STOCK OPTION AGREEMENT
dated as of February 14, 2005
by and between
XXXX PARTNERS LLC
and
HIGH RIVER LIMITED PARTNERSHIP,
ICAHN PARTNERS LP and
ICAHN PARTNERS MASTER FUND LP
with respect to 250,000 shares of
common stock of
XXXX-XXXXX CORPORATION
This STOCK OPTION AGREEMENT, dated as of February 14, 2005, is
made and entered into by and between HIGH RIVER LIMITED PARTNERSHIP, a Delaware
limited partnership, ICAHN PARTNERS LP, a Delaware limited partnership, ICAHN
PARTNERS MASTER FUND LP, a Cayman Islands exempted limited partnership
(collectively, the "Purchasers"), and XXXX PARTNERS LLC, on behalf of funds and
accounts managed by it and its affiliates (the "Seller"). Capitalized terms not
otherwise defined herein have the meanings set forth in Article IV.
WHEREAS, the Purchasers desire to acquire from the Seller an
option to acquire 250,000 shares (the "Shares") of the common stock, par value
$1.00 per share, of Xxxx-XxXxx Corporation, on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
GRANT OF OPTION, SALES OF SHARES AND CLOSING
1.01 Grant of Option. In consideration of a payment by the Purchasers to the
Seller of an aggregate of $1,500,000, to be wired to the Seller on the date
hereof in accordance with the wire instructions set forth on Schedule A hereto,
the Seller hereby grants to the Purchasers the right and option to purchase the
Shares at a strike price of $60.00 per Share (the "Option"). The Purchasers may
exercise the Option, in whole or in part, from time to time, from the date
hereof through August 14, 2005, by delivery of one or more notices (each an
"Exercise Notice") to the Seller by email as follows: xxxx@xxxxxxxxxxxx.xxx,
with a copy to xxxxx@xxxxxxxxxxxx.xxx, at or prior to 3:00 p.m. New York City
time on the date of exercise, to be accompanied by a phone call to the Seller as
follows: Xxxx Xxxxx at (000) 000-0000 or Xxxxx Xxxxxxxxxx at (000) 000-0000,
indicating that such notice has been sent. Each Exercise Notice shall contain
instructions (i) specifying the number of Shares to be purchased by each
individual Purchaser and (ii) identifying the account(s) to which such Shares
are to be delivered.
1.02 Purchase and Sale. The Seller agrees to and shall sell to the Purchasers,
and the Purchasers agree to purchase from the Seller, those Shares subject to
each such Exercise Notice at the closing for such Shares as contemplated in
Section 1.04 below, on the terms set forth in this Agreement.
1.03 Purchase Price. The applicable purchase price of $60.00 per Share is
payable in immediately available United States funds at the closing for such
Shares in the manner provided in Section 1.04.
1.04 Closing. The Shares to be sold in any particular closing will be delivered
by the Seller via DTC-book entry transfers from the Seller to the accounts of
the Purchasers with Icahn & Co., Inc. and Xxxxxxx Xxxxx as set forth on Schedule
A hereto, against delivery of the applicable purchase price, in transactions to
be closed not later than the close of trading on the first NYSE trading day
following the date of delivery of the applicable Exercise Notice.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchasers,
as of the date hereof and as of the date of each closing, as follows:
2.01 Existence of the Seller. The Seller is duly organized, validly existing and
in good standing under the Laws of its jurisdiction of organization or
incorporation. The Seller has full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby, including without limitation to sell and
transfer (pursuant to this Agreement) the Shares.
2.02 Authority. This Agreement has been duly and validly executed and delivered
by the Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
2.03 Shares. The Shares are owned beneficially by the Seller free and clear of
all Liens, and at each closing the Seller will transfer to the Purchasers good
and valid title to the Shares purchased thereby, free and clear of all Liens.
2.04 No Conflicts. The execution and delivery by the Seller of this Agreement
does not, and the performance by the Seller of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the organizational documents of the Seller or of the
funds and accounts under its management; or
(b) conflict with or result in a violation or breach of any term or provision of
any Contract, Law or Order applicable to the Seller, the funds and accounts
under its management or any of the respective Assets and Properties.
2.05 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out on behalf of the Seller directly with
the Purchasers without the intervention of any person on behalf of the Seller in
such manner as to give rise to any valid claim by any person against the
Purchasers for a finder's fee, brokerage commission or similar payment.
