EXHIBIT 4.
STOCK PURCHASE AGREEMENT
BOSFIELD, L.L.C., an Indiana limited liability company ("Purchaser"), and
THE EMPLOYEE STOCK OWNERSHIP TRUST OF THE X.X. XXXXXXX COMPANY ("Seller") agree
as follows:
1. BASIS OF TRANSACTION. Prior to July 15, 1997, Purchaser discussed with
Seller the potential sale by Seller to Purchaser of the Sale Shares (as defined
in section 2 hereof). Seller requested that Purchaser make an offer or bid for
the Sale Shares. Pursuant to such request, an offer or bid in the form of a
"Purchase Agreement" dated July 15, 1997 was made by Purchaser. Such offer
contained an expiration date of August 14, 1997 which was subsequently extended
at the request of the Seller to September 15, 1997 and then to September 30,
1997. Seller requested a different offer or bid from Purchaser and Purchaser
made the bid or offer reflected in this Agreement. The trustee of Seller, after
determining that the sale of the Sale Shares to Purchaser in accordance with the
terms and provisions of this Agreement would be in the best interests of the
participants and beneficiaries of Seller, accepted Purchaser's bid, all of which
is reflected in this Agreement.
2. PURCHASE AND SALE. Seller agrees to sell to Purchaser, and Purchaser
agrees to buy from Seller, 1,390,233 shares of the common stock, subject to
adjustment to give effect to any distribution of such shares to participants of
Seller that Seller is required to make under Seller's trust instrument or other
documents under which Seller operates prior to Closing (as defined in Section 4
hereof) (the "Sale Shares"), of X.X. Xxxxxxx Company (the "Issuer") on the terms
and subject to the conditions in this Agreement, in exchange for payment by
Purchaser to Seller of the Purchase Price (as defined in Section 3 hereof).
3. PURCHASE PRICE. The purchase price for the Sale Shares is $59.00 per
Sale Share, for an aggregate purchase price (the "Purchase Price") of
$82,023,747 (subject to adjustment to give effect to an adjustment as set forth
in Section 2 hereof). The Purchase Price shall be paid by Purchaser to Seller
in immediately available funds at the Closing (as defined in Section 4 hereof).
4. CLOSING.
(a) The closing (the "Closing") of the sale and purchase of the Sale Shares
shall take place on the date that is one business day following the satisfaction
or waiver of the conditions contained in Sections 8 and 9 hereof and at such
location as the parties may mutually agree in writing, or at such other time
that the parties may mutually agree in writing; provided, however, if the
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Closing shall not have occurred within 90 days of the date hereof, this
Agreement shall terminate on such date, unless such date is extended by mutual
written agreement of the parties hereto. The date of the Closing is herein
referred to as the "Closing Date."
(b) At the Closing:
(i) Seller shall deliver to Purchaser the certificate or certificates
for the Sale Shares duly endorsed for transfer to Purchase, with
all requisite stock transfer tax stamps, if any, affixed to each
such certificate, free of any lien, claim or restriction of any
kind and transferring good, valid title to the Sale Shares to
Purchaser, except as specified herein.
(ii) Purchaser shall deliver to Seller the Purchase Price in accordance
with Section 3 hereof.
(iii) Each of the parties hereto will cooperate with the other and
execute and deliver to the other parties hereto such other
instruments and documents and take such other actions as may be
reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes
of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows; provided, however, all of the following
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representations and warranties of Seller are qualified by and subject to (i) the
terms and provisions of Seller's trust instrument and more particularly Section
6.12 thereof, (ii) the effects of that certain rights agreement governing the
Issuer's "poison pill," and (iii) the effects of any state "anti-takeover" laws
applicable to the transactions contemplated hereby:
(a) Seller has the power, authority and legal right to execute, deliver and
perform this Agreement. This Agreement has been, and the other agreements,
documents and instruments delivered by Seller in accordance with the provisions
hereof (the "Seller's Documents") have been, duly executed and delivered on
behalf of Seller, and each of this Agreement and the Seller's Documents
constitutes the legal, valid and binding obligations of Seller, enforceable
against Seller in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Seller
does not and will not violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any person under, (i)
the trust instrument and other documents pursuant to which Seller exists and
operates, (ii) any existing law, ordinance, or governmental rule or regulation
to which Seller is subject, (iii) any judgment, order, writ, injunction, decree
or award of any court, arbitrator or governmental or regulatory official, body
or authority which is applicable to Seller, or (iv) any mortgage, indenture,
agreement, contract, commitment, lease, plan, consent, or other instrument,
document or understanding, oral or written, to which Seller is a party, by which
Seller may be bound or affected, or give any party with rights thereunder the
right to terminate, modify, accelerate or otherwise change the existing rights
or obligations of Seller thereunder. Except as aforesaid and as specifically
referred to in this Agreement, no authorization, approval, consent of, and no
registration or filing with, any governmental or
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regulatory official, body or authority is required in connection with the
execution, delivery or performance of this Agreement by Seller, other than
pursuant to the HSR Act (as defined in Section 8(e) hereof).
