, Attention: Xxxxxx
Xxxxxxxx, Esq.
Section
6.4 Captions
and Section Headings.
As used
herein, captions and section headings are for convenience only and are not
a
part of this Agreement and shall not be used in construing it.
Section
6.5 Entire
Agreement.
This
Agreement and the other documents delivered pursuant hereto and thereto, or
incorporated by reference herein, contain the entire agreement between the
parties hereto concerning the transactions contemplated herein and supersede
all
prior agreements or understandings between the parties hereto relating to the
subject matter hereof.
Section
6.6 Additional
Documents.
The
parties hereto will, at any time after the date hereof, sign, execute and
deliver, or cause others so to do, all such powers of attorney, deeds,
assignments, documents and instruments and do or cause to be done all such
other
acts and deeds as may be necessary or proper to carry out the transactions
contemplated by this Agreement, including, in the case of the Seller, taking
any
and all action necessary to cause the Company’s transfer agent to remove any
reference to the 2002A Agreement on the share certificates to be delivered
to
the Investor representing the RBC Stock.
Section
6.7 Termination;
Amendment.
This
Agreement may be terminated at any time by the Investor or the Seller, by notice
given to the other, if the Closing has not occurred by August 30, 2006 other
than by reason of the breach of this Agreement by the terminating party, and
upon such termination neither the Investor nor the Seller shall have any
obligation or liability hereunder (except for damages arising out of any such
breach). This Agreement may be amended, supplemented or interpreted at any
time,
but only by a written agreement executed by the parties hereto.
Section
6.8 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
Section
6.9 Severability.
If any
one or more of the provisions of this agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remaining provisions of this Agreement shall not be affected thereby. To the
extent permitted by applicable law, each party waives any provision of law
which
renders any provision of this Agreement invalid, illegal or unenforceable in
any
respect.
Section
6.10 Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. No assignment of this Agreement or
of
any rights or obligations hereunder may be made by either the Seller or the
Investor, directly or indirectly (by operation of law or otherwise), without
the
prior written consent of the other parties hereto.
Section
6.11 Governing
Law.
This
Agreement, and all matters arising directly or indirectly hereunder, shall
be
governed by the laws of the State of New York. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting
in
The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert
in
any suit, action or proceeding, any claim that it is not personally subject
to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service
of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.
NY2:\1668168\02\ZR6002!.DOC\71523.0003
IN
WITNESS WHEREOF,
the
Investor and the Seller have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
SELLER:
|
|
|
THE
XXXXXXX XXXXXX FOUNDATION, A NEW JERSEY NONPROFIT
CORPORATION
|
|
|
By:
|
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| /s/ Xxxxx Xxxxxx | |
| Secretary | |
|
INVESTOR:
|
|
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D.
E. Shaw Laminar Portfolios, L.L.C.
|
|
|
By:
|
/s/ Xxxxxx Xxxxxx |
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title:
Authorized Signatory
|
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NY2:\1668168\02\ZR6002!.DOC\71523.0003
SCHEDULE
OF INVESTORS
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Investor
|
Address
and
Facsimile
Number
|
Number
of Acquired Shares
|
Purchase
Price
|
Legal
Representative's
Address
and Facsimile Number
|
|
D.
E. Shaw Laminar Portfolios, L.L.C.
|
c/o
X. X. Xxxx & Co., L.P.
000
Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 10036Telephone: (000) 000-0000
Facsimile:
(000) 000-0000
|
4,399,733
|
$49,716,982.90
|
McCarter&
English, LLP
Four
Gateway Center
000
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000-0000
Attn:
Xxxxx X. Xxxxxxxxx, Esq.
000-000-0000
(direct tel.)
000-000-0000
(direct fax)
xxxxxxxxxx@xxxxxxxx.xxx
|
