PURCHASE AGREEMENT AMONG XXXXXXXXX HOLDINGS, INC., XXXXXX X. XXXXXXXXX, B.
XXXXXXX XXXXXXX, XXXXXXX X. XXXXX, XXXXXX X. XXXXXX XX., XXXX X. XXXXXX, XXXXXX
X. FRENCH, XXXXXXX X. XXXX, THE 1999 XXXXXXXXX FAMILY TRUST, THE XXXXXX X.
XXXXXXXXX INSURANCE TRUST, XXXXXX X. XXXXXX, X. XXXXXXXX XXXXX XXXXXX, XXXXXX X.
XXXX, WILMINGTON TRUST COMPANY AS TRUSTEE OF THE XXXXXXX TRUST, SOUTHERN
HIGHLANDS RESERVE, INC., WT INVESTMENTS, INC. AND WILMINGTON TRUST CORPORATION
DATED AS OF JUNE 30, 2004
EXHIBIT 10.62
PURCHASE AGREEMENT
AMONG
XXXXXXXXX HOLDINGS, INC.,
XXXXXX X. XXXXXXXXX,
B. XXXXXXX XXXXXXX,
XXXXXXX X. XXXXX,
XXXXXX X. XXXXXX, XX.,
XXXX X. XXXXXX,
XXXXXX X. FRENCH,
XXXXXXX X. XXXX,
THE 1999 XXXXXXXXX FAMILY TRUST,
THE XXXXXX X. XXXXXXXXX INSURANCE TRUST,
XXXXXX X. XXXXXX,
X. XXXXXXXX XXXXX XXXXXX,
XXXXXX X. XXXX,
WILMINGTON TRUST COMPANY AS TRUSTEE OF THE XXXXXXX TRUST,
SOUTHERN HIGHLANDS RESERVE, INC.,
WT INVESTMENTS, INC.
AND
WILMINGTON TRUST CORPORATION
Dated as of June 30, 2004
TABLE OF CONTENTS
PAGE
BACKGROUND....................................................................... 1
ARTICLE 1 DEFINITIONS........................................................... 1
ARTICLE 2 PURCHASE AND SALE OF THE LLC INTERESTS; CONSIDERATION................. 3
2.1 Purchase and Sale of the LLC Interests ............................ 3
2.2 Consideration...................................................... 4
2.3 Relinquishment of Rights Under Merger Agreement.................... 4
2.4 Relinquishment of Rights Under LLC Agreement....................... 5
2.5 Provisions Relating to BMI......................................... 5
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH PRINCIPAL........... 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX, WTI AND WTC.............. 8
ARTICLE 5 CLOSING............................................................... 9
ARTICLE 6 CONDITIONS PRECEDENT TO AND OBLIGATIONS AT CLOSING.................... 9
6.1 Conditions to Obligations of Principals............................ 9
6.2 Conditions to Obligations of Xxxxxxxxx, WTI and WTC................ 9
6.3 Obligations of the Principals at Closing........................... 9
6.4 Obligations of Xxxxxxxxx, WTI and WTC at Closing................... 9
ARTICLE 7 INDEMNIFICATION....................................................... 10
7.1 Indemnification by the Principals.................................. 10
7.2 Indemnification by Xxxxxxxxx, WTI and WTC.......................... 10
7.3 Limitation......................................................... 10
7.4 Defense of Claims.................................................. 10
7.5 Prompt Payment..................................................... 12
7.6 Sole Remedy........................................................ 12
7.7 Certain Reductions; Subrogation.................................... 12
ARTICLE 8 MISCELLANEOUS......................................................... 12
8.1 Survival of Representations, Warranties and Covenants.............. 12
8.2 Waivers............................................................ 12
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PAGE
8.3 Modifications..................................................... 13
8.4 Further Assurances................................................ 13
8.5 Governing Law; Consent to Jurisdiction............................ 13
8.6 Notices........................................................... 13
8.7 Assignability..................................................... 14
8.8 Captions.......................................................... 14
8.9 Number and Gender................................................. 15
8.10 Severability..................................................... 15
8.11 Counterparts..................................................... 15
8.12 Principals' Representative....................................... 15
Exhibit A Closing Certificate of Xxxxxxxxx, WTI and WTC
Exhibit B Closing Certificate of the Principals
Exhibit C Wire Transfer Instructions
Exhibit D Principals' Representative Agreement
Schedule 1 Schedule of Each Principal's Ownership of Minority Interest in LLC
Schedule 2 Schedule of Each Initial Principal's Right to Purchase Price under
Merger Agreement
Schedule 3 Schedule of Each Principal's Right to Cash
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is dated as of June 30, 2004
among Xxxxxxxxx Holdings, Inc., a Georgia corporation ("Xxxxxxxxx"), Xxxxxx X.
Xxxxxxxxx, B. Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxx X.
Xxxxxx, Xxxxxx X. French, Xxxxxxx X. Xxxx, The 1999 Xxxxxxxxx Family Trust, the
Xxxxxx X. Xxxxxxxxx Insurance Trust (those individuals and trusts are sometimes
collectively referred to herein as the "Initial Principals), Xxxxxx X. Xxxxxx,
X. Xxxxxxxx Xxxxx Xxxxxx, Xxxxxx X. Xxxx, Wilmington Trust Company as Trustee of
The Xxxxxxx Trust, Southern Highlands Reserve, Inc. (those individuals and
entities and the Initial Principals are sometimes collectively referred to
herein as the "Principals"), WT Investments, Inc., a Delaware corporation
("WTI"), and Wilmington Trust Corporation, a Delaware corporation ("WTC").