(c) No litigation or claim, including any arbitration, investigation or
other proceeding of or before any court, arbitrator or governmental or
regulatory official, body or authority is pending, asserted or threatened
against Seller which relates to the transactions contemplated by this Agreement.
Seller is not a party to or subject to the provisions of any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which may adversely affect the Issuer or
its assets or the transactions contemplated hereby.
(d) Seller has good title to the Sale Shares, free of any lien, claim,
encumbrance or restriction, except for restrictions imposed by applicable
federal and state securities laws, and Seller is entitled to sell the Sale
Shares to Purchaser as provided in this Agreement. No other person has any
right or option to acquire any of the Sale Shares owned by Seller, other than
rights of participants of Seller to receive certain distributions of Sale Shares
under Seller's trust instruments or other documents under which Seller operates.
(e) No agent, broker, investment banker or other person or firm acting on
behalf of or under the authority of Seller is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a limited liability company, duly organized, and validly
existing and in good standing under the laws of the State of Indiana. Purchaser
has the power, authority and legal right to execute, deliver and perform this
Agreement. This Agreement has been, and the other agreements, documents and
instruments delivered by Purchaser in accordance with the provisions hereof (the
"Purchaser's Documents") have been, duly executed and delivered on behalf of
Purchaser, and each of this Agreement and the Purchaser's Documents constitutes
the legal, valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Purchaser
does not and will not violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any person under, (i)
the documents pursuant to which Purchaser exists and operates, (ii) any existing
law, ordinance, or governmental rule or regulation to which Purchaser is
subject, (iii) any judgment, order, writ, injunction, decree or award of any
court, arbitrator or governmental or regulatory official, body or authority
which is applicable to Purchaser, or (iv) any mortgage, indenture, agreement,
contract, commitment, lease, plan,
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consent, or other instrument, document or understanding, oral or written, to
which Purchaser is a party, by which Purchaser may be bound or affected, or give
any party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Purchaser thereunder.
Except as aforesaid and as specifically referred to in this Agreement, no
authorization, approval, consent of, and no registration or filing with, any
governmental or regulatory official, body or authority is required in connection
with the execution, delivery or performance of this Agreement by Purchaser
(other than pursuant to the HSR Act).
(c) No litigation or claim, including any arbitration investigation or
other proceeding of or before any court, arbitrator or governmental or
regulatory official, body or authority is pending, asserted or threatened
against Purchaser which relates to the transactions contemplated by this
Agreement.
(d) No agent, broker, investment banker or other person or firm acting on
behalf of or under the authority of Purchase is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transactions contemplated by this Agreement.
(e) In connection with the acquisition of the Sale Shares, Purchaser
acknowledges and agrees that (i) the sale of the Sale Shares under this
Agreement has not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or the securities laws of any state; (ii) the Sale Shares will
be "restricted securities" as defined by Rule 144 promulgated pursuant to the
1933 Act and that a new holding period will begin for purposes of Rule 144;
(iii) the Sale Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the 1933 Act and applicable state securities laws,
or is exempt from such registration; and (iv) the Sale Shares will bear a
restrictive legend to that effect. Purchaser further represents that (i) the
Sale Shares are being acquired for Purchaser's own account, for investment and
without any present view toward distribution thereof to any other person or
entity; (ii) Purchaser is an "accredited investor" as defined in Rule 501(a) of
Regulation D promulgated pursuant to the 1933 Act; (iii) Purchaser will not sell
or otherwise dispose of the Sale Shares except in compliance with the
registration requirements or exemption provisions under the 1933 Act and
applicable state securities laws, the rules and regulations thereunder, and as
otherwise set forth by the Securities and Exchange Commission or any comparable
state authority; (iv) Purchaser has knowledge and experience in financial and
business matters and is capable of evaluating the risks and merits of an
investment in the Sale Shares; (v) Purchaser has investigated and is familiar
with the affairs, financial condition and prospects of the Issuer, and has been
given sufficient access to and has acquired sufficient information about the
Issuer to reach an informed and knowledgeable decision to acquire the Sale
Shares; and (vi) Purchaser is able to bear the economic risks of such an
investment.
