STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of March
28, 2003 by and among REFAC, a Delaware corporation (the "Company"), and
Palisade Concentrated Equity Partnership, L.P., a Delaware limited partnership
(the "Purchaser").
WHEREAS, on February 28, 2003, the Company and the Purchaser
consummated a transaction whereby a wholly-owned subsidiary of the Purchaser was
merged with and into the Company, pursuant to an Agreement and Plan of Merger,
dated as of August 19, 2002, by and among the Company, the Purchaser and such
subsidiary (the "Merger Agreement");
WHEREAS, following the closing of such merger, the Purchaser owns
approximately 80% of the Company's outstanding shares of common stock, par value
$0.001 per share (the "Common Stock");
WHEREAS, Purchaser has determined that it desires to purchase
3,469,387 additional shares of Common Stock from the Company (the "Shares"), at
an aggregate price of $17 million in immediately available funds (the "Purchase
Price"); and
WHEREAS, the Board of Directors has (i) formed a special committee
to review the proposed transaction and (ii) received the written opinion of
Xxxxxx Xxxxxx & Co., Inc. to the effect that the Purchase Price is fair from a
financial point of view to the Company and its stockholders;
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
Section 1. Purchase and Sale of Stock. (a) Upon the terms and
subject to the conditions of this Agreement, on the Closing Date (as defined in
Section 2.1), the Purchaser shall purchase from the Company, and the Company
shall issue and sell to the Purchaser, 3,469,387 Shares for an aggregate price
equal to the Purchase Price.
(b) In connection with the payment of the Purchase Price, the
Company shall provide the Purchaser with written wire transfer instructions
prior to the Closing.
Section 2. The Closing.
2.1. The Closing. (a) The purchase and sale of the Shares pursuant
to this Agreement will take place at a closing (the "Closing") to be held at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York time, on such date as shall be
agreed upon by the Company and the Purchaser (the "Closing Date"), which date
shall be no later than five (5) business days following the satisfaction or
waiver of all the conditions set forth in Section 2.2, unless otherwise agreed
to by the Parties, and no earlier than the twentieth calendar day following the
mailing of the information statement required by Section 6.1(a). At the Closing:
(i) the Purchaser shall deliver to the Company immediately
available funds in the full amount of the Purchase Price, in accordance
with the wire transfer instructions delivered by the Company pursuant to
Section 1(b); and
(ii) the Company shall deliver to the Purchaser one or more
certificates representing 3,469,387 Shares, bearing a legend in accordance
with Section 5.
2.2. Conditions to Closing.
(a) The Company's obligation to complete the sale of the Shares is
subject to:
(i) the accuracy in all material respects of the
representations and warranties made by the Purchaser in Section 4 as of
the date hereof and as of the Closing Date and the fulfillment in all
material respects of those undertakings of the Purchaser in this Agreement
to be fulfilled on or prior to the Closing Date; and
(ii) the approval for listing the Shares, upon notice of
issuance, by the American Stock Exchange.
(b) The Purchaser's obligation to complete the purchase of the
Shares is subject to the accuracy in all material respects of the
representations and warranties made by the Company in Section 3 as of the date
hereof and as of the Closing Date and the fulfillment in all material respects
of those undertakings of the Company in this Agreement to be fulfilled on or
prior to the Closing Date.
Section 3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser as follows:
3.1. Organization, Authorization, Etc. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and to issue the
Shares in accordance
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with the terms hereof. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby have
been duly authorized by the Company's Board of Directors and no further consent
or authorization thereof is required. Upon the satisfaction of the obligation
set forth in Section 6.1(a), this Agreement shall be duly authorized by the
Company's stockholders and no further consent or authorization thereof shall be
required. This Agreement constitutes the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies.
3.2. Issuance of Shares. The Shares to be issued to the Purchaser
are duly authorized and, upon issuance in accordance with the terms of this
Agreement, shall be validly issued, fully paid and non-assessable, and shall not
be subject to preemptive rights or other similar rights of any other person or
entity.
Section 4. Representations and Warranties of The Purchaser.
The Purchaser hereby represents and warrants to the Company as of
the Closing Date as follows:
4.1. Organization, Authorization , Etc. The Purchaser is a limited
partnership duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization.
The Purchaser has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
general partners of the Purchaser have taken all necessary action to authorize
the execution, delivery and performance of this Agreement. This Agreement
constitutes the valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies.
4.2. Sufficient Funds. The Purchaser will at the Closing have
sufficient immediately available funds in cash to pay the Purchase Price.
4.3. Investment Experience. The Purchaser is an accredited investor
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), is knowledgeable, sophisticated
and experienced in making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved in
the purchase of the Shares.
4.4. Investment Intent and Limitation On Dispositions. The Purchaser
is acquiring Shares for its own account for investment only and has no intention
of selling or distributing any of such Shares or any arrangement or
understanding with any other
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person or entity regarding the sale or distribution of such Shares except
pursuant to a registration, or an exemption from registration, under the
Securities Act.