BACKGROUND
X. Xxxxxxxxx, the Initial Principals, WTI and WTC are parties to a Merger
Agreement dated as of October 23, 2001, as amended (the "Merger Agreement"). All
of the parties are parties to an Amended and Restated Limited Liability Company
Agreement dated as of January 2, 2002, as amended (the "LLC Agreement"). Under
the Merger Agreement, the Initial Principals are entitled to certain payments of
WTC stock in 2005, 2006 and 2007. Under the LLC Agreement, the Principals are
entitled to certain payments relating to their limited liability company
interests (the "LLC Interests") in Xxxxxxxxx Delaware Holding Company, LLC (the
"LLC") and the transfer or sale thereof in the future. The LLC Interests owned
by each Principal as of the date hereof are severally set forth on Schedule 1
attached hereto.
B. The parties desire to accelerate the remaining payments to which the
Initial Principals may become entitled under the Merger Agreement, and the
Principals desire to sell to Xxxxxxxxx and Xxxxxxxxx desires to purchase from
the Principals the LLC Interests.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined herein shall
have the meaning set forth below.
a. "Act" has the meaning assigned to that term in Section (c)(1) of
Article 3.
b. "BMI" means Xxxxxxxxx Management, Inc., a Delaware corporation.
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c. "Capital Account" means, with respect to any Principal, the Capital
Account established and maintained for that Principal on the LLC's books in
accordance with Section 1.704(b)(2)(iv) of the Treasury Regulations.
d. "Closing" and "Closing Date" have the meanings assigned to those terms
in Section 2.1.
e. "Common Stock" means common stock of WTC, par value $1.00 per share.
f. "Encumbrances" has the meaning of assigned to that term in Section
2.1.
g. "Existing Fund" means any one of Xxxxxxxxx U.S. Small Cap Equity Fund,
L.P. (Distribution Class), Xxxxxxxxx U.S. Small Cap Equity Fund, L.P. (Retention
Class), Xxxxxxxxx U.S. Small Cap Equity Fund Select, L.P. (Distribution Class),
Xxxxxxxxx U.S. Small Cap Equity Fund Select, L.P. (Retention Class), Xxxxxxxxx
U.S. Mid Cap Equity Fund, L.P. (Distribution Class), Xxxxxxxxx U.S. Mid Cap
Equity Fund, L.P. (Retention Class), Xxxxxxxxx U.S. Mid Cap Equity Fund Select,
L.P. (Distribution Class), Xxxxxxxxx U.S. Mid Cap Equity Fund Select, L.P.
(Retention Class), Xxxxxxxxx U.S. Large Cap Equity Fund, L.P. (Distribution
Class), Xxxxxxxxx U.S. Large Cap Equity Fund, L.P. (Retention Class), Xxxxxxxxx
U.S. Large Cap Equity Fund Select, L.P. (Distribution Class), Xxxxxxxxx U.S.
Large Cap Equity Fund Select, L.P. (Retention Class), Xxxxxxxxx International
Equity Fund, L.P. (Distribution Class), Xxxxxxxxx International Equity Fund,
L.P. (Retention Class), Xxxxxxxxx International Equity Fund Select, L.P.
(Distribution Class), Xxxxxxxxx International Equity Fund Select, L.P.
(Retention Class), Xxxxxxxxx Hedge Fund II Select Limited Partnership, Xxxxxxxxx
Global Hedge Fund Limited Partnership, Xxxxxxxxx Global Hedge Fund Select
Limited Partnership, Xxxxxxxxx Global Equity Index Fund, L.P. (Retention Class),
Xxxxxxxxx Global Equity Index Fund, L.P. (Distribution Class), Xxxxxxxxx Global
Equity Index Fund Select, L.P. (Retention Class), Xxxxxxxxx Global Equity Index
Fund Select, L.P. (Distribution Class), Xxxxxxxxx Real Estate Fund Select, L.P.
(Retention Class) and/or Xxxxxxxxx Real Estate Fund Select, L.P. (Distribution
Class) and "Existing Funds" means all of those funds collectively.
h. "Indemnified Party" means a Person who is or may be entitled to
indemnification under Article 7.
i. "Indemnifying Party" or "Indemnifying Parties" means a Person who is
(or the Persons who are) or may be obligated to provide indemnification under
Article 7.
j. "Initial Principals" has the meaning assigned to that term in the
Preamble hereto.
k. "LLC" has the meaning assigned to that term in Recital A hereto.
l. "LLC Agreement" has the meaning assigned to that term in Recital A
hereto.
m. "LLC Interests" has the meaning assigned to that term in Recital A
hereto.
n. "Losses" has the meaning assigned to that term in Section 7.1.
