Exhibit 10.1
Xxxxxx Group Holdings Limited
1,500,000 Shares
Common Stock
($0.000115 par value)
Repurchase Agreement
New York, New York
November 9, 2005
Xxxxxx Group Holdings Limited
Ten Xxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Ladies and Gentlemen:
Profit Sharing (Overseas), Limited Partnership, a limited
partnership formed pursuant to the laws of the Province of Alberta ("Overseas")
and Xxxxxx Capital Corp. L.L.C., a Delaware limited liability company ("Xxxxxx
Capital" and, together with Overseas, the "Selling Stockholders"), propose to
sell, pursuant to Section 42A of the Companies Xxx 0000 of Bermuda (the
"Companies Act"), to Xxxxxx Group Holdings Limited, a Bermuda company (the
"Company"), 1,500,000 shares of Common Stock, par value $0.000115 per share
("Common Stock"), of the Company (said shares to be sold by the Selling
Stockholders being hereinafter called the "Securities"). Reference is made to
the Underwriting Agreement, dated the date hereof (the "Underwriting
Agreement"), among Citigroup Global Markets Inc., Xxxxxx Brothers Inc. and the
other several Underwriters named in Schedule I thereto (the "Underwriters"), the
Company and the Selling Stockholders.
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Selling Stockholder
that:
(a) This Agreement and the purchase and sale contemplated
hereby have been duly authorized by the Company and have been entered into in
compliance with Section 42A of the Companies Act.
(b) No consent, approval, authorization, filing, order,
registration or qualification of or with any court or governmental agency or
body is required in connection with the transactions contemplated herein.
(c) To ensure the legality, validity, enforceability and
admissibility into evidence of each of this Agreement and any other document to
be furnished hereunder in Bermuda, it is not necessary that this Agreement, the
Securities or such other document be filed or recorded with any court or other
authority in Bermuda or any stamp or similar tax be paid in Bermuda on or in
respect of this Agreement, the Securities or any such other document.
2. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with the Company that:
(a) Such Selling Stockholder is the record owner of the
Securities to be sold by it hereunder free and clear of all liens, encumbrances,
equities and claims.
(b) No consent, approval, authorization, filing, order,
registration or qualification of or with any court or governmental agency or
body is required for the sale of the Securities by such Selling Stockholder.
3. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, each Selling Stockholder agrees to sell to the Company the amount of
Securities set forth opposite such Selling Stockholder's name in Schedule I
hereto, and the Company agrees to purchase from each Selling Stockholder the
Securities, at a purchase price of $36.0 per share (such purchase price equal to
the price per share that the Underwriters shall pay to the Selling Stockholders
for the Underwritten Securities (as defined in the Underwriting Agreement)
pursuant to the terms of the Underwriting Agreement).
4. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on November 16, 2005,
or at such time on such later date as the delivery of and payment for the
Underwritten Securities sold pursuant to the terms of the Underwriting Agreement
shall take place (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Company against payment by the Company of the aggregate purchase
price of the Securities being sold by each of the Selling Stockholders to or
upon the order of such Selling Stockholder by wire transfer payable in same-day
funds to an account specified by such Selling Stockholder.
Each Selling Stockholder will pay all applicable transfer
taxes, if any, involved in the transfer to the Company of the Securities to be
purchased by it from such Selling Stockholder.
5. Conditions to the Obligations of the Company and the
Selling Stockholders.
(a) The obligations of the Company to purchase the
Securities shall be subject to the accuracy of the representations and
warranties on the part of the Selling Stockholders contained herein as of the
date hereof and the Closing Date, to the performance by the Selling Stockholders
of their respective obligations hereunder and to the delivery of and payment for
of the Underwritten Securities pursuant to the terms of the Underwriting
Agreement.
2
(b) The obligations of the Selling Stockholders to sell the
Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof and
the Closing Date, to the performance by the Company of its obligations hereunder
and to the delivery of and payment for of the Underwritten Securities pursuant
to the terms of the Underwriting Agreement.
(c) If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as provided in
this Agreement, this Agreement and all obligations of the Company and the
Selling Stockholders hereunder may be canceled at, or at any time prior to, the
Closing Date by the other party. Notice of such cancelation shall be given to
the Company and the Selling Stockholders in writing or by telephone or facsimile
confirmed in writing.
6. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Company, will be mailed,
delivered or telefaxed to 00(0)00 0000 0000 and confirmed to it at Ten Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx, XX0X 0XX, Attention: Corporate Secretary; or if sent to
the Selling Stockholders, will be mailed, delivered or telefaxed to each of the
addresses or telefax numbers set forth in Schedule I hereto.
7. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York. The Company and
each Selling Stockholder hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in New York City in any
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
8. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
9. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
3
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Selling Stockholders.
Very truly yours,
PROFIT SHARING (OVERSEAS),
LIMITED PARTNERSHIP,
By KKR 1996 FUND (OVERSEAS), LIMITED PARTNERSHIP,
its general partner
By KKR ASSOCIATES II (1996), LIMITED PARTNERSHIP,
its general partner,
By KKR 1996 OVERSEAS, LIMITED, its general partner,
By /s/ Xxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
XXXXXX CAPITAL CORP. L.L.C.
By /s/ Xxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Member
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX GROUP HOLDINGS LIMITED
By /s/ Xxxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Group General Counsel
4
SCHEDULE I
Number of
Selling Stockholders: Securities to be Sold
--------------------- ---------------------
Profit Sharing (Overseas), Limited Partnership 1,488,810
Xxxxxx Xxxxx
X.X. Xxx 000 Xxxxxx Xxxx,
Xxxxx Xxxxxx Xxxxxx Xxxxxxx,
B.W.I.
Fax: (000) 000-0000
Xxxxxx Capital Corp. L.L.C. 11,190
0 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Total:................................ 1,500,000
=========
5
