AGREEMENT OF PURCHASE AND SALE OF STOCK
AGREEMENT (this "Agreement"), dated as of December 7, 2005, by and between
XXXXX & XXXXX COMPANY, a Delaware corporation having its principal office at
0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx ("Purchaser"), and WARBURG
PINCUS INVESTORS LIQUIDATING TRUST, as successor to Warburg, Xxxxxx Investors,
L.P., having offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller, as of the date hereof, owns an aggregate of 5,861,902
shares of Purchaser's common stock, par value $.01 per share (the "Common
Stock"), which represents all of the issued and outstanding shares of
Purchaser's Common Stock owned by Seller and any "Affiliate" (as hereinafter
defined) of Seller (all such shares of Common Stock are hereinafter collectively
referred to as the "Shares"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of the Shares on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and in order to set forth the terms and conditions of the purchase
and sale of stock and the manner of carrying the same into effect, the parties
hereto hereby agree as follows:
1. Purchase and Sale of Stock. Subject to and upon the terms and conditions
set forth in this Agreement, upon the "Closing" (as hereinafter defined), Seller
will sell, transfer, convey, assign and deliver to Purchaser, and Purchaser will
purchase all of Seller's right, title and interest in and to the Shares.
2. Purchase Consideration. As full and total consideration for the sale,
transfer, conveyance, assignment and delivery of the Shares by Seller to
Purchaser, and in reliance upon the representations and warranties made herein
by Seller, upon the Closing Purchaser agrees to pay to the order of Seller
Twenty Three Million Four Hundred Forty Seven Thousand Six Hundred and Eight
Dollars ($23,447,608) (the "Purchase Price") by wire transfer in accordance with
the wire transfer instructions set forth on Exhibit A annexed hereto.
3. Closing. The closing of the transaction contemplated under this
Agreement shall take place simultaneously upon the execution hereof at the
offices of Xxxxxxxx Xxxx & Brandeis, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place or in such other manner as agreed to by the
parties (the "Closing").
4. Seller's Obligations at Closing. At the Closing, Seller shall deliver to
Purchaser (and, as applicable, execute):
(i) stock certificate(s) representing the Shares, duly endorsed in
blank, and with all necessary, if any, stock transfer stamps attached;
(ii) a waiver and release from Seller and certain of Seller's
Affiliates in favor of Purchaser in substantially the form of Exhibit B annexed
hereto (the "Release"); and
(iii) all other documents and instruments required to be delivered to
Purchaser pursuant to the provisions of this Agreement.
5. Purchaser's Obligations at Closing. At the Closing, Purchaser agrees to
deliver to the order of Seller by wire transfer the entire Purchase Price.
6. Representations and Warranties of Seller. Seller represents and warrants
to Purchaser as follows:
(a) Existence; Due Execution, Power and Authorization. Seller is a
trust validly existing under the laws of the State of New York. The execution,
delivery and performance by the Seller of this Agreement and the Release is not
and will not be contrary to the provisions of the constitutional documents of
Seller and will not result in any breach of the terms of, or constitute a
default under, any instrument or agreement to which Seller is a party or by
which its property is bound. The execution, delivery and performance by Seller
of this Agreement and the Release and the consummation of the transactions
contemplated hereby and thereby are within Seller's power and have been
authorized by all necessary action on the part of Seller. Accordingly, Seller
has the full right, power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby, all proceedings required to be
taken by Seller to authorize the execution, delivery and performance of this
Agreement have been properly taken, and this Agreement constitutes the valid and
binding obligation of Seller, enforceable in accordance with its terms, except
that such enforcement may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and similar law affecting creditors'
rights generally.
(b) Ownership of Seller's Common Stock. As of the Closing, Seller is
the lawful record and beneficial owner of all of the Shares, free and clear of
any liens, claims, encumbrances or restrictions of any kind (other than any
restrictions under the Securities Act of 1933, as amended, or other applicable
securities laws). Except with respect to that certain voting agreement dated
January 24, 1997 by and among Warburg, Xxxxxx Investors, L.P., Archon Group,
L.P. and Xxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx and C. Xxxxxxx Xxxxxxx (the "Voting
Agreement"), Seller is not a party to or otherwise subject to any agreement,
understanding or arrangement of any nature whatsoever, regarding the ownership,
transfer, sale, disposition, purchase, acquisition or voting of the Shares.
Additionally, other than the Shares, neither Seller nor any Affiliate of Seller
directly or indirectly, beneficially or otherwise, owns any other equity or debt
securities of Purchaser, or has the right (through the exercise of a derivative
security or otherwise) or has any agreement or understanding of any nature
whatsoever (whether written or oral) to acquire any other equity or debt
securities of Purchaser. Upon the delivery thereof to Purchaser at the Closing,
together with executed stock transfer forms in respect thereof, Purchaser will
acquire good, marketable and valid title to, and undisputed record and
beneficial ownership of, the Shares, free and clear of any liens, claims,
encumbrances or restrictions of any nature whatsoever.
7. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller as follows:
(a) Organization; Due Execution, Power and Authorization. Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power and authority to
enter into this Agreement. Accordingly, Purchaser has the full right, power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by Purchaser to
authorize the execution, delivery and performance of this Agreement have been
properly taken, and this Agreement constitutes the valid and binding obligation
of Purchaser, enforceable in accordance with its terms, except that such
enforcement may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and similar law affecting creditors;
rights generally.
8. Covenants of Parties.
(a) It is expressly acknowledged, understood and agreed by Seller that
from time to time there exists information which may be of a material nature
concerning various aspects of the business and prospects of the Company that is
not publicly available (collectively, the "Non-Public Information"), and which
Non-Public Information, if Seller was aware of, might influence or change
Seller's decision to sell the Shares to Purchaser for the Purchase Price set
forth herein, or at all. Nonetheless, Seller expressly agrees, and it shall be
of the essence hereof, on its own behalf and on behalf of its Affiliates,
pursuant to the Release annexed hereto as Exhibit B and delivered herewith, to
forever waive and release the Company, and all of the Company's predecessors and
successors and all of the Company's former, present and future officers,
directors, employees, stockholders, Affiliates, agents (including but not
limited to attorneys and auditors) and assigns, from any and all claims or
liabilities of any nature whatsoever arising out of or related to any Non-Public
Information. As used herein, the term "Affiliate" shall mean with respect to any
"Person" (as hereinafter defined), any other Person, directly or indirectly,
controlling, controlled by, or under common control with, such Person. For
purposes of this definition, the term "control" (including the correlative terms
"controlling", "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. As used herein,
"Person" shall mean any individual, corporation, limited liability company,
shareholder, member, manager, general partnership, limited partnership, general
partner, limited partner, association, trust, trustee, beneficiary, or any other
natural person, entity or organization, including but not limited to any
governmental agency or authority or any self regulatory organization.
(b) The parties expressly agree that upon the Closing, the Voting
Agreement will be terminated and of no further force and effect.
(c) The parties acknowledge and agree that the Shares are being
offered and sold hereunder in reliance upon an exemption from the registration
requirements of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
9. Survival of Representations, Warranties and Covenants. All statements,
representations, warranties and covenants made by each of the parties hereto
(and in any Exhibit hereto) are and shall be true and correct as of the Closing,
and each of them shall survive the Closing.
10. Notices. Any and all notices, demands or requests required or permitted
to be given under this Agreement shall be given in writing and sent, by
registered or certified U.S. mail, return receipt requested, by hand, or by a
recognized overnight courier, addressed to the parties hereto at their addresses
set forth above or such other addresses as they may from time-to-time designate
by written notice, given in accordance with the terms of this Section, together
with copies thereof as follows:
In the case of Purchaser, a copy simultaneously by like means to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile no.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
In the case of Seller, a copy simultaneously by like means to:
Xxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile no.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Notice given as provided in this Section shall be deemed effective:
(i) on the date hand delivered, (ii) on the first business day following the
sending thereof by overnight courier, and (iii) on the seventh calendar day (or,
if it is not a business day, then the next succeeding business day thereafter)
after the depositing thereof into the exclusive custody of the U.S. Postal
Service.
11. Miscellaneous.
(a) This Agreement, including the Exhibits annexed hereto, constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersedes any and all prior agreements, arrangements or understandings with
respect hereto, and may not be modified or amended except by a written agreement
specifically referring to this Agreement signed by all of the parties hereto.
(b) No waiver of any breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such waiver, and no such
waiver shall be deemed a waiver of any subsequent breach or default of the same
or similar nature.
(c) This Agreement shall be binding upon and inure to the benefit of
each party hereto, its successors and assigns, and each individual party hereto
and his heirs, personal representatives, successors and assigns.
(d) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
sections.
(e) Each party hereto shall cooperate, shall take such further action
and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(f) All legal, accounting and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party or parties incurring the same.
(g) This Agreement and all amendments hereto shall be governed by, and
construed and enforced in accordance with the internal laws of the State of
Delaware without giving effect to such State's principles of conflict of laws.
(h) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision, only to the extent it is invalid or unenforceable, and shall not in
any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
(i) Seller and Purchaser agree that, without the prior written consent
of the other, except to the extent required by federal securities law, it shall
not make or permit to be made any public or private disclosure or announcement
of any kind regarding this Agreement or the transactions contemplated hereby,
either upon the Closing or any time thereafter. In connection with any such
disclosures required by federal securities laws, the parties will, in good
faith, consult with one another before effecting any such disclosures.
(j) Seller, on the one hand, and Purchaser, on the other hand,
represent and warrant to the other that there is no obligation to pay any
commission, finder's fee, broker's fee or similar charge in connection with the
transactions provided for in this Agreement, resulting from any agreements or
other action of such representing party; and each of the parties hereto agrees
to indemnify the other with respect to the foregoing.
(k) The parties hereto hereby irrevocably consent to the exclusive
jurisdiction and venue of all Federal and State courts located in the County of
Kent, State of Delaware in connection with any proceedings brought by Seller,
Purchaser, or their successors or assigns, in connection with this Agreement.
(l) This Agreement may be executed and delivered in one or more
original or facsimile counterparts, each of which shall be deemed an original
but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXX & XXXXX COMPANY
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executive Office
WARBURG, XXXXXX INVESTORS LIQUIDATING TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