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o. "Majority Vote" means the written approval of, or the affirmative vote
by a majority in interest of, the Principals determined with reference to their
percentage ownership of the minority interests in the LLC Interests immediately
prior to the execution hereof.
p. "Merger Agreement" has the meaning assigned to that term in Recital A
hereto.
q. "Permitted Transferee" means, with respect to any natural person, the
parents, siblings, spouse, children (by birth or adoption) or spouses of
children of that person and any trust, partnership, limited partnership, limited
liability partnership or limited liability company created by or for one or more
of the aforementioned individuals of which a Principal is the voting trustee,
general partner, managing member or otherwise possesses the power to vote the
Common Stock held by that entity.
r. "Person" means any individual, partnership, limited liability company,
corporation, association, trust, joint venture or governmental, business or
other entity.
s. "Principals" has the meaning assigned to that term in the Preamble
hereto.
t. "Principals' Representative" has the meaning assigned to that term in
Section 8.12.
u. "Principals' Representative Agreement" has the meaning assigned to
that term in Section 8.12.
v. "Subsidiary" means any Person of which (1) more than 25% of either the
equity interests or the voting control is, directly or indirectly, through
Subsidiaries or otherwise, beneficially owned by that Person or (2) the LLC or
that Person either serves as the general partner or managing member.
w. "Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Internal Revenue code of 1986, as
those regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
x. "Undertaking" has the meaning assigned to that term in Section 2.5.
ARTICLE 2
PURCHASE AND SALE OF THE LLC INTERESTS; CONSIDERATION
2.1 Purchase and Sale of the LLC Interests. In exchange for the
consideration specified herein, and upon and subject to the terms and conditions
of this Agreement, at the closing of the transactions contemplated hereby (the
"Closing"), the Principals shall assign, transfer, convey and deliver all of the
LLC Interests to Xxxxxxxxx free and clear of any and all liens, claims, charges,
conditions, restrictions, security interests, equities or equitable interests,
proxies, pledges, options, escrows, rights of first refusal, mortgages,
indentures, security agreements or other agreements, arrangements, contracts,
commitments, understandings, adverse
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claims, obligations or other encumbrances of any kind (including, without
limitation, any restriction on voting, transfer, receipt of income or exercise
of any other attributes of ownership whether written or oral and whether or not
relating in any way to credit or the borrowing of money) ("Encumbrances"). Each
Principal hereby acknowledges and agrees that, after the foregoing purchase and
sale, he, she or it will no longer have any right of ownership or other
beneficial interest (directly or indirectly) in or to the LLC. The date on which
Closing occurs is referred to herein as the "Closing Date." The Closing Date
shall be July 1, 2004 or such other date to which the parties mutually agree.
2.2 Consideration.
a. As consideration for the Initial Principals' relinquishing their
rights to receive further payments of the purchase price under the Merger
Agreement, and subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements contained herein, at
Closing, Xxxxxxxxx shall pay and deliver to each Initial Principal or cause to
be paid and delivered to each Initial Principal the number of shares of Common
Stock set forth opposite that Principal's name on Schedule 2 attached hereto.
b. As consideration for the Principals' LLC Interests, and subject
to the terms and conditions and in reliance upon the representations,
warranties, covenants and agreements contained herein, at Closing, Xxxxxxxxx
shall pay and deliver or cause to be paid and delivered to each Principal the
cash set forth opposite that Principal's name on Schedule 3 attached hereto.
c. The parties acknowledge that the stock and cash described in
Sections 2.2(a) and 2.2(b) above represent the fair value for the Initial
Principals' relinquishing their rights to receive further payments of purchase
price under the Merger Agreement and the fair value for the Principals' selling
their LLC Interests, respectively, determined on an arms' length basis by
Xxxxxxxxx as a willing buyer, on the one hand, and the Initial Principals and
the Principals as willing sellers, on the other hand.
2.3 Relinquishment of Rights Under the Merger Agreement. By his, her or
its execution hereof, except as otherwise provided in the following sentence,
each Initial Principal, Xxxxxxxxx, WTI and WTC hereby consent to the termination
of the Merger Agreement, effective as of the Closing, and, on behalf of himself,
herself or itself and his, her or its heirs, executors, administrators,
successors and assigns, relinquishes, upon that termination, any and all right,
title and interest thereunder, whether now or hereafter existing, including,
without limitation, under Section 3.1 thereof. Notwithstanding the foregoing or
anything to the contrary herein, the provisions of Sections 7.1, 7.2 and 8.2 of
the Merger Agreement shall survive the Closing. However, the Initial Principals
acknowledge that the Registration Statement on Form S-3 that was filed with the
Securities and Exchange Commission on January 4, 2002 will be amended to
continue to permit the resale of the Common Stock previously issued to the
Initial Principals under the Merger Agreement but not the Common Stock issuable
to the Initial Principals hereunder or in the future. WTC shall use its
reasonable best efforts to maintain that Registration Statement in effect to the
extent necessary to enable the Initial Principals to resell freely the Common
Stock previously issued to them under the Merger Agreement.
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2.4 Relinquishment of Rights Under LLC Agreement. By his, her or its
execution hereof, except as otherwise provided herein, each Principal hereby
relinquishes, effective as of the Closing, on behalf of himself, herself or
itself and his, her or its heirs, executors, administrators, successors and
assigns, any and all right, title and interest under the LLC Agreement
(including any interest in any Capital Account balance or right to receive
distributions associated with his, her or its LLC Interest), whether now or
hereafter existing, including, without limitation, under Section 5.2, 5.13,
Article 7 or Section 12.2(b) thereof. Without limiting the generality of the
foregoing:
a. Each Principal who is also a member of the Board of Managers, an
officer or the "tax matters partner" (or "tax matters member") of the LLC hereby
resigns all such positions effective as of Closing; and
b. Each Principal acknowledges that he, she or it shall no longer
have any right as a member or a manager of the LLC after Closing.
