Exhibit 4.13
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of June 21, 2002 (this
"Agreement"), by and among Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"), the Xxxxxx X.
Xxxxxxxx 1998 Irrevocable Trust Dated 1/27/98 (the "Trust" and, together with
Uhlenhop, the "Sellers"), and Xxx Xxxxxxxx Holdings Inc., a Delaware corporation
formerly named "Xxx Xxxxxxxx Corporation" (in its capacity as issuer of the
Shares (defined below), the "Company" and, in its capacity as the purchaser of
the Shares from the Sellers, "Purchaser").
WHEREAS, each Seller is the owner, beneficially and of record, of the
aggregate amount of shares (the "Shares") of common stock, par value $0.01 per
share, of the Company set forth opposite its name on EXHIBIT A hereto; and
WHEREAS, each Seller wishes to sell and transfer to Purchaser, and
Purchaser wishes to purchase and receive from each Seller, each Seller's Shares
for the consideration and upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement and other valuable consideration, the receipt of
which hereby is acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.01. SALE OF SHARES. Upon the terms and subject to the
satisfaction or waiver by the proper waiving party of the conditions set forth
herein, at the Closing (as hereinafter defined), each Seller shall sell to
Purchaser, and Purchaser shall purchase from each Seller, each Seller's Shares,
free and clear of all liens, personal or otherwise, pledges and encumbrances
consented to or created by such Seller of every kind, character, and description
whatsoever other than under the Pledge and Security Agreement (as defined in
Section 5.03 below), which agreement shall terminate effective as of the closing
pursuant to Section 5.03 below.
Section 1.02. CLOSING. Upon the terms and subject to the conditions
of this Agreement, the sale and purchase of the Shares contemplated by this
Agreement shall be consummated at a closing to be held at the offices of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 a.m., New
York City time, on the 21st day of June 2002, or at such other place, time and
date as the parties hereto shall mutually agree upon. The date and event of the
sale and purchase are, respectively, hereinafter referred to as the "Closing
Date" and the "Closing".
Section 1.03. PURCHASE PRICE. The purchase price to be paid by
Purchaser for the Shares shall be as follows:
(a) with respect to the Shares being purchased by the Company from the
Trust, $1,000,000 (I.E., $1.00 per Share) (the "Trust Purchase Price"); and
(b) with respect to the Shares being purchased by the Company from
Uhlenhop, an amount equal to $1,000,000 (I.E., $1.00 per Share) (the
"Uhlenhop Purchase Price"); PROVIDED, HOWEVER that Uhlenhop hereby
expressly directs the Company to pay to Xxx Xxxxxxxx Corporation (formerly
named "Xxx Xxxxxxxx Press, Inc."), and Xxx Xxxxxxx Corporation hereby
accepts, an amount equal to $797,375.49 (the "Note Repayment Amount") of
the Uhlenhop Purchase Price, which Note Repayment Amount equals the
outstanding principal amount of, and the unpaid and accrued interest
through June 20, 2002 on, that certain Non-Recourse Secured Promissory
Note, dated as of May 22, 1997 (the "Note"), from Uhlenhop to Xxx Xxxxxxxx
Corporation (as successor to the original beneficiary thereof). The
directed payment of the Note Repayment Amount set forth above shall be
applied by the Company and Xxx Xxxxxxxx Corporation, as directed by
Uhlenhop above, to fully discharge and satisfy all of Uhlenhop's
obligations under the Note. The amount equal to the Uhlenhop Purchase Price
less the Note Repayment Amount shall hereinafter sometimes be referred to
as the "Uhlenhop Delivered Purchase Price."
Section 1.04. CLOSING DELIVERIES BY SELLERS. At the Closing, each
Seller shall deliver or cause to be delivered to the Purchaser upon receipt of
the Trust Purchase Price and the Uhlenhop Delivered Purchase Price, as
applicable:
(a) stock certificates evidencing such Seller's shares duly endorsed
in blank, or accompanied by stock powers duly executed in blank, in form
reasonably satisfactory to Purchaser and with all required stock transfer
tax stamps, if any, affixed; and
(b) a receipt for an amount equal to the Trust Purchase Price, in the
case of the Trust, and the Uhlenhop Delivered Purchase Price, with an
acknowledgement that Uhlenhop has directed the Note Repayment Amount be
paid by the Company to Xxx Xxxxxxxx Corporation to satisfy and discharge
the Note, in the case of Uhlenhop.