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7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS; REPRESENTATION
DISCLAIMER.
(a) All representations, warranties, covenants and agreements made by the
parties in this Agreement shall survive the Closing. Notwithstanding any
investigation or audit conducted before or after the Closing or the decision of
any party to complete the Closing, each party shall be entitled to rely upon the
representations and warranties set forth herein.
(b) Purchaser shall not be deemed to have made to Seller any representation
or warranty other than as expressly made by Purchaser in this Agreement. Seller
shall not be deemed to have made to Purchaser any representation or warranty
other than as expressly made by Seller in this Agreement. Without limiting the
generality of the foregoing, and notwithstanding any otherwise express
representations and warranties made by Seller in Section 5 hereof, Seller makes
no representation or warranty to Purchaser with respect to:
(i) any projections, estimates or budgets heretofore delivered to or
made available to Purchaser with respect to future revenues,
expenses or expenditures or future results of operations of the
Issuer and/or its subsidiaries; or
(ii) except as expressly covered by a representation and warranty
contained in Section 5 hereof, any other information or documents
(financial or otherwise) made available to Purchaser or Purchaser's
counsel, accountants or advisers with respect to the Issuer.
8. CONDITIONS TO CLOSING BY SELLER. The obligations of Seller under this
Agreement are subject to the fulfillment of the following conditions precedent
prior to the date and time of Closing; provided, however, that Seller may
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conditionally or unconditionally waive one or more of these conditions:
(a) Each of the representations and warranties of Purchaser contained in
this Agreement shall be true as of the date of the Closing.
(b) Purchaser shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Purchaser under this Agreement.
(c) All of the documents and information furnished by Purchaser to Seller
as provided in this Agreement shall be in the form and substance satisfactory to
Seller.
(d) No order, decree or ruling of any governmental authority or court shall
have been entered, and no governmental or other action, suit, claim,
investigation or proceeding shall be pending or threatened, challenging the
legality, validity or propriety of, or otherwise relating to, the transactions
contemplated by this Agreement.
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(e) Either (i) Seller shall have determined to its reasonable satisfaction
that no filing is required with respect to the transactions contemplated by this
Agreement under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) filings shall have been made under the HSR Act and
all applicable waiting periods under the HSR Act shall have expired or been the
subject of early termination, or (iii) if filings are required, the failure of
filings to be made shall have no adverse effect on Seller.
(f) Within ten (10) days after the date of this Agreement, Purchaser shall
have demonstrated to Seller's reasonable satisfaction that Purchaser has the
financial capability to perform its obligations under this Agreement.
(g) The Board of Directors of the Issuer shall have approved the
transactions contemplated under this Agreement and approved any plan and/or
trust amendments necessary to implement such transaction without affecting
qualification of Seller and the related plan under Sections 401 and 501 of the
Internal Revenue Code.
(h) Seller shall have determined to its satisfaction that the contemplated
acquisition of the Sale Shares by Purchaser will not result in Seller having any
liability under Section 16(b) of the Securities Exchange Act of 1934.
9. CONDITIONS TO CLOSING BY PURCHASER. The obligations of Purchaser
under this Agreement are subject to the fulfillment of the following conditions
precedent prior to the date and time of Closing; provided, however, that
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Purchaser may conditionally or unconditionally waive one or more of these
conditions:
(a) Each of the representations and warranties of Seller contained in this
Agreement shall be true as of the date of the Closing.
(b) Seller shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Seller under this Agreement.
(c) All of the documents and information furnished by Seller to Purchaser
as provided in this Agreement shall be in the form and substance satisfactory to
Purchaser.
(d) No order, decree or ruling of any governmental authority or court shall
have been entered, and no governmental or other action, suit, claim,
investigation or proceeding shall be pending or threatened, challenging the
legality, validity or propriety of, or otherwise relating to, the transactions
contemplated by this Agreement.
(e) Either (i) Purchaser shall have determined to its reasonable
satisfaction that no filing is required with respect to the transactions
contemplated by this Agreement under the HSR Act or (ii) filings shall have been
made under the HSR Act and all applicable waiting periods under the HSR Act
shall have expired or been the subject of early termination.
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(f) Purchaser shall have satisfied itself in its reasonable discretion that
the rights under the Issuer's "poison pill" rights agreement will not be
exercisable, triggered or otherwise effective as a result of the transactions
contemplated by this Agreement.
