EXHIBIT #1
EXHIBIT 5
STOCK PURCHASE AGREEMENT
between
XX. XXXXXXX X. XXXXXXXXX
and
APOLLO HOMES PARTNERS, L.P.,
a Delaware limited partnership
dated as of November 21, 1995
TABLE OF CONTENTS
Page
I. Actions to be Completed at or Prior to the Closing. . . 1
II. Representations and Warranties of Apollo. . . . . . . . 2
III. Representations and Warranties of Xxxxxxxxx . . . . . . 3
IV. Restrictions on Transfer of Retained Shares . . . . . . 4
V. Tag-Along Rights; Bring-Along Rights. . . . . . . . . . 5
VI. Proxy . . . . . . . . . . . . . . . . . . . . . . . . . 7
VII. Acquisition of Additional Securities from the
Company . . . . . . . . . . . . . . . . . . . . . . . . 7
VIII. Definitions . . . . . . . . . . . . . . . . . . . . . . 8
IX. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 12
Exhibit A
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as
of November 21, 1995, between Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"),
and Apollo Homes Partners, L.P., a Delaware limited partnership
("Apollo").
WHEREAS, Apollo owns 5,316,855 shares (the "Apollo
Shares") of common stock, $.01 par value per share ("Common
Stock"), of Xxxxxx, Inc., a New Jersey corporation (the
"Company");
WHEREAS, Apollo desires to sell 2,658,855 Apollo Shares
(the "Purchased Shares") and retain 2,658,000 Apollo Shares (the
"Retained Shares"); and
WHEREAS, Xxxxxxxxx owns 1,542,144 shares of Common
Stock, and Xxxxx X. Xxxxxxxxx owns 65,782 shares of Common Stock,
and Xxxxxxxxx desires to purchase the Purchased Shares;
NOW THEREFORE, in consideration of the foregoing and of
the promises, covenants and conditions contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, the parties
hereto agree as follows:
I. Actions to be Completed at or Prior to the Closing
The closing of the transactions contemplated hereunder
(the "Closing") shall occur as promptly as practicable following
the consummation of any condition to Closing hereunder but in no
event later than November 30, 1995 unless otherwise agreed to by
the parties hereto. The date that the closing actually occurs is
referred to as the "Closing Date." At or prior to the Closing
Apollo shall deliver or cause to be delivered to Xxxxxxxxx the
Purchased Shares by means of (i) inter-participant transfers at
The Depository Trust Company ("DTC") to the account of Xxxxx
Xxxxxx Inc., participant #0418 against payment of $1,329,427.50
to Apollo's custodian that is a participant in DTC in the Same
Day Funds Settlement System operated by DTC or (ii) delivery of a
certificate or certificates evidencing the Purchased Shares,
registered in the name of Apollo or its nominee, accompanied by
written instruments of transfer, duly executed against wire
transfer of immediately available funds in the amount of
$1,329,427.50 to: The Chase Manhattan Bank, N.A., ABA #: 021-
000021, A/C: 000-0-000000, BBK: Chase Manhattan Bank, N.A., A/C:
899-22113, BNF: Apollo Homes Partners, L.P., Attention: Cookie
Xxxxxxxx.
II. Representations and Warranties of Apollo
Apollo hereby represents and warrants to Xxxxxxxxx as
follows:
(a) Apollo is a limited partnership duly organized,
validly existing and in good standing under the laws of the State
of Delaware.
(b) Apollo has all necessary partnership power and
authority to enter into and perform this Agreement and to
consummate the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed
and delivered by Apollo and constitutes a legal, valid and
binding obligation of Apollo, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to or affecting generally
the enforcement of creditors' rights and remedies and by general
principles of equity.
(d) The execution and delivery of this Agreement and
the performance of the obligations imposed hereunder will not
result in a violation of the partnership agreement or other
organic document of Apollo or any order, decree or judgment of
any court or governmental agency having jurisdiction over Apollo
or its properties, will not conflict with, constitute a default
under, or result in the breach of, any contract, agreement or
other instrument to which Apollo is a party or is otherwise bound
and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required
for the execution, delivery and performance of this Agreement by
Apollo, except for such filings as may be required under the
Securities Exchange Act of 1934, as amended.