2.06 Holdings. At all times after the execution of this Agreement and prior to
August 14, 2005, the Seller shall continue to hold beneficial ownership of the
Shares subject to the Option and one or more custodians for the Seller shall
hold record ownership thereof and the Seller shall not loan or sell, or permit
the loan or sale of, such Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers hereby represent and warrant to the Seller as follows:
3.01 Organization of the Purchasers. The Purchasers are duly organized, validly
existing and in good standing under the Laws of their jurisdictions of
organization or incorporation. The Purchasers have full authority to execute and
deliver this Agreement and to perform the Purchasers' obligations hereunder and
to consummate the transactions contemplated hereby, including, without
limitation, to buy (pursuant to this Agreement) the Shares.
3.02 Authority. This Agreement has been duly and validly executed and delivered
by the Purchasers and constitutes a legal, valid and binding obligation of the
Purchasers, enforceable against the Purchasers in accordance with its terms.
3.03 No Conflicts. The execution and delivery by the Purchasers of this
Agreement do not, and the performance by the Purchasers of their obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of their organizational documents; or
(b) conflict with or result in a violation or breach of any term or provision of
any Contract, Law or Order applicable to the Purchasers or any of their Assets
and Properties.
3.04 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by the Purchasers directly with the
Seller without the intervention of any Person on behalf of the Purchasers in
such manner as to give rise to any valid claim by any Person against the Seller
for a finder's fee, brokerage commission or similar payment.
ARTICLE IV
DEFINITIONS
4.01 Definitions.
(a) Defined Terms. As used in this Agreement, the following
defined terms have the meanings indicated below:
"Agreement" means this Stock Option Agreement, as the same
shall be amended from time to time.
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, and wherever situated),
including the goodwill related thereto, operated, owned or leased by such
Person.
"Contract" means any agreement, lease, license, evidence of
indebtedness, mortgage, indenture, security agreement or other contract.
"Exercise Notice" has the meaning ascribed to it in Section
1.01 of this Agreement.
"Seller" has the meaning ascribed to it in the forepart of
this Agreement.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States or any state, county, city or other political subdivision or of any
governmental or regulatory authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.
"Option" has the meaning ascribed to it in Section 1.01 of
this Agreement.
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, proprietorship,
other business organization, trust, union, association or governmental or
regulatory authority.
"Purchasers" has the meaning ascribed to it in the forepart of
this Agreement.
"Seller" has the meaning ascribed to it in the forepart of
this Agreement.
"Shares" has the meaning ascribed to it in the forepart of
this Agreement.
ARTICLE V
MISCELLANEOUS
5.01 Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof. Except as set forth herein, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
between the parties with respect to any securities of Xxxx-XxXxx Corporation.
5.02 Expenses. Each party will pay its own costs and expenses incurred in
connection with the negotiation, execution and closing of this Agreement and the
transactions contemplated hereby.
5.03 Waiver. Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
5.04 Amendment. This Agreement may be amended, supplemented or modified only by
a written instrument duly executed by or on behalf of each party hereto.
5.05 No Third Party Beneficiary. The terms and provisions of this Agreement are
intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person.
5.06 No Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other party hereto and any attempt to do so will be
void, except for assignments and transfers by operation of Law. Subject to the
preceding sentence, this Agreement is binding upon, inures to the benefit of and
is enforceable by the parties hereto and their respective successors and
assigns.
5.07 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
5.08 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom.
5.09 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New York applicable to a Contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
5.10 Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
5.11 Authority of Agent. The Seller hereby represents and
warrants to the Purchasers that the Seller has full authority to execute and
deliver this Agreement on behalf of the funds and accounts under its management
and that the Purchasers may deal with and take instructions from, and rely in
dealing with and taking instruction from, the Seller, in all respects with
respect to this Agreement and any matter arising in connection therewith.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
Purchasers:
HIGH RIVER LIMITED PARTNERSHIP
By: Xxxxxx Investments, LLC, general partner
By: Barberry Corp., sole member
By:________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
ICAHN PARTNERS LP
By: Icahn Onshore LP, general partner
By: CCI Onshore LLC, sole member
By:________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: Icahn Offshore LP, general partner
By: CCI Offshore LLC, sole member
By:________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Seller:
XXXX PARTNERS LLC
By:_________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Authorized Signatory
[Stock Option Agreement with Xxxx Partners LLC re Xxxx-XxXxx
dated February 14, 2005]
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