10. CONFIDENTIALITY. The parties agree that (i) no public release or
announcement concerning the transactions contemplated hereby shall be issued by
any party and (ii) neither party will disclose the existence of this Agreement
or the intention of such party to consummate the transactions contemplated
hereby to any other party prior to the Closing, without in either case the prior
written consent of the other party, except as required by law or applicable
regulations or Seller's trust instrument.
11. TERMINATION RIGHT. This Agreement may be terminated at any time prior
to Closing by Seller if the trustee of Seller becomes aware of any facts which,
due to the fiduciary obligations of trustee of Seller, the trustee of Seller
determines that the transactions contemplated hereby are not in the best
interests of Seller's participants; provided, however, that (i) if the reason
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for any such determination by the trustee of Seller is the receipt by Seller of
a bona fide higher offer for sale of the Sale Shares, Seller shall give
Purchaser at least three (3) business days' prior notice of its intention to
terminate this Agreement pursuant to this Section 11 (along with a description
of all relevant terms and conditions of such higher offer), during which period
Purchaser shall have the opportunity (but not the obligation) to propose
amendments or modifications to the terms of this Agreement and (ii) if this
Agreement is terminated pursuant to this Section 11, Seller shall pay to
Purchaser a fee equal to $2,000,000.00 in cash within 90 days of such
termination.
12. MISCELLANEOUS.
(a) Seller shall pay all documentary and other transfer taxes, if any, due
as a result of the sale of the Sale Shares in accordance herewith. Except as
set forth in this Section 12(a), each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby. This Section 12(a) shall
survive any termination of this Agreement.
(b) This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby. It shall not be
amended or modified except by written instrument duly executed by each of the
parties hereto. Any and all previous agreements and understandings between or
among the parties regarding the subject matter hereof, whether written or oral,
are superseded by this Agreement.
(c) This Agreement may not be assigned prior to the Closing by any party
hereto without the prior written consent of the other parties. Subject to the
foregoing, all of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of Seller and Purchaser.
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(d) Any term or provision of this Agreement may be waived at any time by
the party entitled to the benefit thereof by a written instrument duly executed
by such party.
(e) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of Indiana.
(f) The representations, warranties, covenants and agreements contained in
this Agreement are for the sole benefit of the parties hereto and their heirs,
executors, administrators, legal representatives, successors and assigns, and
they shall not be construed as conferring any rights on any other persons.
(g) Any provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(h) Each of the parties hereto shall use all reasonable efforts to take, or
cause to be taken, any appropriate action under the HSR Act with respect to the
transactions contemplated hereby, including without limitation promptly making
their respective filings, if any, which are required under the HSR Act.
(i) Seller desires to acquire, prior to the conveyance of the Sale Shares
to Purchaser, a minimum of 700,000 additional shares of the Issuer's common
stock ("Additional Shares"). Purchaser shall provide reasonable assistance
(including, but not limited to, transactions designed in an effort to comply
with Section 1042 of the Internal Revenue Code) to Seller in Seller's efforts to
acquire the Additional Shares; provided, however, the inability of Seller to
acquire the Additional Shares in a timely fashion shall not affect in any way
the right of Purchaser to have the Sale Shares conveyed to Purchaser in
accordance with the terms of this Agreement. Included in Purchaser's assistance
to Seller shall be the obligation to provide Seller with a loan sufficient to
acquire the Additional Shares but in no case shall the loan exceed the Purchase
Price nor shall Purchaser be obligated to make such loan unless Purchaser knows
that it is acquiring the Sale Shares. The interest rate for such loan shall be
at a rate of 5% per annum and repayment of the loan and interest must occur
within 10 days after the loan is made or on the date of Closing, whichever
occurs first.
(j) This Agreement may be executed in any number of counterparts and any
party hereto may execute any such counterpart, each of which when executed and
delivered shall be deemed to be an original and all of which counterparts taken
together shall constitute but one and the same instrument.
(k) Purchaser will use its best efforts to prevent Seller from being
terminated without the prior consent of the trustee of Seller.
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(l) Purchaser and the trustee of Seller shall address, as appropriate, the
concerns of the current shareholders of Issuer, the employees and management of
Issuer and professional organizations employed by the Issuer in a fair and
forthright manner.
(m) The covenants, obligations and undertakings contained in this Agreement
shall be solely for the benefit of the parties to this Agreement and no other
person (including, but not limited to, beneficiaries and participants of Seller)
shall have the right to enforce any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of September 24, 1997.
THE EMPLOYEE STOCK OWNERSHIP
TRUST OF THE X. X. XXXXXXX
COMPANY
By: INTRUST Bank, N.A.
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As Trustee
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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BOSFIELD, L.L.C.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Member
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