(e) There is no litigation or proceeding pending or,
to the best knowledge of Apollo, threatened, against Apollo which
would have an effect on the validity or performance of this
Agreement.
(f) Apollo owns the Apollo Shares free and clear of
all liens, claims and other encumbrances (except as may be
imposed under the Securities Act of 1933, as amended, or the
"Blue Sky" laws of any state).
(g) All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by
Apollo directly with Xxxxxxxxx without the intervention of any
Person on behalf of Apollo in such manner as to give rise to any
valid claim by any Person against Xxxxxxxxx for a finder's fee,
brokerage commission or similar payment.
III. Representations and Warranties of Xxxxxxxxx
Xxxxxxxxx hereby represents and warrants to Apollo as
follows:
(a) Xxxxxxxxx has full legal right and power and the
requisite capacity to enter into and perform this Agreement and
to consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and
delivered by Xxxxxxxxx and constitutes a legal, valid and binding
obligation of Xxxxxxxxx, enforceable against him in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to or affecting generally the
enforcement of creditors' rights and remedies and by general
principles of equity.
(c) The execution and delivery of this Agreement and
the performance of the obligations imposed hereunder will not
result in a violation of any order, decree or judgment of any
court or governmental agency having jurisdiction over Xxxxxxxxx
or any of his properties, will not conflict with, constitute a
default under, or result in the breach of, any contract,
agreement or other instrument to which Xxxxxxxxx is a party or is
otherwise bound and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement by Xxxxxxxxx, except for such filings as may be
required under the Securities Exchange Act of 1934, as amended.
(d) There is no litigation or proceeding pending or,
to the best knowledge of Xxxxxxxxx threatened, against Xxxxxxxxx
which would have an effect on the validity or performance of this
Agreement.
(e) Xxxxxxxxx is purchasing the Purchased Shares (and,
if applicable, the Retained Shares) for his own account, solely
for investment and without a view to the distribution thereof.
Xxxxxxxxx is an "accredited investor" within the meaning of Rule
501 under the Securities Act of 1933, as amended. Xxxxxxxxx is
knowledgeable, sophisticated and experienced in business and
financial matters, is capable of evaluating the merits and risks
of the acquisition of the Purchased Shares (and, if applicable,
the Retained Shares) and has previously invested in securities
similar to the Apollo Shares. Xxxxxxxxx is able to bear the
economic risk of his investment in the Purchased Shares and is
able to afford the complete loss of such investment. Xxxxxxxxx
understands that the Company has registered the Apollo Shares
pursuant to a "shelf registration" under the Securities Act of
1933, as amended, but that such registration statement is not
current and that even if made current, the right to sell pursuant
thereto may not be available to Xxxxxxxxx with respect to any
Apollo Shares. Xxxxxxxxx understands further that the Apollo
Shares are not being sold pursuant to such registration statement
or any other registration statement, and, except as described
above, have not been registered under the Securities Act of 1933,
as amended, or the "Blue Sky" laws of any state, and may not be
sold, transferred or otherwise disposed of except pursuant to an
effective and current registration under the Securities Act of
1933, as amended, and applicable "Blue Sky" laws or, if
available, an exemption therefrom.
(f) All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by
Xxxxxxxxx directly with Apollo without the intervention of any
Person on behalf of Xxxxxxxxx in such manner as to give rise to
any valid claim by any Person against Apollo for a finder's fee,
brokerage commission or similar payment.
IV. Restrictions on Transfer of Retained Shares
(a) Prior to the first anniversary of the Closing
Date, each Apollo Stockholder agrees that it will not Transfer
any of the Retained Shares except to a Permitted Transferee who
shall have executed a Joinder Agreement and thereby become a
party to this Agreement, or pursuant to the terms of any tender
offer or an exchange offer for shares of Common Securities, or
pursuant to Article V of this Agreement.
