Exhibit 4.1
PURCHASE AGREEMENT
This agreement (the "Agreement") is dated as of January 24, 1997 by and between
Xxxxx & Xxxxx Company (the "Company") and Warburg Pincus Investors, L.P.
("Warburg").
RECITALS
I. On October 22, 1996, pursuant to an agreement dated October 21, 1996
between Warburg and The Prudential Insurance Company of America ("Prudential")
(the "Prudential/Warburg Agreement"), Warburg acquired from Prudential the
following securities of the Company for $23,000,000 (plus accrued interest of
$318,034.72 which was paid by the Company):
(a) $5,000,000 Principal Amount Amended and Restated Revolving Credit Note
due November 1, 1999; (b) $6,500,000 Principal Amount Amended and Restated 9.90%
Senior Note due November 1, 1998; (c) $3,500,000 Principal Amount Amended and
Restated 9.90% Senior Note due November 1, 1998 ((a), (b) and (c) above are
sometimes collectively referred to hereinafter as the "Senior Notes"); (d)
$10,900,834.33 Principal Amount Amended and Restated 10.65% Subordinated
Payment-In-Kind Note due November 1, 2001; (e) $1,520,058.79 Principal Amount
11.65% Subordinated Payment-In-Kind Note, due November 1, 2001; (f) $723,517.03
Principal Amount 11.65% Subordinated Payment-In-Kind Note, due November 1, 2001
((d), (e) and (f) above are sometimes collectively referred to hereinafter as
the "PIK Notes"); (g) 130,233 shares of Junior Convertible Preferred Stock; (h)
Restated Stock Subscription Warrant No. 16 to subscribe for 200,000 shares of
the Company's Common Stock ("Pru Warrant No. 16"); and (i) New Stock
Subscription Warrant No. 17 to subscribe for 150,000 shares of the Company's
Common Stock ("Pru Warrant No. 17") ((h) and (i) above are sometimes
collectively referred to hereinafter as the "Prudential Warrants") issued
pursuant to (i) that certain Senior Note, the Subordinated Note and Revolving
Credit Note Agreement between the Company and Prudential, dated as of November
2, 1992, as amended from time to time (the "Note Agreement") and (ii) that
certain Securities Purchase Agreement between the Company and Prudential, dated
as of November 2, 1992 (the "Securities Purchase Agreement").
II. Also, on October 22, 0000, Xxxxxxx granted an option, through April 16,
1997, for the Company to acquire as an entirety, all of the securities in the
Company purchased by Warburg from Prudential as set forth in (a) through (i)
above (the "First Option") at a purchase price equal to Warburg's cost ($23
million) plus interest in an amount equal to 10% per annum through January 31,
1997 and 12% per annum thereafter through April 16, 1997.
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III. On December 11, 1996, the Company acquired from Warburg (i) the PIK Notes,
which were marked "canceled" and (ii) 130,233 shares of Junior Convertible
Preferred Stock, which were retired, for an aggregate purchase price of
$10,000,000 plus accrued interest of $69,315.07.
IV. Also on December 11, 0000, Xxxxxxx granted an option, through April 16,
1997 (which can be extended through July 15, 1997 under certain circumstances),
for the Company to acquire the Senior Notes as an entirety at a purchase price
equal to Warburg's cost of $13 million plus interest in an amount equal to 10%
per annum on the purchase price through January 31, 1997 and 12% per annum
thereafter through the end of the option term (the "Second Option"), and the
First Option was canceled.
X. Xxxxxxx is the beneficial holder of 10,443,339 shares of the Company's
Common Stock through its ownership of (i) 9,105,981 shares of Common Stock, and
(ii) currently exercisable warrants to purchase an aggregate of 1,337,358 shares
of the Company's Common Stock.
In consideration of the premises, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto desire to
complete the transactions set forth herein in this Agreement and agree as
follows:
1. Subject to the terms and conditions hereof, on the Closing Date (as
defined below): Warburg hereby agrees to sell, transfer and assign to the
Company, without recourse, representation or warranty of any kind except as set
forth herein, and the Company hereby agrees to purchase from Warburg, the Senior
Notes for an aggregate purchase price equal to $13,000,000 plus accrued interest
of $96,428.57 (the "Purchase Price"); The Senior Notes shall be marked
"Canceled".