Section 1.05. CLOSING DELIVERIES BY PURCHASER. At or prior to the
Closing, Purchaser shall deliver or cause to be delivered:
(a) to the Trust, an amount equal to the Trust Purchase Price by wire
transfer of immediately available funds to an account designated in writing
by the Trust; and
(b) to Uhlenhop, (i) an amount equal to the Uhlenhop Delivered
Purchase Price by wire transfer of immediately available funds to an
account designated in writing by Uhlenhop, and (ii) the Note marked
cancelled and satisfied in full.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each
Seller, severally and not jointly, represents and warrants to Purchaser as
follows:
(a) This Agreement has been duly executed and delivered by such
Seller.
(b) Assuming due execution and delivery of this Agreement by
Purchaser, this Agreement constitutes the legal, valid and binding
obligation of such Seller, enforceable against it in accordance with its
terms.
(c) Such Seller has the full legal capacity and authority to execute
and deliver this Agreement and perform its obligations hereunder.
(d) No consent, approval, authorization or filing with any persons or
entities on such Seller's part was or is required in connection with such
Seller's execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for such consents as have been
obtained or would not have a material adverse effect on such Seller's
obligations hereunder or any such consent, approval, authorization or
filing under the Shareholders' Agreement or from the Company or its
affiliates as to which such Seller makes no representation.
(e) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) in the case
of the Trust, conflict with or result in any breach of any provision of the
trust agreement of the Trust, or (ii) result in a violation or breach of,
or constitute a default under, any material agreement to which such Seller
is a party.
(f) Immediately prior to the transactions contemplated hereby, such
Seller was the sole record holder and the sole beneficial owner of, and has
good and valid title to, the Shares set forth opposite such Seller's name
on Schedule I hereto; and such Shares were owned by such Seller at such
time free and clear of any and all liens, pledges, charges, agreements,
options, security interests or other encumbrances or claims of any kind
whatsoever consented to or created by such Seller other than, with respect
to Uhlenhop, those set forth in the Pledge and Security Agreement which
will be terminated effective as of the Closing pursuant to Section 5.3
below.
(g) The Shares being sold by such Seller hereunder constitutes all of
the shares of common stock of the Company beneficially owned by such Seller
or any of its respective affiliates, other than, in the case of Uhlenhop,
employee stock options granted to Uhlenhop by the Company.
(h) Such Seller is an "accredited investor" (as that term is defined
in Rule 501 of Regulation D under the Securities Act of 1933, as amended)
and by reason
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of its business and financial experience, it has such knowledge,
sophistication and experience in business and financial matters as to be
capable of evaluating the merits and risks of, and protecting its own
interests in connection with, the proposed sale of its Shares hereunder.
Such Seller is fully satisfied with the Trust Purchase Price, in the case
of the Trust, or the Uhlenhop Purchase Price, in the case of Uhlenhop, and
such applicable purchase price is all that such Seller is or will be
entitled to receive for the Shares if is selling hereunder.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
severally represents and warrants to each Seller as follows:
(a) Purchaser has all the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of Purchaser.
(c) Assuming due execution and delivery of this Agreement by each
Seller, this Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
(d) No consent, approval, authorization or filing with any persons or
entities on the part of Purchaser was or is required in connection with the
execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(e) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with
or result in any breach of any provision of the Certificate of
Incorporation or By-laws of Purchaser or (ii) result in a violation or
breach of, or constitute a default under, any material agreement to which
Purchaser is a party.
(f) None of DLJ Merchant Banking Partners II, L.P. (including certain
of its "affiliates" (as such term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934) that are stockholders of the Company,
"DLJMB"), the Company or any of its subsidiaries has received in the last
60 days a bona fide written offer or, to DLJMB's, the Company's or any of
its subsidiaries' knowledge, any other offer, that would result in (i) a
"Change in Control" (as such term is defined in the indenture governing Xxx
Xxxxxxxx Corporation's 10-1/4% Senior Notes due 2009) pursuant to which the
stockholders of the Company would receive in excess of $1.00 per share for
their shares of common stock of the Company, or (ii) the receipt by the
Company or any other party for any of the Company's common stock in excess
of $1.00 per share.
Section 2.03. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in this Article II shall survive the
Closing Date
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and shall not be affected by any investigation, verification or approval by any
party hereto or by anyone on behalf of any such parties.