(b) If any of the Apollo Stockholders (the "Seller")
desires to Transfer any Retained Shares (the "Offered Shares") on
or after the first anniversary of the Closing Date, except for
Transfers to a Permitted Transferee who shall have executed a
Joinder Agreement and thereby become a party to this Agreement,
or pursuant to the terms of any tender offer or exchange offer
for shares of Common Securities, or pursuant to Article V of this
Agreement, prior to any such Transfer it shall give written
notice of the proposed Transfer (the "Notice of Intention") to
Xxxxxxxxx, specifying the number of Offered Shares which the
Seller wishes to Transfer, the proposed purchase price (the
"Offer Price") therefor and all other material terms and
conditions of the proposed Transfer.
(c) For a period of 15 days following his receipt of
the Notice of Intention, Xxxxxxxxx shall have an irrevocable
right to purchase all of the Offered Shares at the Offer Price
and on the other terms specified in the Notice of Intention,
exercisable by delivery of a notice (the "Notice of Acceptance")
to the Seller, specifying Xxxxxxxxx'x intent to purchase all of
the Offered Shares at the Offer Price and on the other terms
specified in the Notice of Intention.
(d) The closing of any purchase by Xxxxxxxxx pursuant
to this Article IV shall take place on such date, not later than
15 days after delivery to the Seller of the Notice of Acceptance,
as shall be specified in the Notice of Acceptance. At the
closing of such purchase, the Seller shall either deliver a
certificate or certificates evidencing the Offered Shares being
sold duly endorsed for transfer, or accompanied by written
instruments of transfer duly executed or deliver the Offered
Shares by means of inter-participant transfers at DTC, in each
case against delivery of the Offer Price therefor in immediately
available funds.
(e) If the Notice of Intention has been duly given,
and Xxxxxxxxx does not timely deliver a Notice of Acceptance or
otherwise notifies the Seller that he has determined not to
exercise his option to purchase all of the Offered Shares at the
Offer Price and on the other terms specified in the Notice of
Intention, then the Seller shall have the right, for a period of
45 days from the earlier of (i) the expiration of the 15 days
following the delivery of the Notice of Intention or (ii) the
date on which the Seller receives notice from Xxxxxxxxx that he
has determined not to exercise his option to purchase the Offered
Shares, to sell to any other Person (a "Third Party") the Offered
Shares at a price not less than the Offer Price and on the other
terms no more favorable to the Third Party than those set forth
in the Notice of Intention.
(f) No Third Party, tender offeror or exchange offeror
(unless a Xxxxxxxxx Stockholder) shall have any rights under or
be bound by any provisions of this Agreement and the Offered
Shares in the hands of any such Person shall be free of all the
provisions of this Agreement, including, without limitation, the
provisions of Articles IV, V and VI of this Agreement.
V. Tag-Along Rights; Bring-Along Rights
(a) If any Xxxxxxxxx Stockholder (the "Transferor")
proposes to Transfer any Common Securities ("Transferor Shares")
to any Person (the "Buyer"), other than to a Permitted Transferee
who shall have executed a Joinder Agreement and thereby became a
party to this Agreement then, as a condition to such Transfer,
the Transferor shall cause the Buyer to make a written offer (the
"Tag-Along Offer") to each of the Apollo Stockholders (the
"Offerees") to purchase from each Offeree, at the option of each
Offeree, up to that number of its shares of Common Securities
derived by multiplying the total number of Common Securities then
owned by the Offeree by a fraction, the numerator of which is the
total number of Transferor Shares and the denominator of which is
the total number of Common Securities (including the Transferor
Shares) then owned by the Transferor and all other Xxxxxxxxx
Stockholders, on the same terms and conditions as are applicable
to the Transferor Shares, all of which terms shall be specified
in the Tag-Along Offer. Notwithstanding the foregoing, if any
Offeree does not accept its Tag-Along Offer in full, the other
Offerees shall have the right to sell pursuant to the Tag-Along
Offer up to the number of shares of Common Securities not being
sold by such Offeree in proportion to their percentage ownership
of Common Securities, until all such shares are sold. The
Transferor shall provide a written notice (the "Inclusion
Notice") of the Tag-Along Offer to each Offeree, which may accept
the Tag-Along Offer by sending a written notice of acceptance of
the Tag-Along Offer to the Transferor within 15 days of delivery
of the Inclusion Notice specifying the number of Common
Securities which it wishes to sell (including the number it
wishes to sell in the event any Offeree does not accept the Tag-
Along Offer in full).