2. The Closing will take place on January 24, 1997 or such other date
as the parties hereto shall mutually agree (the "Closing Date") and on the
Closing Date the parties shall complete the matters set forth in Paragraph 1
above, and Warburg will deliver the Senior Notes to the Company, together with
duly executed bond powers, payable to the order of the Company, an incumbency
certificate and such other documents as the Company may reasonably request to
terminate all of the Company's obligations under the Note Agreement, against
payment of $13,096,428.57 in immediately available funds to Warburg's account
number, as prescribed by Warburg, and (ii) Warburg shall assign to the Company
all of its right, title and interest in Prudential's warranties and
representations made to Warburg as set forth in the Prudential/Warburg
Agreement.
3. Warburg hereby represents and warrants as of the date hereof and as of
the Closing Date that: (a) Warburg is the sole legal, record and beneficial
owner of the Senior Notes, and to the best of Warburg's knowledge, Warburg has
good title thereto; Warburg has no knowledge of any lien, claim, option or other
encumbrance by any person against the Senior Notes being transferred herein to
the Company; to Warburg's
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knowledge, the representations and warranties of Prudential pursuant to the
Prudential/Warburg Agreement were true and correct at the closing of the
transactions under the Prudential/Warburg Agreement; Warburg did not, prior to
or during the period of time Warburg held the Senior Notes, by any action or
inaction, directly or indirectly, in whole or in part, cause any lien, claim,
option or other encumbrance to occur with respect to the Senior Notes, or any of
them; at the Closing, Warburg will assign all of its right, title and interest
in Prudential's warranties and representations made to Warburg as set forth in
the Prudential/Warburg Agreement to the Company; (b) Warburg has full power,
authority and legal right to sell the Senior Notes; and (c) Warburg has been the
sole beneficial owner of the Senior Notes since October 22, 1996.
4. As of the date hereof and as of the Closing Date, the Company hereby
represents that it has full power, authority and legal right to acquire the
Senior Notes.
5. Warburg hereby represents and warrants that as of the date hereof and,
as of the Closing Date, its ownership of the Company's securities as set forth
in Recital V is true and correct;
6. (a) Warburg hereby irrevocably waives any claims against the Company
or any of its affiliates or representatives based upon any matter arising out of
or related to the transactions contemplated by this Agreement, including non-
disclosure of any information relating to the Company, except with respect to
the representations contained in this Agreement and in the documents delivered
pursuant to this Agreement.
(b) Warburg, on behalf of itself and for all of its affiliates,
hereby waives any and all Defaults or Events of Default (each as defined in the
Note Agreement) that exist or may exist as of the Closing Date under the Note
Agreement.
7. The obligations of each of the Company and Warburg under this
Agreement are subject to and conditioned upon the satisfaction at or prior to
the Closing of each of the following conditions (unless waived by such party in
writing):
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of each other party contained in this Agreement and in any agreements
or instruments to be delivered pursuant hereto shall be true and correct at and
as of the Closing Date; and
(b) PERFORMANCE. Each other party shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it on or prior to the Closing Date, including execution and
delivery of the documents contemplated by this Agreement; and
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(c) NO PROCEEDINGS. No action, suit, investigation or legal or
administrative claim or proceeding shall be pending or threatened before any
court, governmental agency or regulatory authority which may result in the
restraint, prohibition, or the obtaining of damages or other relief in respect
of, or which is related to or arises out of, the consummation of transactions
contemplated by this Agreement.
8. Each party hereto shall execute and deliver all further documents or
instruments reasonably requested by the other party in order to effect the
intent and purposes of this Agreement and obtain the full benefit of this
Agreement.
9. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAWS
PROVISIONS THEREOF AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
10. This Agreement, together with the exhibits hereof, if any, constitutes
the complete agreement of the parties with respect to the subject matter hereof,
and supersedes all prior communications and agreements of the parties with
respect thereto, all of which have become merged and integrated into this
Agreement. This Agreement cannot be amended, modified or waived, except by a
writing executed by each of the parties hereto.
11. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.
its General Partner
By: /s/ Xxxx Xxxxxxxxx
______________________________
Name: Xxxx Xxxxxxxxx
Title: Partner
XXXXX & XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
______________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
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