By its execution hereof, except as otherwise specifically provided herein,
each of Xxxxxxxxx, WTI and WTC hereby relinquishes as to each Principal only, on
behalf of itself and its successors and assigns, any and all right, title and
interest under the LLC Agreement, effective as of the Closing, whether now or
hereafter existing; provided that nothing herein shall be deemed to affect the
existence of the LLC, terminate the LLC Agreement or in any manner restrict,
modify or alter any of Xxxxxxxxx'x, WTI's or WTC's rights thereunder as to any
Person other than the Principals.
Notwithstanding the foregoing or anything to the contrary herein:
x. Each Principal shall be entitled to a distribution under Section
6.3 of the LLC Agreement in respect of the second quarter of 2004, which shall
be paid in the ordinary course following Closing;
y. The provisions of Section 10.3 of the LLC Agreement shall survive
the Closing; and
z. Each Principal agrees that the provisions of Article 11 of the
LLC Agreement shall continue to apply to it following Closing as if it were a
member of the LLC following Closing.
2.5 Provisions Relating to BMI. By his, her or its execution hereof, each
Principal hereby:
a. Resigns as a director and/or officer of BMI, as applicable;
b. Acknowledges that BMI's Bylaws may be changed, amended or
modified without his, her or its consent; and
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c. Acknowledges that the undertaking of Xxxxxxxxx Holdings, Inc.
dated April 30, 2003 (the "Undertaking") may be rescinded, amended or modified
without his, her or its consent.
In addition, each natural person Principal acknowledges that the
employment agreement to which he or she is a party with BMI remains in full
force and effect and is unaffected hereby.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH PRINCIPAL
As an inducement to each of Xxxxxxxxx, WTI and WTC to enter into this
Agreement and perform its obligations hereunder, each Principal hereby
represents, warrants and covenants to each of Xxxxxxxxx, WTI and WTC as follows:
a. Ownership; Authority. Each Principal owns the LLC Interest set forth
in Schedule 1 free and clear of any Encumbrances, except for restrictions
imposed by federal or applicable state securities laws. The LLC Interests
constitute all ownership and other beneficial interest each Principal has in the
LLC. Each Principal has all requisite power and authority to execute and deliver
this Agreement, perform his, her or its obligations hereunder and carry out the
transactions contemplated hereby. This Agreement constitutes the valid and
legally binding obligation of each Principal, enforceable against him, her or it
in accordance with its terms and conditions, except that (1) that enforcement
may be subject to applicable bankruptcy, reorganization, insolvency or other
similar laws affecting creditors' rights generally and (2) the remedies of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
b. Noncontravention. The execution, delivery and performance hereof by
each Principal and the consummation of the transactions contemplated hereby does
not and will not, with or without the giving of notice or the lapse of time, or
both, (1) violate any law, statute, rule, regulation or executive order to which
any Principal is subject (including, without limitation, applicable federal or
state banking, securities or corporation statutes and the rules and regulations
promulgated thereunder), (2) violate any judgment, order, writ or decree of any
court or regulatory body applicable to any of them or (3) result in the
violation of or conflict with any term, covenant, condition or provision of any
commitment, contract or other agreement or instrument to which any Principal is
a party or to which he, she or it or any of his, her or its assets is subject,
or otherwise require the consent of any third party that has not been obtained
or will not be obtained prior to Closing.
c. Investment Representations.
(1) Each Initial Principal will acquire the shares of Common Stock
issuable to him, her or it hereunder for his, her or its own account for
investment and not for sale or with a view to distribution thereof or with any
present intention of selling or distributing all or any part thereof. Each
Initial Principal acknowledges that the Common Stock has not been registered
6
under the Securities Act of 1933, as amended (the "Act"), or the securities laws
of any state or other jurisdiction, and cannot be disposed of unless registered
under the Securities Act and any applicable state laws or an exemption from that
registration is available. Each Initial Principal agrees not to sell, transfer,
hypothecate, pledge or alienate any of the Common Stock he, she or it receives
hereunder for at least three years after the date hereof and thereafter only in
compliance with applicable federal and state laws, and acknowledges that the
shares of Common Stock he, she or it receives hereunder will bear a legend
reflecting those restrictions. Notwithstanding the preceding sentence, an
Initial Principal may transfer all or any portion of the Common Stock issuable
to him, her or it hereunder to one or more Permitted Transferees who agree to be
bound by the terms and conditions hereof; provided that any such transfer to a
Permitted Transferee must constitute a bona fide gift from the Initial
Principal.
(2) Each Initial Principal is sufficiently knowledgeable and
experienced in making investments of this type as to be able to evaluate the
risks and merits of his, her or its investment in those shares of Common Stock
and is able to bear the economic risk of his, her or its investment in the
Common Stock.
(3) Each Initial Principal is an "accredited investor" within the
meaning of Rule 501(a) under the Securities Act.
(4) Each Initial Principal acknowledges that he, she or it has
received (A) WTC's 2003 annual report prepared in accordance with Rule 14a-3
under the Exchange Act, (B) WTC's Form 10-K for the year ended December 31,
2003; (C) WTC's definitive proxy statement for its 2004 annual shareholders'
meeting; (D) WTC's Form 10-Q for the quarter ended March 31, 2004; (E) all other
reports and statements filed by WTC with the SEC under Sections 13(a), 14(a),
14(c) or 15(d) of the Exchange Act since December 31, 2003; (F) the description
of the Common Stock contained in pages 27 through 29 of the proxy statement of
Wilmington Trust Company dated March 25, 1991; and (G) the description of WTC's
preferred stock purchase rights contained in WTC's Registration Statement on
Form 8-A filed on January 28, 1995. Each Initial Principal acknowledges that he,
she or it has been provided with an opportunity to review each exhibit to each
of the documents described in this Section (c)(4) of Article 3 a reasonable time
prior to the date of this Agreement.