ARTICLE III
CONDITIONS
Section 3.01. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser under this Agreement are, at the option of Purchaser, subject to
the condition that, at or prior to the Closing Date:
(a) This Agreement shall have been signed by each Seller obligating
and committing it to sell to Purchaser the Shares to be sold to Purchaser
hereunder, and each Seller shall, at the Closing, deliver to Purchaser all
of the Shares to be sold by it and each Seller shall in addition fully
comply with the terms and provisions hereof.
(b) An amendment to the Shareholders' Agreement, which, among other
things, deletes Article II from the Shareholders' Agreement, shall have
been signed by each Seller, DLJMB and ZSVH II, L.P., and such Amendment
shall be effective at or before the Closing Date.
(c) All of the terms, covenants and conditions of this Agreement to be
complied with or performed by each Seller at or before the Closing Date
shall have been duly complied with or performed.
(d) Uhlenhop shall have executed an Amended and Restated Employment
Agreement with the Company and Xxx Xxxxxxxx Corporation and an Amendment
No. 3 to his Special Stock Option Grant Agreement, each on terms reasonably
satisfactory to the Company and Xxx Xxxxxxxx Corporation.
(e) The representations and warranties of each Seller set forth in
Section 2.01 hereof shall be true in all material respects on and as of the
Closing Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date. The provisions of
this paragraph (e) shall be self-executing, and each Seller, by having
closed the sale of its stock hereunder, shall be deemed conclusively to
have certified at Closing that all such representations and warranties were
true in all material respects on and as of the Closing Date.
Section 3.02. CONDITIONS TO OBLIGATIONS OF SELLERS. The obligations
of each Seller under this Agreement to Purchaser are, at the option of each such
Seller, subject to the condition that, at or before the Closing Date:
(a) All the terms, conditions and covenants of this Agreement to be
complied with and performed by Purchaser at or before the Closing Date
shall have been duly complied with and performed, including the payment of
the
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consideration to be paid by Purchaser to such Seller as contemplated by
Section 1.04 hereof.
(b) Purchaser shall have delivered to each such Seller on or prior to
the Closing Date an executed copy of this Agreement.
(c) The Company and Xxx Xxxxxxxx Corporation shall have executed an
Amended and Restated Employment Agreement with Uhlenhop on terms reasonably
satisfactory to Uhlenhop; and Holdings shall have executed an Amendment No.
3 to Uhlenhop's Special Stock Option Grant Agreement on terms reasonably
satisfactory to Uhlenhop.
(d) The representations and warranties of Purchaser set forth in
Section 2.02 hereof shall be true in all material respects on and as of the
Closing Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date. The provisions of
this paragraph (d) shall be self-executing, and Purchaser, by having closed
the sale of stock hereunder, shall be deemed conclusively to have certified
at Closing that all such representatives and warranties are true in all
material respects on and as of the Closing Date.
ARTICLE IV
EXPENSES
Section 4.01. EXPENSES. Each Seller shall pay its own expenses and
costs, including, without limitation, all counsel fees and transfer taxes, and
Purchaser shall pay its own expenses and costs in connection with this Agreement
and the transactions contemplated hereby.
ARTICLE V
MISCELLANEOUS
Section 5.01. MUTUAL RELEASES.
(a) Each of Uhlenhop and the Trust for itself and its respective
affiliates, heirs, successors and assigns, hereby irrevocably and
unconditionally releases, acquits, exonerates and forever discharges each of the
Company and DLJMB, and each of their respective members, officers, directors,
managers, employees, affiliates, shareholders, partners, agents,
representatives, or any of them, from any and all claims, liabilities, causes of
action, demands, controversies, suits, damages, expenses, sums of money and/or
judgments of any kind or nature, both legal and equitable, whether known or
unknown, suspected or unsuspected, or accrued or unaccrued, which are in any way
connected with or in respect of, or which may have arisen or may hereafter arise
between the parties under, this Agreement (including, without limitation, in
connection with sale
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and purchase of the Shares hereunder), except, as contemplated by Section 2.03
hereof, with respect to the representations and warranties contained in Section
2.02 hereof.
(b) Each of the Company, in its own capacity and as Purchaser, and
DLJMB for itself and its respective affiliates, heirs, successors and assigns,
hereby irrevocably and unconditionally releases, acquits, exonerates and forever
discharges each of Uhlenhop and the Trust, and each of their respective members,
officers, directors, managers, employees, affiliates, shareholders, partners,
agents, representatives, or any of them, from any and all claims, liabilities,
causes of action, demands, controversies, suits, damages, expenses, sums of
money and/or judgments of any kind or nature, both legal and equitable, whether
known or unknown, suspected or unsuspected, or accrued or unaccrued, which are
in any way connected with or in respect of, or which may have arisen or may
hereafter arise between the parties under, this Agreement (including, without
limitation, in connection with sale and purchase of the Shares hereunder),
except (i) with respect to the representations by the Sellers in Section 1.01
that the Shares are being delivered free and clear of liens, ETC., or (ii) as
contemplated by Section 2.03 hereof, with respect to the representations of the
Sellers set forth in Section 2.01(a) hereof.