The Buyer shall have 45 days, commencing on the
fifteenth day following delivery of the Inclusion Notice, in
which to purchase the shares of Common Securities with respect to
which the Tag-Along Offer was accepted and the Transferor Shares.
The material terms of such sale, including, without limitation,
price and form of consideration, shall be as set forth in the
Inclusion Notice. If at the end of such 45-day period the Buyer
has not completed the purchase of all the Transferor Shares and
all the Offeree's Common Securities proposed to be sold, the
provisions of this Article V(a) shall begin anew with respect to
all such Common Securities.
(b) If the Transferor Shares constitute all of the
Common Securities owned by all Xxxxxxxxx Stockholders, the
proposed Transfer is to a Buyer who is not a Permitted Transferee
of Xxxxxxxxx or an Affiliate or Associate of any Xxxxxxxxx
Stockholder and is in the form of a bona fide sale in which the
only consideration to be paid to the Offerees and the Transferors
per share of Common Security is cash consideration in an amount
not less than (x) $.50 during the first year following the
Closing Date, (y) $.75 during the second year following the
Closing Date and (z) $1.00 during the third year following the
Closing Date and the Transferor requests in the Inclusion Notice
that all Offerees sell their Common Securities pursuant to the
Tag-Along Offer, then the Offerees shall be required to
participate in the Tag-Along Offer in full.
(c) Concurrently with the Transfer of the Transferor
Shares and shares of Common Securities of the Offerees to the
Buyer pursuant to the Tag-Along Offer, the Buyer shall pay and
the Transferor shall cause the Buyer to pay to each Offeree its
respective portion of the sales price of the shares of Common
Securities sold or otherwise disposed of pursuant thereto.
(d) Except for its obligations pursuant to the Tag
Along Offer, no Buyer shall have any rights under or be bound by
any provisions of this Agreement, and any Common Securities in
the hands of a Buyer shall be free of all the provisions of this
Agreement, including, without limitation, the provisions of
Articles IV, V and VI of this Agreement.
(e) Notwithstanding anything to the contrary set forth
herein, in connection with any Transfer of Common Securities by
an Offeree under this Article V, no Offeree shall be required to
make any representations or warranties except to the effect as
set forth in Article II of this Agreement to the extent then
accurate, and no Offeree shall be required to provide any
indemnification or guaranty or act as a surety or in a similar
capacity.
VI. Proxy
The Apollo Stockholders hereby grant to Xxxxxxxxx an
irrevocable proxy coupled with an interest to vote all of the
Retained Shares at any time then owned by them solely for the
election of directors; provided, however, that if any Apollo
Stockholder tenders any Retained Shares pursuant to a tender or
exchange offer or any Xxxxxxxxx Stockholder Transfers any Common
Securities other than to a Permitted Transferee who shall have
executed a Joinder Agreement and become a party to this
Agreement, the number of Retained Shares subject to this proxy
will be decreased by the number of Retained Shares so tendered or
exchanged or Common Securities so Transferred. The provisions of
this Article VI are personal to Xxxxxxxxx and shall not be
enforceable by any other Person, including without limitation,
any successor or assign (by operation of law or otherwise,
including without limitation upon the death or disability of
Xxxxxxxxx), Permitted Transferee, Affiliate or Associate of
Xxxxxxxxx.
VII. Acquisition of Additional Securities from the
Company
(a) Prior to acquiring directly or indirectly, any
securities from the Company (a "Triggering Issuance"), other than
pursuant to a dividend or distribution to all holders of Common
Stock or up to 500,000 shares of Common Securities (subject to
adjustment for any stock splits, stock dividends,
recapitalizations and similar events) granted to Xxxxxxxxx under
any stock option plan adopted and implemented in accordance with
Rule 16b-3 of the Securities Act of 1933, as amended, the
Xxxxxxxxx Stockholders shall offer and shall cause their
respective Affiliates and Associates to offer (the "Offer"), to
each of the Apollo Stockholders an opportunity to purchase that
number of the securities so acquired by the Xxxxxxxxx
Stockholders (the "Xxxxxxxxx Securities") derived by multiplying
the total number of Xxxxxxxxx Securities by a fraction, the
numerator of which is the total number of Common Securities then
owned by such Apollo Stockholder, and the denominator of which is
the total number of Common Securities then owned by all Xxxxxxxxx
Stockholders (without giving affect to the issuance of the
Xxxxxxxxx Securities).