(5) Each Initial Principal acknowledges that he, she or it has been
provided with an opportunity to ask questions of and receive answers concerning
the terms and conditions of the offering of Common Stock in connection with this
transaction and to obtain any additional information that WTC possesses or can
acquire without unreasonable effort or expense that is necessary to verify the
information furnished pursuant to Section (c)(4) of Article 3.
(6) Each Initial Principal acknowledges that his or her residence or
its principal business address is set forth under his, her or its name on the
signature pages hereto.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
XXXXXXXXX, WTI AND WTC
As an inducement to the Principals to enter into this Agreement and perform
their obligations hereunder, each of Xxxxxxxxx, WTI and WTC represents and
warrants to the Principals as follows:
a. Organization and Authority. Xxxxxxxxx is a corporation duly organized,
validly existing and in good standing under Georgia law, WTI and WTC are
corporations duly organized, validly existing and in good standing under
Delaware law and each has the power and authority to execute and deliver this
Agreement, perform its obligations hereunder and carry out the transactions
contemplated hereby.
b. Due Authorization. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of each of Xxxxxxxxx, WTI and WTC, and the
resolutions adopted by the Board of Directors of each of Xxxxxxxxx, WTI and WTC
evidencing that authorization are duly and validly adopted, have not been
modified, revoked or rescinded in any respect and are in full force and effect.
c. Valid and Binding Agreement. This Agreement constitutes a valid and
binding agreement of each of Xxxxxxxxx, WTI and WTC enforceable against it in
accordance with its terms, except that (1) that enforcement may be subject to
applicable bankruptcy, reorganization, insolvency or other similar laws
affecting creditors' rights generally and (2) the remedies of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
d. Noncontravention. The execution, delivery and performance of this
Agreement by each of Xxxxxxxxx, WTI and WTC and the consummation of the
transactions contemplated hereby does not and will not, with or without the
giving of notice or the lapse of time, or both, (1) violate any provision of
law, statute, rule, regulation or executive order to which any of them is
subject (including, without limitation, applicable federal and state banking,
securities and corporation statutes and the rules and regulations promulgated
thereunder), (2) violate any judgment, order, writ or decree of any court or
regulatory body applicable to any of them or (3) result in the violation of or
conflict with any term, covenant, condition or provision of any commitment,
contract or other agreement or instrument to which any of them is a party or to
which any of them or any of their assets is subject, or otherwise require the
consent of any third party which has not been obtained or will not be obtained
prior to Closing.
e. Common Stock. Each of the shares of Common Stock to be issued by WTC
hereunder shall be duly authorized, validly issued, fully paid and
nonassessable, will be issued free and clear of any Encumbrances or preemptive
rights, and will be listed, subject to official notice of issuance, on the New
York Stock Exchange.
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ARTICLE 5
CLOSING
The Closing for the sale and purchase of the limited liability company
interests shall take place at the offices of the LLC, 0000 Xxxxxxxxx Xxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, or at such other place as the parties may mutually
agree. Balentine, WTI and WTC, on the one hand, and the Principals, on the other
hand, may mutually agree that the Closing may take place by telephone, facsimile
transmission or through the use of mail or an overnight delivery service.
ARTICLE 6
CONDITIONS PRECEDENT TO AND OBLIGATIONS AT CLOSING
6.1 Conditions to Obligations of Principals. The obligations of the
Principals to effect the transactions contemplated hereby are subject to the
satisfaction of the conditions that the representations and warranties of
Xxxxxxxxx, WTI and WTC set forth herein shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, and the Principals shall have
received a certificate in the form of Exhibit A attached hereto, signed on
behalf of each such entity, to that effect. That certificate shall be deemed to
be a representation and warranty of each such entity as of the time immediately
preceding Closing.
6.2 Conditions to Obligations of Xxxxxxxxx, WTI and WTC. The obligations of
Xxxxxxxxx, WTI and WTC to effect the transactions contemplated hereby are
subject to the satisfaction of the conditions that (a) the representations,
warranties and covenants of the Principals set forth herein shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on the Closing Date, and (b) Xxxxxxxxx, WTI and WTC
shall have received a certificate in the form of Exhibit B attached hereto,
signed by each Principal, to that effect. That certificate shall be deemed to be
a representation, warranty and covenant of each Principal as of the time
immediately preceding Closing.
6.3 Obligations of the Principals at Closing. Effective on and after the
Closing Date, the Principals hereby assign and transfer, and are deemed to have
assigned and transferred, unto Xxxxxxxxx the LLC Interests and are deemed to
have irrevocably constituted and appointed the Secretary of the LLC as attorney
to transfer the LLC Interests on the books of the LLC with full power of
substitution in the premises.
6.4 Obligations of Xxxxxxxxx at Closing. At Closing, Xxxxxxxxx shall
deliver or cause to be delivered the purchase price by delivering to each
Initial Principal the shares of Common Stock in the amount set forth opposite
that Initial Principal's name on Schedule 2 attached hereto and to each
Principal cash in the amount set forth opposite that Principal's name on
Schedule 3 attached hereto by wire transfer, or in such other form of
immediately available funds. If by wire transfer, the cash shall be delivered
pursuant to the instructions set forth in Exhibit C attached hereto.