Section 5.02. SATISFACTION OF NOTE. Immediately upon the
consummation of the transactions contemplated hereby, and without any further
action required by any of the parties hereto, the Note shall be deemed to be
fully satisfied and paid in full by Uhlenhop, and discharged by the Company, and
such Note shall have no further force or effect.
Section 5.03. PLEDGE AND SECURITY AGREEMENT. Immediately upon the
consummation of the transactions contemplated hereby, that certain Pledge and
Security Agreement, dated as of May 22, 1997 (as the same may have been amended,
the "Pledge and Security Agreement"), between Uhlenhop and Xxx Xxxxxxxx
Corporation (formerly named Xxx Xxxxxxxx Press, Inc. and the successor to the
original beneficiary thereunder) shall be terminated in all respects and have no
further force or effect and all security interests and liens granted thereunder
shall be released.
Section 5.04. SUCCESSORS AND ASSIGNS. All of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
Section 5.05. ENTIRE AGREEMENT. This Agreement constitutes the
complete understanding and agreement among the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought.
Section 5.06. APPROVALS AND CONSENTS. Each Seller hereby agrees, for
itself, its heirs and legal representative(s), at any time and from time to time
after the Closing Date, upon request of the Company, as Purchaser, to execute
and deliver such
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further instruments and documents, to take such other actions as may be
reasonably required to more effectively carry out the intent and purposes of
this Agreement and the transactions contemplated hereby.
Section 5.07. NOTICES. All notices, requests, demands and other
communications which are required or may be given hereunder shall be in writing
and shall be deemed to have been duly given to a party if delivered personally
or mailed by certified or registered mail, return receipt requested, postage
prepaid, or if given by telex or other telegraphic means, to such party at his
or its address set forth on EXHIBIT B hereto. Any such notice shall for all
purposes of this Agreement be deemed to have been given, and received by the
addressee, on the date of such personal delivery or telex or telegraphic notice
or five (5) days after any such mailing thereof.
Section 5.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 5.09. SEVERABILITY. If any provision of this Agreement or
the application of any such provision to any person or circumstances shall be
held invalid by a court of competent jurisdiction, the remainder of this
Agreement, including the remainder of the provision held invalid, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
Section 5.10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
Section 5.11. HEADINGS. All section headings herein are for
convenience of reference only and are not part of this Agreement, and no
construction or inference shall be derived therefrom.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above by their respective officers
thereunto duly authorized.
SELLER:
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
SELLER:
Xxxxxx X. Xxxxxxxx
1998 Irrevocable Trust, dated
January 27, 1998
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Trustee
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Trustee
PURCHASER:
XXX XXXXXXXX HOLDINGS INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Agreed and Acknowledged for the purposes
of Sections 1.03(b), 1.05(b)(ii), 5.02 and
5.03
XXX XXXXXXXX CORPORATION
(formerly named Xxx Xxxxxxxx Press, Inc.)
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
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Agreed and Acknowledged for purposes of
Sections 2.02(e) and 5.01 hereof only:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
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EXHIBIT A
===================================================================
STOCKHOLDER SHARES OF COMMON STOCK
===================================================================
Xxxxxx X. Xxxxxxxx 1,000,000
-------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx Irrevocable 1,000,000
Trust Dated 1/27/98
===================================================================
TOTAL 2,000,000
===================================================================
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EXHIBIT B
ADDRESS OF EACH SELLER:
Uhlenhop: Xxxxxx X. Xxxxxxxx
0 Xxxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Trust: Xxxxxx X. Xxxxxxxx Irrevocable Trust
0 Xxxxxxxxx
Xx. Xxxxx, XX 00000
ADDRESS OF THE COMPANY, AS PURCHASER:
Xxx Xxxxxxxx Holdings Inc.
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: Chief Financial Officer
ADDRESS OF DLJMB:
DLJ Merchant Banking Partners II, Inc.
00 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxx
Xxxxx X. Xxxxxxxxxxx
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