(b) The Xxxxxxxxx Stockholders shall give at least 30
days' prior written notice (the "Issuance Notice") to each Apollo
Stockholder of any proposed Triggering Issuance, which notice
shall disclose in detail all of the proposed terms and conditions
of such Triggering Issuance including the purchase price for the
Xxxxxxxxx Securities and a proposed closing date for the purchase
by the Apollo Stockholders of their portion of the Xxxxxxxxx
Securities. Each Apollo Stockholder will be entitled to purchase
its portion of the Xxxxxxxxx Securities at the same price, on the
same terms, and at the same time as the Xxxxxxxxx Securities are
issued to the Xxxxxxxxx Stockholders pursuant to such Triggering
Issuance by delivery of written notice to Xxxxxxxxx of such
election within 20 days after delivery of the Issuance Notice
(the "Election Notice"); provided, that if more than one type of
security (including any debt or hybrid security) is issued to the
Xxxxxxxxx Stockholders pursuant to such Triggering Issuance, each
Apollo Stockholder shall, if it exercises its rights pursuant to
this Article VII, purchase such securities in the same ratio as
issued to the Xxxxxxxxx Stockholders pursuant to such Triggering
Issuance. If any Apollo Stockholder has elected to purchase any
Xxxxxxxxx Securities, the sale of such securities shall be
consummated on the proposed closing date set forth in the
Issuance Notice or as soon as practical thereafter.
Notwithstanding the foregoing, if any Apollo Stockholder elects
not to accept its rights in full pursuant to this Article VII,
the other Apollo Stockholders shall have the right to purchase
such Apollo Stockholders' portion of Xxxxxxxxx Securities not
being purchased, in proportion to their percentage ownership of
Common Securities until all such Xxxxxxxxx Securities are sold.
VIII. Definitions
(a) The following capitalized terms, when used in this
Agreement, have the respective meanings set forth below:
"Affiliate" means, with respect to any Person, any
other Person that directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with such Person. For the purposes of this definition,
"control" (including, with its correlative meanings, the terms
"controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of securities, by contract or otherwise.
"Apollo Stockholders" means Apollo and its respective
direct and indirect Permitted Transferees, so long as any such
Person shall hold Common Securities.
"Associate" means, with respect to any Person, (i) any
corporation or organization of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities; (ii) any trust
or other estate in which such Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a
similar fiduciary capacity; and (iii) any relative or spouse of
such Person, or any relative of such spouse, who has the same
home as such Person or who is a director or officer of such
Person or any of its parents or subsidiaries.
"Bankruptcy Event" means an event whereby the Company
or a Subsidiary thereof shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or state
bankruptcy, insolvency or similar law, or consent to the entry of
an order for relief in an involuntary case under such law or to
the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company
or a Subsidiary thereof or of any substantial part of its
property, or make an assignment for the benefit of its creditors,
or admit in writing its inability to pay its debts generally as
they become due, or if a decree or order for relief in respect of
the Company or a Subsidiary thereof shall be entered by a court
having jurisdiction in the premises in an involuntary case under
the Federal bankruptcy laws or any other applicable Federal or
state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or a Subsidiary
thereof or of any substantial part of their respective
properties.
"Xxxxxxxxx Stockholder" means Xxxxxxxxx and his
Permitted Transferees, so long as any such Person shall hold
Common Securities.
