Exhibit 10.5
OPTION PURCHASE AGREEMENT
This OPTION PURCHASE AGREEMENT dated effective as of December
30, 1997 by and between Xxxx-Xxxxxx Corporation, a Wisconsin corporation
(the "Company") and Massachusetts Mutual Life Insurance Company, a
Massachusetts corporation, MassMutual Participation Investors and
MassMutual Corporate Investors (collectively the "Seller"),
WITNESSETH
WHEREAS, the Seller is the holder of certain options entitling
the holder thereof to purchase a total of 752,478 duly authorized, validly
issued and fully paid shares of the Company's common stock, at a purchase
price of $5.98 per share and represented by certain Xxxx-Xxxxxx
Corporation Certificates dated as of September 3, 1996 and May 30, 1997
(the "Options"), and
WHEREAS, the Company desires to acquire the Options and the
Seller desires to sell the Options in accordance with the terms,
conditions and provisions set forth herein.
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth herein, and other fair and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties agree as follows:
1. Purchase and Sale of the Options.
Terms. Subject to the terms and conditions of this Agreement,
the Seller hereby sells the Options to the Company, and the Company hereby
purchases the Options from the Seller, for an aggregate purchase price of
$1,000,000 (One Million Dollars). Payment of the aggregate purchase price
shall be made by the Company in immediately available funds and the Seller
will thereafter promptly deliver the Options to the Company duly endorsed
in form to be transferred to the Company. Such payment and delivery shall
occur as soon as possible, but in no event later than January 30, 1998.
2. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Company as follows:
(a) Corporate Organization and Authority. The Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts, with corporate power to own
its properties and to conduct its business as now conducted. The Seller
has full legal right, power and authority to enter into and perform this
Agreement.
(b) Authorization. The execution and delivery of this
Agreement by the Seller and the consummation by Seller of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of the Seller.
(c) Title. The Seller has good and marketable title to the
Options, with full power to deliver the Options hereunder. Upon payment
for the Options pursuant to this Agreement, the Company will receive good
and marketable title to the Options, free and clear of all liens,
encumbrances, claims, security interests and defects.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Seller as follows:
(a) Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Wisconsin, with corporate power to own its properties and to
conduct its business as now conducted. The Company has full legal right,
power and authority to enter into and perform this Agreement.
(b) Authorization. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement
constitutes a legal, valid and binding agreement of the Company.
(c) No Conflicts. Neither the execution and delivery of this
Agreement by the Company, nor the consummation of the transactions
contemplated hereby, will violate or conflict with (i) any provisions of
the Certificate of Incorporation or Bylaws of the Company, (ii) any
agreement or instrument to which the Company is a party or by which the
Company or any of its assets or properties are subject or (iii) any law,
rule, regulation, writ, judgment, injunction, decree, determination, award
or other order of any court, government, government agency or
instrumentality, domestic or foreign, binding upon the Company.
4. Price Adjustment Event. If at any time prior to January 20,
1999, any Price Adjustment Event (as hereinafter defined) occurs or an
agreement in principle concerning the material terms of a Price Adjustment
Event is reached, then the Company shall immediately notify the Seller.
Contemporaneously with the consummation of the Price Adjustment Event, the
Company shall pay to the Seller an amount equal to 752,478 times the
excess, if any, of (i) the per share purchase price determined as of the
date upon which such Price Adjustment Event is consummated and paid in
connection with the Price Adjustment Event, over (ii) $7.31 per share.
All computations made pursuant to this section and paid to Seller shall be
made in writing and shall be satisfactory to Seller.
For purposes herein, Price Adjustment Event shall mean any
Change of Control of the Company. "Change of Control" shall mean and
shall be deemed to have occurred if at any time for whatever reason any
Person together with "affiliates" and "associates" of such Person, within
the meaning of Rule 12b-2 of the Commission under the Exchange Act, shall
acquire control or beneficial ownership (including beneficial ownership
resulting from the formation of a "group" within the meaning of Rule 13d-5
of the Commission under the Exchange Act) of more than 51% of the shares
of any class of voting stock of the Company.
5. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated. It is hereby stipulated and declared to be the intention of
the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which may be
hereafter declared invalid, void or unenforceable.
(b) Expenses. Each party shall bear its own expenses and
costs for any and all transactions contemplated by this Agreement.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by and against
the successors and assigns of the parties hereto.
(d) Amendments. This Agreement embodies all representations,
warranties and agreements of the parties hereto, supersedes any prior
agreement and the understanding between the parties with respect to the
subject matter of this Agreement. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by both the parties hereto. However, either
party may waive any condition to the obligation of the other party
hereunder.
(e) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given, if given) by delivery, by
facsimile transmission or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the respective parties as follows:
If to the Company:
Xxxx-Xxxxxx Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: X.X. Xxxxxxx, President and
C.E.O.
If to the Seller:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
or at such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall only be effective upon receipt.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive law of the Commonwealth of
Massachusetts without giving effect to the principles of conflict of laws
thereof.
(g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, XXXX-XXXXXX CORPORATION and MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY have caused this Agreement to be duly
executed as of the day and year first above written.
XXXX-XXXXXX CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
Seller:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, MassMutual
Participation Investors and
MassMutual Corporate Investors
By:/s/ Xxxxxxx X. XxXxxx
Name: Xxxxxxx X. XxXxxx
Title: Managing Director