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ARTICLE 7
INDEMNIFICATION
7.1 Indemnification by the Principals. Subject to the provisions of this
Article 7, each Principal shall defend, indemnify, save and hold Xxxxxxxxx, WTI
and WTC and their respective Affiliates, and the shareholders, directors,
officers, employees and agents of each of the foregoing, harmless from and
against any and all actions, suits, claims, proceedings, demands, assessments,
judgments, costs, losses, liabilities, damages, deficiencies and expenses
(including, without limitation, interest, penalties, reasonable attorneys' and
accountants' fees and all reasonable amounts paid in the investigation, defense
or settlement of any of the foregoing) (collectively, "Losses") incurred in
connection with, arising out of, or resulting from (a) any misrepresentation or
breach of any representation or warranty by any Principal herein or (b) any
breach of any covenant or agreement to be performed pursuant to this Agreement
by any of the Principals herein; provided that each Principal shall be obligated
to pay only that Principal's pro rata share of any such Losses. The pro rata
share shall be such Principal's ownership of the Principals' minority interest
in the LLC immediately prior to the execution hereof.
7.2 Indemnification by Xxxxxxxxx, WTI and WTC. Subject to the provisions of
this Article 7, each of Xxxxxxxxx, WTI and WTC shall defend, indemnify, save and
hold the Principals harmless from and against any and all Losses incurred in
connection with, arising out of or resulting from any misrepresentation or
breach of any warranty, covenant or agreement by any of Xxxxxxxxx, WTI or WTC
herein.
7.3 Limitation. No amount shall be recoverable under this Article 7 by
Xxxxxxxxx, WTI or WTC, on the one hand, or the Principals, on the other hand,
until the total amount of Losses suffered by them to date exceeds $10,000.
Further, the indemnification provided by Section 7.1 shall terminate one year
following the Closing and shall be limited to (a) an amount not exceeding the
amount of the total payments (including the fair market value of any Common
Stock on the date initially delivered) made to all of the Principals under
Section 2.2 and (b) with respect to each Principal, an amount not exceeding the
amount of the total payments (including the fair market value of any Common
Stock on the date initially delivered, if applicable) made under Section 2.2 to
that Principal.
7.4 Defense of Claims. If any action, suit, claim, tax audit, proceeding,
demand, assessment or enforcement action is filed or initiated against an
Indemnified Party with respect to a matter subject to an indemnification claim
by that Indemnified Party, the Indemnified Party shall give written notice
thereof to the Indemnifying Party or Parties as promptly as practicable, and in
any event within 20 days after service of the citation or summons, but the
failure of an Indemnified Party to give timely notice shall not affect the
rights of that party to indemnification hereunder to the extent that that
failure does not prejudice the Indemnifying Party. After that notice and a
reasonable period of time to allow for analysis of the claim, if the
Indemnifying Party acknowledges in writing to the Indemnified Party that the
Indemnifying Party is obligated under the terms of its indemnity hereunder for
all liabilities of the Indemnified Party in connection with that action, suit,
claim, tax audit, proceeding, demand, assessment or enforcement action, the
Indemnifying Party shall be entitled, if it so elects and with counsel
reasonably satisfactory to the Indemnified Party, to take control of the defense
and investigation
10
of that action, suit, claim, tax audit, proceeding, demand, assessment or
enforcement action and to employ and engage attorneys to handle and defend the
same, at the Indemnifying Party's cost, risk and expense, except that, if the
Indemnifying Party elects not to assume that defense or counsel for the
Indemnified Party determines in good faith and advises the Indemnifying Party in
writing that there are issues that raise conflicts of interest between the
Indemnifying Party and the Indemnified Party, the Indemnified Party may retain
counsel satisfactory to him, her or it, and the Indemnifying Party shall pay all
reasonable fees and expenses of that counsel for the Indemnified Party promptly
as statements therefor are received; provided, however, that (1) the
Indemnifying Party shall be obligated pursuant to this Article 7 to pay for only
one firm of counsel (unless the use of one counsel for that Indemnified Party
would present that counsel with a conflict of interest) for all Indemnified
Parties in any jurisdiction and (2) the Indemnified Party cooperates in the
defense of any such matter. If the Indemnifying Party assumes the control of
that defense, the Indemnified Party must cooperate in all reasonable respects,
at the Indemnifying Party's request and cost, risk and expense, with the
Indemnifying Party and his, her or its attorneys in the investigation, trial and
defense of that action, suit, claim, tax audit, proceeding, demand, assessment
or enforcement action and any appeal arising therefrom; provided that the
Indemnified Party may, at his, her or its own cost, participate in the
investigation, trial and defense of that action, suit, claim, tax audit,
proceeding, demand, assessment or enforcement action and any appeal arising
therefrom. The Indemnifying Party shall keep the Indemnified Party apprised of
the status of the action, suit, claim, tax audit, proceeding, demand, assessment
or enforcement action, furnish the Indemnified Party with all documents and
information the Indemnified Party reasonably requests in connection therewith,
and consult with the Indemnified Party before acting on major matters involved
in that action, suit, claim, tax audit, proceeding, demand, assessment or
enforcement action, including settlement discussions. Unless the Indemnified
Party receives a complete release from all matters involved in the dispute, no
settlement of any action for which indemnification may be payable hereunder
shall be made without the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld, delayed or conditioned. The
Indemnified Party shall be entitled to defend, settle or proceed in such other
manner as it deems fit, in its sole discretion, in connection with any action,
suit, claim, proceeding, demand, assessment or enforcement action with respect
to which the Indemnifying Party has not acknowledged its obligations in writing
in accordance with the foregoing; and no reasonable action taken by the
Indemnified Party in connection therewith shall affect or limit the obligations
of the Indemnifying Party pursuant to this Article 7.
If the Indemnifying Party assumes the control of that defense as provided
above but subsequently, in the course of defending the matter, comes to believe
that the matter is not properly an obligation of that Indemnifying Party, the
Indemnifying Party may with reasonable promptness advise the Indemnified Party
of that new information. In that case, (a) if the Indemnified Party then agrees
with the Indemnifying Party, the Indemnifying Party and the Indemnified Party
shall make mutually satisfactory arrangements for the Indemnified Party to
assume the defense of that matter and to repay the Indemnifying Party for any
amounts reasonably expended by him, her or it pursuant to this Article 7 with
respect to that matter, and (b) if the Indemnified Party does not then agree
with the Indemnifying Party, the Indemnifying Party shall have the right to
commence legal proceedings to determine whether the matter is subject to
indemnification by the Indemnifying Party; provided that, in the case of clause
(b), the
11
Indemnifying Party shall continue to be obligated to defend the Indemnified
Party with respect to that matter and to otherwise make the payments required by
this Article 7 until that dispute is finally adjudicated by a court of competent
jurisdiction and all rights to appeal with respect thereto have expired.
7.5 Prompt Payment. Any indemnity payable pursuant to this Article 7 shall
be paid within the later of ten days of the Indemnified Party's request therefor
or five days prior to the date on which the liability upon which the indemnity
is based is required to be paid by the Indemnified Party; provided that, if it
is finally determined by a court of competent jurisdiction and all rights to
appeal have expired that the Indemnifying Party is not liable under this Article
7 with respect to a Loss, nothing in this Section 7.5 shall give the Indemnified
Party any independent right to xxx for a violation of this Agreement.
7.6 Sole Remedy. After the Closing, each party's sole and exclusive remedy
for any breach of this Agreement by any other party shall be the provisions in
this Article 7; provided, however, that nothing set forth in this Article 7
shall be deemed to prohibit or limit any party's right at any time on or after
the Closing Date to seek injunctive or equitable relief for the failure of any
other party to perform any covenant or agreement contained herein or to seek any
other relief based upon fraud or intentional misrepresentation.
7.7 Certain Reductions; Subrogation. All indemnification payments payable
hereunder shall be reduced by the amount of insurance proceeds received by the
Indemnified Party as a result of the Losses for which the Indemnified Party is
seeking indemnification. If an Indemnifying Party is obligated to indemnify an
Indemnified Party pursuant to this Article 7, the Indemnifying Party shall, upon
payment of that indemnity in full, be subrogated to all rights of the
Indemnified Party with respect to the Losses to which that indemnification
relates; provided that the Indemnifying Party shall only be subrogated to the
extent of any amount paid by it pursuant to this Article 7 in connection with
that Loss.
ARTICLE 8
MISCELLANEOUS
8.1 Survival of Representations, Warranties and Covenants. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall survive the Closing Date and the
consummation of the transactions contemplated hereby. Except as provided in
Article 7, all covenants herein not fully performed shall survive the Closing
Date and continue thereafter until performed fully.
8.2 Waivers. Any waiver of any term or condition or of the breach of any
covenant, representation or warranty herein in any one instance shall not
operate as or be deemed to be a further or continuing waiver of any other breach
of that term, condition, covenant, representation or warranty or of any other
term, condition, covenant, representation or warranty. No failure or delay at
any time to enforce or require performance of any provision hereof shall operate
as a waiver of or affect in any manner a party's right at a later time to
enforce or require performance of that provision or any other provision hereof.
No such waiver, unless by its own terms it explicitly provides to the contrary,
shall be construed to effect a continuing waiver of the
12
provision being waived, and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of the
party against whom that waiver is claimed in all other instances or for all
other purposes to require full compliance.
8.3 Modifications. Except as otherwise expressly provided herein, neither
this Agreement (including the exhibits and schedules hereto) nor any term hereof
or thereof may be changed, amended, modified, waived, discharged or terminated
except to the extent the same is evidenced by the written consent of the party
against whom enforcement of that change or modification is sought.
8.4 Further Assurances. Each party agrees to execute any and all additional
documents and instruments and to take any and all additional actions as any
other party may reasonably request in order to effectuate the terms and purposes
hereof and the transactions contemplated hereby.
8.5 Governing Law; Consent to Jurisdiction. This Agreement shall be
construed under and governed by Georgia law, without giving effect to the choice
or conflicts of law provisions thereof. Each of Xxxxxxxxx, WTI and WTC hereby
agrees to submit to the jurisdiction of the courts of the State of Georgia and
the courts of the United States of America located in the Northern District in
the State of Georgia in any action or proceeding arising out of or relating to
this Agreement. Each Principal hereby agrees to submit to the jurisdiction of
the courts of the State of Delaware and to the courts of the United States of
America located in Delaware in any action or proceeding arising out of or
relating to this Agreement.
8.6 Notices.
a. All notices, requests, demands and other communications required
or permitted under this Agreement shall be in writing and sent as provided in
Section 8.6(b) hereof:
(1) If to Xxxxxxxxx, WTI or WTC, to:
Wilmington Trust Corporation
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx,
Executive Vice President
13
with a copy to:
Wilmington Trust Corporation
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Vice President
(2) If to the Principals, to
c/x Xxxxxxxxx Delaware Holding Company, LLC
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
b. All notices and other communications required or permitted
hereunder that are addressed as provided in this Section 8.6, (1) if delivered
personally against proper receipt shall be effective upon delivery, if sent by
certified or registered mail with postage prepaid, shall be effective upon
receipt or (2) if sent by Federal Express or a similar nationally recognized
overnight courier service with courier fees paid by the sender, shall be
effective one business day after mailing. A party may change its address for the
purpose of notices to that party from time to time by a similar notice
specifying a new address, but no such change shall be deemed to have been given
unless it is sent and received in accordance with this Section 8.6.
8.7 Assignability. Neither this Agreement nor any right or obligation
hereunder shall be assignable by any party to any other Person without the prior
written consent of the other parties, except that Xxxxxxxxx, WTI and/or WTC may,
with notice to the other parties, assign any or all of its interests herein and
its rights and obligations hereunder to any entity directly or indirectly wholly
owned by WTC, provided in every instance that Xxxxxxxxx, WTI and WTC shall
remain fully liable for all of their obligations hereunder following any such
assignment and shall in no way be released from this Agreement thereby. This
Agreement shall be binding upon, enforceable by and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
8.8 Captions. The captions in this Agreement are for convenience only and
shall not affect the construction or interpretation of any term or provision
hereof.
14
8.9 Number and Gender. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular unless the context
otherwise requires and the use of any gender shall include all genders.
8.10 Severability. The invalidity or unenforceability of any nonmaterial
provision of this Agreement shall not affect any other provision hereof, and
this Agreement shall be construed in all respects by interpreting that invalid
or unenforceable provision as nearly to the original meaning as possible so as
to make it valid and enforceable or, if that is not possible or permitted by
applicable law, by omitting that invalid or unenforceable provision.
8.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.12 Principals' Representative. Each Principal has appointed Xxxxxx X.
Xxxxxxxxx as his or its representative, agent and attorney-in-fact ("Principals'
Representative") pursuant to an agreement in the form of Exhibit D ("Principals'
Representative Agreement") and has provided to the Principals' Representative
the full legal authority, capacity, and power to act on behalf of that Principal
with respect to any matters arising under this Agreement or in connection
therewith. Each of Xxxxxxxxx, WTI and WTC shall be entitled to rely, and shall
in no way be liable for relying, on the full legal authority, capacity, and
power of the Principals' Representative to act on behalf of each Principal with
respect to any matter arising hereunder or in connection herewith without
further inquiry. Each Principal shall hold each of Xxxxxxxxx, WTI and WTC
harmless from any liability or loss arising out of the reliance by any of them
on that power-of-attorney. If the Principals, by Majority Vote, provide each of
Xxxxxxxxx, WTI and WTC with 30 days' notice that Xxxxxx X. Xxxxxxxxx has been
terminated as Principals' Representative, Xxxxxxxxx, WTI and WTC shall cease to
rely on Xxxxxx X. Xxxxxxxxx as Principals' Representative and shall rely on any
successor Principals' Representative who those Principals so designate as the
new Principals' Representative.
[Signature Pages Follow.]
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
XXXXXXXXX HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx (SEAL)
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Address: Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxxx (SEAL)
---------------------------------------
XXXXXX X. XXXXXXXXX
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
/s/ B. Xxxxxxx Xxxxxxx (SEAL)
---------------------------------------
B. XXXXXXX XXXXXXX
Address: 0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxx (SEAL)
---------------------------------------
XXXXXXX X. XXXXX
Address: 000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx, Xx. (SEAL)
---------------------------------------
XXXXXX X. XXXXXX, XX.
Address: 000 Xxx Xxxxx
Xxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxx (SEAL)
---------------------------------------
XXXX X. XXXXXX
Address: 000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
[Signatures continue on following page.]
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[Signatures continued from preceding page.]
/s/ Xxxxxx X. French (SEAL)
---------------------------------------
XXXXXX X. FRENCH
Address: 0000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx (SEAL)
---------------------------------------
XXXXXXX X. XXXX
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
THE 1999 BALENTINE FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
Address: 0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
THE XXXXXX X. XXXXXXXXX INSURANCE TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx Law
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Law
Title: Trustee
Address: c/o Xxxxxxx X. Xxxxxxxxx Law
00 00xx Xxxxxx, XX
Xxxxxxx, XX 00000
[Signatures continue on following page.]
17
[Signatures continued from preceding page.]
/s/ Xxxxxx X. Xxxxxx (SEAL)
---------------------------------------
XXXXXX X. XXXXXX
Address: 000 Xxx Xxxxx
Xxxxxxx, XX 00000
/s/ X. Xxxxxxxx Xxxxx Xxxxxx (SEAL)
---------------------------------------
X. XXXXXXXX XXXXX XXXXXX
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxx (SEAL)
---------------------------------------
XXXXXX X. XXXX
Address: 0000 Xxxxx Xxx Xxxx, X.X.
Xxxxxxx, XX 00000
[Signatures continue on following page.]
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