"Change of Control" means the occurrence in one or more
transactions or events or series of transactions or events of any
of the following: (i) the acquisition by any Person of
securities representing at least a majority of the voting power
of all securities of the Company then outstanding, assuming the
conversion, exchange or exercise of all securities convertible,
exchangeable or exercisable for or into voting securities; (ii)
the sale or transfer of all or substantially all of the
consolidated assets of the Company (whether by sale, transfer,
merger or otherwise); (iii) any merger, consolidation,
recapitalization, reorganization or similar event to which the
Company or any Subsidiary of the Company is a party, except
pursuant to a transaction immediately after which the Apollo
Stockholders and Xxxxxxxxx Stockholders (including their
Affiliates and Associates) continue to have ownership and full
economic interest in the Common Securities in the same proportion
in relation to the other holders of Common Securities as a group
as immediately before such transaction; or (iv) the dissolution
or liquidation of the Company or any Significant Subsidiary of
the Company.
"Common Securities" means the Common Stock, and any
securities issued with respect thereto as a result of any stock
dividend, stock split, reclassification, recapitalization,
reorganization, merger, consolidation or similar event or upon
the conversion, exchange or exercise thereof.
"Joinder Agreement" means a Joinder Agreement in the
Form of Exhibit A hereto.
"Permitted Transferee" means:
(i) as to any Xxxxxxxxx Stockholder, the spouse
or any lineal descendant (including by adoption) of
such Xxxxxxxxx Stockholder, or any revocable trust of
which any Xxxxxxxxx Stockholder is the trustee and
which is established solely for the benefit of any of
the foregoing individuals and whose terms are not
inconsistent with the terms of this Agreement; and
(ii) as to any Apollo Stockholder, any general or
limited partner of Apollo; any Affiliate or Associate
of Apollo or of any general or limited partner of
Apollo; any director, officer, employee or
representative of Apollo, of any general or limited
partner of Apollo, or of any Affiliate or Associate of
Apollo or such general or limited partner; and any
trust, a majority in interest of the beneficiaries of
which, or corporation or partnership, a majority in
interest of the stockholders or limited partners of
which, or partnership, the managing general partner of
which, are (or is) one or more of the Persons
identified in this clause (ii), the spouse of any such
Person and/or such Person's lineal descendants
(including by adoption).
"Person" means an individual, partnership, corporation,
trust, unincorporated organization, joint venture, government (or
agency or political subdivision thereof) or any other entity of
any kind.
"Significant Subsidiary" means, a Subsidiary which
meets any of the following conditions: (i) the Company's and its
other Subsidiaries' investments in and advances to the Subsidiary
exceed 20 percent of the total assets of the Company and its
Subsidiaries consolidated as of the time of determination or the
end of the most recently completed fiscal year; or (ii) the
Company's and its other Subsidiaries' proportionate share of the
total assets (after intercompany eliminations) of the Subsidiary
exceeds 20 percent of the total assets of the Company and its
Subsidiaries consolidated as of the time of determination or the
end of the most recently completed fiscal year; or (iii) the
Company's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle of the
Subsidiary exceeds 20 percent of such income of the Company and
its Subsidiaries consolidated as of the time of determination or
the end of the most recently completed fiscal year.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power
of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if
a partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is
at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person
or Persons shall be allocated a majority of partnership,
association or other business entity gains or losses or shall be
or control the managing director or general partner of such
partnership, association or other business entity.
"Transfer" means, directly or indirectly, any sale,
transfer, assignment, hypothecation, pledge or other disposition
of any Common Securities or any interests therein.
"Vote" means to vote at any regular or special meeting
of shareholders or to execute a written consent in lieu of such a
meeting.