4.5. Information And Risk.
(a) The Purchaser has requested, received, reviewed and considered
all information the Purchaser deems relevant in making an informed decision to
purchase the Shares. The Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with its management and
also had an opportunity to ask questions of officers of the Company that were
answered to the Purchaser's satisfaction, provided that such inquiries do not
impair the rights of the Purchaser to rely on the representations and warranties
of the Company as set forth in Section 3.
(b) The Purchaser recognizes that an investment in the Shares
involves a high degree of risk, including a risk of total loss of the
Purchaser's investment. The Purchaser is able to bear the economic risk of
holding the Shares for an indefinite period, and has knowledge and experience in
the financial and business matters such that it is capable of evaluating the
risks of the investment in the Shares.
(c) The Purchaser has, in connection with the Purchaser's decision
to purchase Shares, not relied upon any representations or other information
(whether oral or written) with respect to the Company other than as set forth in
Section 3 hereof, and the Purchaser has, with respect to all matters relating to
this Agreement and the sale of the Shares, relied solely upon the advice of the
Purchaser's own counsel and has not relied upon or consulted counsel to the
Company.
4.6. Disclosures to the Company. The Purchaser understands that the
Company is relying on the statements contained herein to establish an exemption
from registration under federal and state securities laws.
4.7. Brokers or Finders. No broker, investment banker, financial
advisor or other person or entity is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission from the Company in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of the Purchaser.
Section 5. Legends. The Purchaser understands and agrees that each
certificate or other document evidencing any of the Shares shall be endorsed
with the legend in the form set forth below, and the Purchaser covenants that
the Purchaser will not transfer the shares represented by any such certificate
without complying with the restrictions on transfer described in the legend
endorsed on such certificate and understands that the Company will refuse to
register a transfer of any Shares unless the conditions specified in the
following legend are satisfied:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED, OR
OTHERWISE TRANSFERRED IN THE
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ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER
SUCH ACT UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT OR UNLESS SUCH SALE,
PLEDGE, HYPOTHECATION OR TRANSFER IS OTHERWISE EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE
COMPANY MAY REQUEST A WRITTEN OPINION OF COUNSEL, REASONABLY SATISFACTORY
TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN
CONNECTION WITH SUCH SALE OR OTHER TRANSFER."
Section 6. Covenants.
6.1. Covenants of the Company.
(a) As soon as practicable following the date hereof, the Company
shall mail to its stockholders an information statement in connection with this
Agreement and the transactions contemplated hereby, in accordance with
Regulation 14C under the Securities Exchange Act of 1934, as amended.
(b) The Company shall use commercially reasonable efforts to as soon
as practicable cause the Shares to be listed on the American Stock Exchange,
upon notice of issuance.
6.2. Covenants of Purchaser.
(a) Simultaneously herewith, the Purchaser is executing and
delivering to the Company an action by written consent in the form attached
hereto as Exhibit A. Such consent shall be effective no earlier than the
twentieth calendar day following the mailing of the information statement
pursuant to Section 6.1(a).
(b) The Purchaser shall not directly or indirectly cause a merger
between the Company and the Purchaser (or any subsidiary or affiliate thereof)
pursuant to Section 253 or any other provision of the Delaware General
Corporation Law until the one hundred and twentieth day following the date on
which instructions in connection with the Payment Right (as defined in the
Merger Agreement) were first mailed by the Company to holders of Common Stock
pursuant to Sections 2.01(d) and (f) of the Merger Agreement.
Section 7. Notices.
(a) All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be as addressed as follows:
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If to the Purchaser, to:
Palisade Capital
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to the Company, to:
Refac
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, President and CEO
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(b) Such notices or other communications shall be deemed delivered
upon receipt, in the case of overnight delivery, personal delivery, facsimile
transmission (as evidenced by the confirmation thereof), or mail.
Section 8. Miscellaneous.
8.1. Amendments. Any term of this Agreement may be amended only with
the written consent of the Company and the Purchaser.
8.2. Headings. The headings of the various sections of this
Agreement are for convenience of reference only and shall not be deemed to be
part of this Agreement.
8.3. Severability. In the event that any provision in this Agreement
is held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
8.4. Governing Law And Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
giving effect
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to any choice of law provisions thereof, and the federal law of the United
States of America. The parties hereto agree to submit to the exclusive
jurisdiction of the federal and state courts of the State of Delaware with
respect to the interpretation of this Agreement or for the purposes of any
action arising out of or related to this Agreement.
8.5. Counterparts. This Agreement may be executed in two
counterparts, each of which shall constitute an original, and both of which
together shall constitute one and the same instrument. In the event that any
signature is delivered via facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original hereof.
8.6. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the matters covered herein and
supersedes all prior agreements and understandings with respect to such matters.
Except as specifically set forth herein or therein, neither the Company nor the
Purchaser makes any representation, warranty, covenant or undertaking with
respect to such matters.
8.7. Expenses. Each party hereto shall pay all costs and expenses
incurred by it in connection with the execution, delivery and performance of
this Agreement, including, but not limited to, fees of legal counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized representatives as of the day
and year first above written.
REFAC
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PALISADE CONCENTRATED EQUITY
PARTNERSHIP, L.P.
By:
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Name:
Title:
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