(b) The following terms, when used in this Agreement,
shall have the meanings ascribed thereto in the Section indicated
below:
Term Article
Agreement Preamble
Apollo Preamble
Apollo Shares Preamble
Buyer V(a)
Xxxxxxxxx Preamble
Xxxxxxxxx Securities VII(a)
Closing I
Closing Date I
Common Stock Preamble
Company Preamble
DTC I
Election Notice VII(b)
Inclusion Notice V(a)
Issuance Notice VII(b)
Notice of Acceptance IV(c)
Notice of Intention IV(b)
Offer VII(a)
Offer Price IV(b)
Offerees V(a)
Offered Shares VI(b)
Purchased Shares Preamble
Retained Shares Preamble
Seller IV(b)
Tag-Along Offer V(a)
Third Party IV(e)
Transferor V(a)
Transferor Shares V(a)
Triggering Issuance VII(a)
IX. Miscellaneous
(a) Information. Each of Xxxxxxxxx and Apollo
acknowledges that the other has or may have had access to
material non-public information regarding the Company. Such
material non-public information may include, but would not be
limited to, the respective financial conditions, results of
operations, businesses, properties, assets, liabilities,
management, appraisals, projections, plans and proposals as well
as information regarding creditors of the Company, as the case
may be, and claims or potential claims of their respective
creditors. Each of Xxxxxxxxx and Apollo acknowledges that any
and all non-public information available to the other may be
materially adverse to its own interests and if it were in
possession of some or all of that information it might not enter
into the transaction contemplated by this Agreement. Each of
Xxxxxxxxx and Apollo acknowledges and agrees that it is not
relying upon the other to disclose, and such other party shall
have no obligation to disclose, any of the information referred
to above. Each party has conducted its own investigation, to the
extent it deemed necessary or desirable for the purpose of
entering into the transaction contemplated hereby, regarding the
information described above. Each of Xxxxxxxxx and Apollo agree
that to the fullest extent permitted by applicable law, each
party waives and releases any and all claims either party may
have against the other and their respective Associates and
Affiliates, and the respective officers, directors, employees,
agents, representatives and partners of each of the foregoing by
reason of any nondisclosure of the information described in this
Agreement.
(b) Further Actions; Additional Parties. Each of
Xxxxxxxxx and Apollo agrees to take such actions (whether before
or after the Closing) as reasonably necessary to carry out the
intentions of the parties under this Agreement. Such actions
include, but are not limited to, executing and delivering further
documents, instruments or agreements. Xxxxxxxxx agrees to cause
each direct or indirect Permitted Transferee, Affiliate and
Associate of Xxxxxxxxx'x that acquires Common Securities to
execute and deliver to Apollo a Joinder Agreement and thereby
become party to this Agreement as a Xxxxxxxxx Stockholder.
(c) Entire Agreement; Amendments. This Agreement
constitutes the entire agreement among the parties with respect
to the subject matter hereof and may not be modified or amended
except in a writing executed by the party against whom
enforcement is sought.
(d) Governing Law. The corporate laws of the State of
New Jersey will govern all questions concerning the relative
rights of Xxxxxxxxx and Apollo, each in their capacity as
stockholders of the Company hereunder. All other questions
concerning the construction, validity and interpretation of this
Agreement shall be governed and construed in accordance with the
domestic laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than
the State of New York.
(e) Headings. The headings used in this Agreement are
for convenience only, do not form a part of this Agreement and
shall not affect in any way the meaning or interpretation of this
Agreement.
(f) Counterparts. This Agreement may be executed in
one or more counterparts which when taken together shall
constitute one agreement.
(g) No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and is not for the
benefit of, nor may any provisions hereof be enforced by, any
other Person or entity.
(h) Termination. This Agreement (other than this
Article IX) shall terminate upon the third anniversary of the
Closing Date; provided, however, that in the event, prior to the
third anniversary of the Closing Date, of a Change of Control,
Bankruptcy Event or Transfer by the Xxxxxxxxx Stockholders
(including their Affiliates and Associates) to any Person (other
than to their Permitted Transferees) of an aggregate of 1,000,000
shares of Common Securities (subject to appropriate adjustment
for any stock splits, stock dividends, recapitalizations and
similar events), the provisions of Articles IV, V(b) and VI will
terminate upon the occurrence of such Change of Control,
Bankruptcy Event or Transfer.
(i) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only if delivered personally or mailed (by
registered or certified mail, return receipt requested) or by
reputable overnight courier, fee prepaid to the parties at the
following addresses:
If to Xxxxxxxxx or any Xx. Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxx Stockholder: The Anchorage
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
with a copy to: Xxxxxxx Xxxx
Deutch & Xxxx
000 Xxxxxx
Xxxxxxxxxx, XX 00000
If to Apollo or any Xxxxx X. Xxxxxx
Apollo Stockholder: Xxxxxxx X. Xxxxxx
Apollo Advisors, L.P.
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
with a copy to: Xxx Xxxxx
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Any party from time to time may change its address or other
information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(j) Successors and Assigns, Etc. This Agreement shall
be binding on the parties hereto and their respective Permitted
Transferees to whom Common Securities are Transferred. Except as
set forth above, this Agreement is not assignable by operation of
law or otherwise (including without limitation upon the death or
disability of Xxxxxxxxx). In the event of a Transfer of Common
Securities by any Apollo Stockholder to any Xxxxxxxxx
Stockholder, only the provisions of this Agreement which are
expressly applicable to Xxxxxxxxx Stockholders shall be
applicable to such Xxxxxxxxx Stockholder and to such Common
Securities in the hands of such Xxxxxxxxx Stockholder. In the
event of a Transfer of Common Securities by any Xxxxxxxxx
Stockholder to any Apollo Stockholder, only the provisions of
this Agreement which are expressly applicable to Apollo
Stockholders shall be applicable to such Apollo Stockholder and
to such Common Securities in the hands of such Apollo
Stockholder.
(k) Registration Rights. Apollo hereby assigns to
Xxxxxxxxx, Apollo's rights, if any, with respect to the Purchased
Shares (and, to the extent purchased by Xxxxxxxxx, the Retained
Shares) only, under that certain Registration Rights Agreement
dated May 28, 1993 among the Company and each of the Persons
named on Schedule A thereto. Xxxxxxxxx understands that Apollo
is not making any express or implied representation or warranty
with respect to the Registration Rights Agreement or such
assigment, including, without limitation, as to whether Xxxxxxxxx
will be able to exercise any rights under such Registration
Rights Agreement or enforce any provisions thereof.
(l) Condition. Xxxxxxxxx has informed Apollo that
Xxxxxxxxx is considering requesting the Company to appoint him
and J. Xxxxxx Xxxxxx to the Board of Directors of the Company.
The only condition to the Closing hereunder shall be that
Xxxxxxxxx and J. Xxxxxx Xxxxxx be so appointed. Xxxxxxxxx
understands that whether or not he and J. Xxxxxx Xxxxxx are
appointed to the Board of Directors shall be determined by the
Board of Directors and not by Apollo. Apollo makes no
representation or warranty as to whether Xxxxxxxxx and J. Xxxxxx
Xxxxxx will be appointed to the Board of Directors of the Company
and is not under any obligation to make any effort on behalf of
Xxxxxxxxx and J. Xxxxxx Xxxxxx in regard thereto.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first written above.
APOLLO HOMES PARTNERS, L.P.
By: AIF II, L.P., its general partner
By: APOLLO ADVISORS, L.P.,
its Managing General Partner
By: APOLLO CAPITAL MANAGEMENT, INC.
its General Partner
By:/s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Exhibit 6
Form of Joinder Agreement
[Xxxxxxx X. Xxxxxxxxx]
[Apollo Homes Partners, L.P.]
[Address]
Attention:
Gentlemen:
In consideration of the acquisition by the undersigned
of ______ shares of Common Stock, $.01 par value per share,
[Describe any other security being transferred] of Xxxxxx, Inc.,
a New Jersey corporation (the "Company"), the undersigned
[represents that it is a Permitted Transferee of [Insert name of
transferor] and] agrees that, as of the date written below, [he]
[she] [it] shall become a party to, and a [Xxxxxxxxx Stockholder]
[Apollo Stockholder] as defined in, that certain Stock Purchase
Agreement dated as of November __, 1995, as such agreement may be
or have been amended from time to time (the "Agreement"), between
Xxxxxxx X. Xxxxxxxxx and Apollo Homes Partners, L.P., a Delaware
limited partnership, and shall be fully bound by, and subject to,
all of the covenants, terms and conditions of the Agreement as
though an original party thereto and shall be deemed a [Xxxxxxxxx
Stockholder] [Apollo Stockholder] for all purposes thereof.
Executed as of the day of , .
TRANSFEREE:
Address:
ACKNOWLEDGED AND ACCEPTED:
[XXXXXXX X. XXXXXXXXX]
[APOLLO HOMES PARTNERS, L.P.]
[By: ]
Name:
Title:
