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EXHIBIT 4.10
SHARE PURCHASE AGREEMENT, dated as of March 30, 2001, among
Xxxxxxx Tire Group, Inc., a Delaware corporation (the "Company"),
the parties listed on Schedule I attached hereto (the "Investors").
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INTRODUCTION
The Investors desire to purchase from the Company, and the Company
desires to issue and sell to the Investors, 1,333,334 shares of Series C
Preferred Stock, par value $.01 per share (the "Series C Preferred Stock"), of
the Company upon the terms and subject to the conditions set forth in this
Agreement.
Accordingly, the parties agree as follows:
ARTICLE I
AUTHORIZATION AND SALE OF THE SHARES
Section 1.1. Authorization. The Company has authorized the issuance and
sale of 1,333,334 shares (the "Shares") of its Series C Preferred Stock at a
price of $9.00 per share on the terms and conditions set forth in this
Agreement. The Series C Preferred Stock shall have the rights, preferences and
privileges provided for in the Restated Certificate of Incorporation of the
Company, which shall be in the form attached as Exhibit A hereto (the
"Articles").
Section 1.2. Purchase and Sale of the Shares. Upon the terms and
subject to the conditions of this Agreement, at the Closing (as defined below)
the Company shall issue and sell to the Investors, and the Investors shall
purchase from the Company, the Shares for an aggregate purchase price of
$12,000,006 in cash (the "Purchase Price"), of which $10,500,003 shall be paid
by Charlesbank Equity Fund IV, Limited Partnership on the Closing Date and the
remainder shall be paid by the Investors (on a joint and several basis) within
five Business Days after the Closing Date. Subject to the foregoing, the amount
to be paid by and the number of such Shares to be issued to each Investor are as
set forth in Schedule I. Except as expressly provided in this Agreement, each
Investor's obligations under this Agreement (including without limitation to
purchase the Shares to be purchased by such Investor) shall be several and not
joint.
Section 1.3. Closing. The closing (the "Closing") of each purchase and
sale to the Investors of the Shares shall be held at the offices of Xxxxxxxxx &
Xxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. on
or prior to April 3, 2001, or at such other time or on such other date as may be
agreed to by the Investors and the Company. The date on which the first such
issuance and purchase of Shares occurs is referred to in this Agreement as the
"Closing Date."
Section 1.4. Closing Deliveries. At the Closing of each Investor's
purchase of Shares, (a) such Investor shall deliver to the Company, by wire
transfer of immediately available
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funds to an account designated in writing by the Company no less than two
business days prior to such Closing, the applicable Purchase Price and an
executed copy of this Agreement and (b) the Company shall issue and deliver to
such Investor certificates representing the Shares being purchased, registered
in the name of each Investor as applicable. The obligation of each Investor to
purchase such Investor's Shares is contingent on the fulfillment of each of the
conditions set forth in Article IV and the obligation of the Company to issue
and sell the Shares is contingent on the fulfillment of each of the conditions
set forth in Article V.
ARTICLE II
COMPANY REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Investors as follows:
Section 2.1. Organization and Standing. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. Each of the Company and its
Subsidiaries has all requisite power and authority necessary to enable it to own
and operate its properties and assets and to conduct its business as presently
conducted and proposed to be conducted. Each of the Company and its Subsidiaries
is duly qualified to do business as a foreign corporation and is in good
standing in any jurisdiction in which the failure to so qualify could reasonably
be expected to have a Material Adverse Effect. "Material Adverse Effect" means
any change in or effect on the Company or its business that is or could
reasonably be expected to be materially adverse to the business, operations,
properties, condition (financial or otherwise), results of operations, assets or
liabilities of the Company and its Subsidiaries, taken as a whole.
Section 2.2. Authority; Valid and Binding Agreements. The Company has
all requisite corporate power and authority to execute and deliver this
Agreement and the Articles and, upon the filing of the Articles with the
Secretary of State of Delaware, to issue and sell the Shares hereunder and to
consummate the other transactions contemplated hereby. The execution, delivery
and performance by the Company of this Agreement and the Articles and all
documents, certificates and instruments to be executed by the Company in
connection therewith and, upon the filing of the Articles with the Secretary of
State of Delaware, the authorization, issuance, sale and delivery of the Shares,
have been duly authorized by all requisite corporate action on the part of the
Company and its stockholders. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally and general principles of equity.
Section 2.3. Conflicts; Consents. The execution, delivery and
performance by the Company of this Agreement and the Articles and the
consummation of the transactions contemplated hereby and thereby and compliance
with the terms hereof and thereof does not and will not breach, conflict with,
or result in any violation of or default (with or without notice or lapse of
time or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of any benefit under, or result in
the creation or imposition of any Lien of any nature whatsoever upon any of the
properties or assets of the Company or any of its
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Subsidiaries under, (i) any material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries or any of their respective properties or assets may be bound or
affected, (ii) any provision of the constitutive or governing documents of the
Company or any of its Subsidiaries or (iii) assuming that the representations of
the Investors set forth in Article III are correct, any Legal Requirement
applicable to the Company or any of its Subsidiaries or any of their respective
properties or assets. Assuming that the representations of the Investors set
forth in Article III are correct and except for the filing of the Articles, no
consent, approval, order, license, permit or authorization of, or notification,
registration, declaration or filing with, any Governmental Authority or any
other Person is required to be obtained or made by or with respect to the
Company or any of its Subsidiaries in connection with the execution, delivery
and performance by the Company of this Agreement, the issuance and sale of the
Shares, or the consummation of the transactions contemplated thereby except for
consents, approvals, orders, licenses, permits, authorizations, notifications,
registrations, declarations or filings which have been obtained or made or the
failure to obtain or make which could not reasonably be expected to have a
Material Adverse Effect.
Section 2.4. Capital Stock. (a) After giving effect to the filing of
the Articles with the Secretary of State of Delaware, the authorized capital
stock of the Company will consist of 15,000,000 shares of Common Stock (as
defined below) and 1,344,834 shares of Preferred Stock, $.01 par value (the
"Preferred Stock"). On the date hereof, 5,271,917 shares of Common Stock, $.01
par value (the "Common Stock"), and 11,500 shares of Preferred Stock were issued
and outstanding. Upon the filing of the Articles with the Secretary of State of
Delaware, the Shares will have been duly authorized and, when issued in
accordance with this Agreement, the Shares (i) will be validly issued, fully
paid and non-assessable, (ii) will have the rights, preferences and privileges
described in the Articles and (iii) will not have been issued in violation of,
and will not be subject to, any preemptive or subscription rights and will not
result in the antidilution provisions of any security of the Company becoming
applicable.
(b) The Shares, when issued and delivered in accordance with this
Agreement, will be free and clear of any Liens and the Investors will have good
title thereto.
(c) Except as set forth on Schedule 2.4(c), there are no outstanding
warrants, options, rights, other securities, agreements, subscriptions or other
commitments, arrangements or undertakings pursuant to which the Company is or
may become obligated to issue, deliver or sell, or cause to be issued, delivered
or sold, any additional capital stock or other securities of the Company or to
issue, grant, extend or enter into any such warrant, option, right, security,
agreement, subscription or other commitment, arrangement or undertaking. Except
as set forth on Schedule 2.4(c), there are no outstanding options, rights, other
securities, agreements or other commitments, arrangements or undertakings
pursuant to which the Company is or may become obligated to redeem, repurchase
or otherwise acquire or retire any capital stock or other securities of the
Company, or any securities of the type described in this Section 2.4(c), which
are presently outstanding or may be issued in the future. Except as set forth on
Schedule 2.4(c), there are no bonds, debentures, notes or other indebtedness or
securities of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
stockholders of the Company may vote.
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(d) All issued and outstanding shares of capital stock or membership
interests of the Company's Subsidiaries have been duly authorized, were validly
issued, are fully paid and non-assessable and subject to no preemptive rights
and are directly or indirectly owned beneficially and of record by the Company,
free and clear of all Liens, and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock).
(e) Assuming that the representations and warranties of the Investors
set forth in Section 3.2 and 3.3 are true and correct, the offering, issuance
and delivery of the Shares are exempt from the registration requirements of the
Securities Act, and it is not necessary to make or obtain any filings,
registrations, qualifications, notifications or consents or approvals of or with
any Governmental Authority (including without limitation under the Securities
Act, the Exchange Act, the Investment Company Act of 1940, as amended, or any
state securities or "blue sky" laws) in connection therewith.
Section 2.5. SEC Reports. The Company has previously furnished or made
available to the Investors true and complete copies of all reports (the "SEC
Reports") filed by the Company and its Subsidiaries with the Securities and
Exchange Commission (the "SEC") through and including the date of this
Agreement. Each of the balance sheets (including the related notes) included in
the Company SEC Reports presents fairly, in all material respects, the
consolidated financial position of the Person (consolidated with its
Subsidiaries, as applicable) to which it relates as of the date thereof, and
each of the other related statements (including the related notes) included in
the Company SEC Reports presents fairly, in all material respects, the results
of operations and changes in financial position of the Person (consolidated with
its Subsidiaries, as applicable) to which it relates for the period or as of the
date set forth therein, all in conformity with generally accepted accounting
principles consistently applied during the periods involved, except as otherwise
noted therein and subject, in the case of the unaudited interim financial
statements, to normal year-end adjustments and any other adjustments described
therein. Each Company SEC Report, as of its date (as amended through the date of
this Agreement), complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
applicable rules and regulations thereunder.
Section 2.6 Litigation. There are no suits, actions, claims,
arbitrations or other legal, administrative or regulatory proceedings or
investigations, whether at law or in equity, or before or by any Governmental
Authority pending or, to the knowledge of the Company, threatened by or against
or affecting the Company or any of its Subsidiaries or any of their respective
properties or assets, in each case, which could reasonably be expected to have a
Material Adverse Effect.
Section 2.7. Compliance with Applicable Laws. The Company and its
Subsidiaries and their respective properties, assets, operations and business
are in compliance in all material respects with all applicable Legal
Requirements, including without limitation laws and regulations relating to the
environment, hazardous materials and occupational safety and health, except for
such instances of noncompliance as could not individually or in the aggregate
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be reasonably expected to have a Material Adverse Effect. Each of the Company
and its Subsidiaries has obtained and has in effect all material permits,
licenses and other authorizations which are required with respect to the
operation of its business and the ownership of its assets. Each of the Company
and its Subsidiaries is in full compliance in all material respects with all
terms and conditions of such permits, licenses and authorizations, no proceeding
is pending or, to the knowledge of the Company, threatened, to revoke or limit
any thereof.
Section 2.8. Brokers. No agent, broker, investment banker, Person or
firm acting on behalf of the Company or under the authority of the Company is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee directly or indirectly from any of the parties hereto in connection
with any of the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR
Each of the Investors hereby represents and warrants to the Company,
severally and not jointly, as follows:
Section 3.1. Organization and Authority. Such Investor is a corporation
or limited liability company or limited partnership duly organized, validly
existing and in good standing, if applicable, under the laws of its jurisdiction
of organization. Such Investor has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by such Investor of this Agreement and the
consummation by such Investor of the transactions contemplated hereby has been
duly authorized by all requisite corporate action on the part of such Investor.
This Agreement constitutes the valid and binding obligation of such Investor,
enforceable against such Investor in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of credits' rights
generally and general principles of equity.
Section 3.2. Securities Act. Such Investor is acquiring the Shares for
investment only for its own account, not as a nominee or agent, and not with a
view to any public distribution of all or any portion thereof.
Section 3.3. Accredited Investor. Such Investor is an "accredited
investor" as such term is defined in Rule 501(a) promulgated under the
Securities Act.
Section 3.4. Brokers. No agent, broker, investment banker, Person or
firm acting on behalf of such Investor or under the authority of such Investor
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee directly or indirectly from any of the parties hereto in
connection with any of the transactions contemplated hereby.
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Section 3.5. Experience. Such Investor is experienced in evaluating and
investing in companies such as the Company. Such Investor has substantial
experience in investing in and evaluating private placement transactions of
securities in companies similar to the Company and is capable of evaluating the
risks and merits of its investment in the Company and has the capacity to
protect its own interests.
Section 3.6. Restricted Securities. Such Investor acknowledges that,
because they have not been registered under the Securities Act or any state
securities laws, the Shares it is purchasing must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. Such Investor is familiar with the provisions of Rule
144 promulgated under the Securities Act and the resale limitation imposed
thereby and by the Securities Act. Such Investor understands that no public
market now exists for the Shares and that it is uncertain whether a public
market will ever exist for the Shares.
Section 3.7. No Conflicts. The execution and delivery of this Agreement
by such Investor does not and will not violate any Legal Requirement or
provision of any indenture, agreement or other instrument applicable to such
Investor, except in each case for violations which could not reasonably be
expected to have a material adverse effect on such Investor's ability to
execute, deliver and perform this Agreement and consummate the transactions
contemplated hereby.
ARTICLE IV
CONDITIONS OF THE INVESTORS' OBLIGATIONS
The obligation of the Investors to purchase the Shares is subject to
the satisfaction (or waiver by the Investors) as of the Closing Date of the
following conditions:
Section 4.1. Representations and Warranties; Covenants. The
representations and warranties of the Company made in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing Date
with the same effect as if made at and as of the Closing Date, except to the
extent such representations and warranties expressly relate to an earlier time.
The Company shall have performed each of the covenants and agreements of the
Company contained in this Agreement required to be performed at or prior to the
Closing Date.
Section 4.2. Consents and Approvals. The Company shall have obtained or
made all consents, approvals, orders, licenses, permits and authorizations of,
and registrations, declarations and filings with, any Governmental Authority or
any other Person (if any) required to be obtained or made by or with respect to
the Company in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated thereby.
Section 4.3. No Legal Bar. No action or proceeding by or before any
Governmental Authority shall be pending or threatened challenging or seeking to
restrain or prohibit the transactions contemplated by this Agreement. No Legal
Requirement preventing the transactions contemplated by this Agreement shall be
in effect.
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Section 4.4. Restated Certificate of Incorporation. The Articles shall
have been approved by all requisite Board and stockholder action on the part of
the Company, filed with and accepted by the Secretary of State of the State of
Delaware and not further amended in any respect except as consented to by the
Investors in writing.
Section 4.5. Closing Documents. The Company shall have delivered to the
Investors the following:
(a) a certificate of an authorized officer of the Company,
dated the Closing Date, to the effect that the conditions specified in
Section 4.1 and 4.2 have been satisfied or waived;
(b) a certificate of the Secretary or an Assistant Secretary
of the Company, dated as of the Closing Date, certifying as to attached
copies of the Articles, the By-laws of the Company and resolutions
adopted by the Board of Directors of the Company and its stockholders
authorizing the Articles, the execution and delivery by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated thereby, including the issuance and sale of the Shares;
(c) a copy of the Articles, as filed with the Secretary of
State of the State of Delaware;
(d) a certificate of the Secretary of State of the State of
Delaware, dated a recent date, certifying that the Company is in good
standing in the State of Delaware; and
(e) such other certificates or documents as the Investors or
their counsel may reasonably request relating to the transactions
contemplated hereby.
ARTICLE V
CONDITIONS OF COMPANY'S OBLIGATIONS
The obligation of the Company to issue and sell the Shares to the
Investors is subject to the satisfaction (or waiver by the Company) as of the
Closing Date of the following conditions:
Section 5.1. Representations and Warranties. The representations and
warranties of the Investors made in this Agreement shall be true and correct as
of the date of this Agreement and as of the Closing Date with the same effect as
if made at and as of the Closing Date.
Section 5.2. No Legal Bar. The Company shall have obtained all
necessary authorizations, approvals, blue sky law permits and qualifications, or
secured exemptions therefrom, required by, and made all necessary filings and
registrations with, any Governmental Authority in connection with the offer and
sale of the Shares and the consummation of the transactions contemplated by this
Agreement. No action or proceeding by or before any
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Governmental Authority shall be pending or threatened challenging or seeking to
restrain or prohibit the transactions contemplated by this Agreement. No Legal
Requirement preventing the transactions contemplated by this Agreement shall be
in effect.
Section 5.3. Purchase by Each Investor. Each Investor shall have
purchased the applicable number of Shares to be purchased by such Investor in
accordance with the terms of this Agreement.
ARTICLE VI
COVENANTS
The Company covenants and agrees that:
Section 6.1. Use of Proceeds. The proceeds of the sale of the Shares
shall be used for ongoing working capital needs, capital expenditures and
general corporate purposes.
Section 6.2. Preservation of Corporate Existence. The Company shall
preserve and maintain, and cause its Subsidiaries (other than Winston Tire
Company) to preserve and maintain, in full force and effect its corporate
existence and good standing under the laws of its jurisdiction of incorporation
and shall use its best efforts to preserve and maintain in full force and effect
all material rights, privileges, qualifications, licenses and franchises
necessary in the normal conduct of its business.
Section 6.3. Public Announcements. The Company and the Investors shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated hereby, and
shall not issue any such press release or make any such public statement that
uses the name of any Investor or any affiliate thereof without the prior written
consent of each such Investor and affiliate whose name is proposed to be used.
Section 6.4. Redemption of Series C Preferred Stock.
(a) Redemption Right. Subject to the restrictions contained in Section
6.4(e), if, at any time after the Closing Date a Change of Control (as defined
below) occurs, the Company shall, within 10 Business Days after such occurrence,
send notice of such occurrence to the holders of the Series C Preferred Stock.
If, within 10 Business Days of such notice, a holder of outstanding shares of
Series C Preferred Stock sends notice to the Company specifying that such holder
thereby requests that the Company redeem all of the outstanding shares of Series
C Preferred Stock held by such holder, the Company shall redeem, out of the
assets of the Company legally available therefor, all such shares within 30
Business Days of the Company's receipt of all such requests (the "Change of
Control Redemption Date") at a price per share equal to (x) the Series C
Liquidation Preference then in effect plus (y) the amount of all accrued and
unpaid Series C Dividends on such share through and including the date of
redemption.
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(b) Change of Control Defined. "Change of Control" means such time as
(i) any person or "group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) other than the Principal Shareholders
(as defined below) or Kelly-Springfield (as defined in the Articles) is or
becomes the beneficial owner, directly or indirectly, of outstanding shares of
capital stock of the Company, entitling such person or persons to exercise 50%
or more of the total votes entitled to be cast at a regular or special meeting,
or by action by written consent, of stockholders of the Company (the term
"beneficial owner" shall be determined in accordance with Rule 13d-3,
promulgated by the Securities and Exchange Commission under the Exchange Act),
provided, however, that a person or group shall not be deemed to be the
"beneficial owner" of capital stock of the Company solely by reason of such
person or group having entered into a stockholders or similar agreement with a
Principal Shareholder, (ii) a majority of the Board of Directors shall consist
of persons other than Continuing Directors (the term "Continuing Director" shall
mean any member of the Board of Directors immediately following the Closing
Date, any member of the Board of Directors elected by Kelly-Springfield pursuant
to Section 6.4(c) of the Articles and any other member of the Board of Directors
who shall be recommended or elected to succeed or become a Continuing Director
by a majority of Continuing Directors who are then members of the Board of
Directors), (iii) the stockholders of the Company shall have approved a
recapitalization, reorganization, merger, consolidation or similar transaction,
in each case, with respect to which all or substantially all the persons who
were the respective beneficial owners of the outstanding shares of capital stock
of the Company immediately prior to such recapitalization, reorganization,
merger, consolidation or similar transaction will beneficially own, directly or
indirectly, less than 50% of the combined voting power of the then outstanding
shares of capital stock of the Company resulting from such recapitalization,
reorganization, merger consolidation or similar transaction; or (iv) the
stockholders of the Company shall have approved the sale or other disposition of
all or substantially all the assets of the Company in one transaction or in a
series of related transactions to a person not owning or controlling, or any
entity not owned or controlled by the holders of, directly or indirectly, 50% or
more of the combined voting power of the outstanding shares of capital stock of
the Company immediately prior to such disposition. "Principal Shareholders"
means Charlesbank Equity Fund IV, Limited Partnership, Charlesbank Equity Fund
IV GP, Limited Partnership, Charlesbank Capital Partners, LLC, any other funds
managed by Charlesbank Capital Partners, LLC, any person that, as of the Closing
Date, is a limited partner of Charlesbank Equity Fund IV, Limited Partnership,
members of senior management of the Company that were employees of the Company
as of the Closing Date, and any corporation, partnership, limited liability
company or other entity a majority of the voting capital stock or partnership,
membership or equity interests of which is owned by any of the foregoing.
(c) Redemption Procedures. Each redemption of shares of Series C
Preferred Stock under this Section 6.4 shall be deemed to have been effected on
the applicable Change of Control Redemption Date. On the applicable Change of
Control Redemption Date, each holder of shares of Series C Preferred Stock to be
redeemed shall deliver to the Company a certificate or certificates representing
the shares of Series C Preferred Stock to be redeemed, duly endorsed and in
proper form for transfer, against payment in full by wire transfer of
immediately available funds in U.S. dollars to an account designated in writing
by such holder of an amount per share
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equal to (x) the Series C Liquidation Preference then in effect plus (y) the
amount of all accrued and unpaid Series C Dividends on such share through and
including the date of redemption.
(d) Funds Insufficient to Effect Redemptions. If the Company shall not
have assets or funds legally available for the redemption of all of the shares
of Series C Preferred Stock required to be redeemed under this Section 6.4, the
Company shall redeem ratably from the holders of the Series C Preferred Stock
such number of shares as it shall have funds legally available therefor and
shall redeem the remainder of such shares on the earliest practicable date(s) as
assets or funds become legally available therefor. Any shares of Series C
Preferred Stock not so redeemed shall remain issued and outstanding for all
purposes until the date of actual redemption by the Company.
(e) Limitations on Redemption. Notwithstanding any contrary provision
of this Agreement, for so long as any shares of Series A Preferred Stock or
Series B Preferred Stock are outstanding, the Company shall not be obligated to
make any redemption payments under this Section 6.4 or otherwise in respect of
the Series C Preferred Stock. Notwithstanding any contrary provision of this
Agreement, from and after the date on which no shares of Series A Preferred
Stock or Series B Preferred Stock are outstanding, the Company shall not be
obligated to make any redemption payments under this Section 6.4 or otherwise in
respect of the Series C Preferred Stock unless due provision can be made for the
full amount of any dividend or liquidation preference or redemption payment (if
any) payable to which holders of any Senior Stock may be entitled under the
Articles. In addition, notwithstanding anything to the contrary in this
Agreement, (i) so long as any amounts are outstanding under any Other Documents
(as defined below) or any commitments to lend under the Other Documents have not
been terminated, the Company shall not make payment in respect of any redemption
permitted or otherwise required by this Section 6.4 to the extent that the
making of such payment would breach, conflict with, or result in any violation
of or default or event of default (with or without notice or lapse of time or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of any benefit under, or result in
the creation or imposition of any lien or encumbrance of any nature whatsoever
upon any of the properties or assets of the Company or any of its Subsidiaries
under, or result in the Series C Preferred Stock constituting "Disqualified
Stock" as defined under, any provision of the Other Documents; and (ii) so long
as any amount is outstanding under the May Indenture and/or the December
Indenture, the Company shall not make payment in respect of any redemption
permitted or otherwise required by this Section 6.4 until after the Company has
complied with the provisions of Sections 4.06 and 4.09 of the May Indenture
and/or the December Indenture, as applicable, it being understood and agreed
that if any event or series of events constituting a Change of Control hereunder
shall not also constitute a "Change of Control" under the May Indenture and/or
the December Indenture, as applicable, such event or series of events shall be
deemed not to constitute a Change of Control hereunder and the Company shall not
be obligated to make any redemption payments under this Section 6.4 or otherwise
in respect of the Series C Preferred Stock in connection therewith. "Other
Documents" means (i) the Amended and Restated Loan and Security Agreement, dated
as of March 6, 2000, between and among the Company, Winston Tire Company, The
Speed Merchant, Inc., and California Tire Company, as borrowers, the financial
institutions party thereto (the "Lenders") and Fleet Capital Corporation, as
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Administrative Agent (the "Administrative Agent"), (ii) the Indenture, dated as
of May 15, 1998, between and among the Company, the Subsidiary Guarantors party
thereto and First Union National Bank, as Trustee (the "May Indenture"), (iii)
the Indenture, dated as of December 1, 1998, between and among the Company, the
Subsidiary Guarantors party thereto and First Union National Bank, as Trustee
(the "December Indenture"), (iv) all notes, mortgages, security documents,
guaranties and other agreements, documents and instruments entered into in
connection therewith, in each case, as extended, amended, modified, supplemented
and/or restated from time to time in accordance with its terms, including any
replacement agreement for any thereof and any refinancing of the debt incurred
under any thereof, which refinancing may result in a greater principal amount
outstanding in connection therewith. Any determination made by the Board of
Directors, in its sole judgment, that the making of any payment pursuant to this
Section 6.4 would breach, conflict with, or result in any violation of or
default or event of default (with or without notice or lapse of time or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to the loss of any benefit under, or result in the creation or
imposition of any lien or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company or any of its subsidiaries under, or result
in the Series C Preferred Stock constituting "Disqualified Stock" as defined
under, any of the Other Documents, shall be conclusive and binding on the
Company and all holders of Series C Preferred Stock.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service or sent by facsimile (a) if to an Investor, to the address or facsimile
number set forth opposite such Investor's name on Schedule I and (b) if to the
Company, to:
Xxxxxxx Tire Group, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
or to such other address as any party hereto shall have communicated to
the other parties hereto by notice in accordance with this provision. All
notices and other communications given to any party in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt if delivered by hand or overnight courier service or sent by facsimile
in each case delivered or sent (properly addressed) to such party as provided in
this Section 7.1 or in accordance with the latest unrevised direction from such
party given in accordance with this Section 7.1.
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Section 7.2. Survival of Agreement. All representations and warranties
made by the Company in this Agreement and in the certificates or other documents
prepared or delivered in connection with the Closing shall be considered to have
been relied upon by the Investors and shall survive the execution and delivery
of this Agreement or such certificate or other document, the Closing, the sale
and purchase of the Shares and any disposition thereof, regardless of any
investigation made by any Investor or on its behalf, for a period of two years
from and after the Closing Date.
Section 7.3. Assignment. This Agreement and the rights, interests and
obligations hereunder shall not be assignable or transferable by either party
without the prior written consent of the other party hereto; provided that any
Investor may assign, in its sole discretion, any or all of its rights, interests
and obligations under this Agreement to any of its Affiliates. Notwithstanding
the foregoing, it is acknowledged and agreed that this Agreement and all of the
rights (but none of the obligations) of the Company hereunder will be assigned
by the Company to the Administrative Agent as security for the benefit of the
Lenders. Each party to this Agreement expressly acknowledges and consents to
such assignment and agrees that all of its representations, warranties and
covenants hereunder shall be for the benefit of and may be enforced by the
Administrative Agent for the benefit of the Lenders. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns.
Section 7.4. No Third-Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto and their respective successors and permitted
assigns and nothing expressed or implied in this Agreement shall give or be
construed to give to any Person, other than the parties hereto and such
successors and assigns, any legal or equitable rights hereunder, except that the
Administrative Agent (for the benefit of the Lenders) is intended to be a third
party beneficiary of this Agreement.
Section 7.5. Expenses. The Company shall pay or reimburse the Investors
for all reasonable costs and expenses incurred in connection with the
negotiation, execution and delivery of this Agreement, including the reasonable
fees and expenses of attorneys, financial advisors and accountants.
Section 7.6. Waivers; Amendment. No failure or delay of the Investors
or the Company in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Investors and the Company
hereunder are cumulative and are not exclusive of any rights or remedies which
the Investors or the Company would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be effected in a written agreement
signed by the Company and the Investors. Any such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances.
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Section 7.7. Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) constitutes the entire agreement between the parties
relative to the subject matter hereof and thereof. Any previous agreement among
the parties with respect to the subject matter hereof is superseded by this
Agreement.
Section 7.8. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY OF THE TRANSACTION DOCUMENTS,
THE SHARES OR THE CONVERSION SHARES.
Section 7.9. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
Section 7.10. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement, and shall become
effective when one or more such counterparts have been signed by each of the
parties and delivered to the other party.
Section 7.11. Headings, Definitions. (a) Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement. Except as otherwise expressly provided in this
Agreement, the following rules of interpretation apply to this Agreement: (i)
the singular includes the plural and the plural includes the singular; (ii) "or"
and "any" are not exclusive and "include" and "including" are not limiting;
(iii) a reference to any agreement or other contract includes permitted
supplements and amendments; (iv) a reference to a law includes any amendment or
modification to such law and any rules or regulations issued thereunder; (v) a
reference to a person includes its permitted successors and assigns; and (vi) a
reference in this Agreement to an Article, Section, Annex, Exhibit or Schedule
is to the Article, Section, Annex, Exhibit or Schedule of this Agreement.
(b) As used in this Agreement, the following terms shall have the
meanings specified below:
"Affiliate" means, when used with respect to a specified Person, a
limited or general partner of such Person or another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified.
"Business Day" shall have the meaning given in the Articles.
"Control" (including, with its correlative meanings, "controlled by"
and "under common control with") means possession, directly or indirectly, of
power to direct or cause the
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direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Governmental Authority" means any government, court, administrative
agency or commission or other governmental agency, authority or instrumentality,
domestic or foreign, of competent jurisdiction.
"Legal Requirement" means any constitution, act, statute, law,
ordinance, treaty, rule, regulation or official interpretation of, or judgment,
injunction, order, decision, decree, license, permit or authorization issued by,
any Governmental Authority.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, charge, security interest, easement, covenant, right of
way, restriction, equity or encumbrance of any nature whatsoever in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, Governmental Authority or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Senior Stock" shall have the meaning given in the Articles.
"Series A Preferred Stock" shall have the meaning given in the
Articles.
"Series B Preferred Stock" shall have the meaning given in the
Articles.
"Series C Dividends" shall have the meaning given in the Articles.
"Series C Liquidation Preference" shall have the meaning given in the
Articles.
"Subsidiary" of any Person means any firm, corporation, partnership,
limited liability company, trust, joint venture or other entity more than 50% of
whose outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are (or in the case of a
Person which does not have outstanding shares or securities, but more than 50%
of whose ownership interest representing the right to make decisions for such
other entity is) now or hereafter owned or controlled, directly or indirectly,
by such Person, but such firm, corporation, partnership, limited liability
company, trust, joint venture or other entity shall be deemed to be a Subsidiary
only so long as such ownership or control exists.
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Section 7.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 7.14. CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF NEW YORK STATE SITTING IN THE
COUNTY OF NEW YORK OR ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING
IN THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE SHARES OR THE TRANSACTIONS CONTEMPLATED HEREBY. NONE OF THE
PARTIES HERETO MAY MOVE TO (I) TRANSFER ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH NEW YORK COURT OR FEDERAL COURT TO ANOTHER JURISDICTION, (II)
CONSOLIDATE ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH NEW YORK COURT
OR FEDERAL COURT WITH A SUIT, ACTION OR PROCEEDING IN ANOTHER JURISDICTION OR
(III) DISMISS ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH NEW YORK COURT
OR FEDERAL COURT FOR THE PURPOSE OF BRINGING THE SAME IN ANOTHER JURISDICTION.
THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE SHARES OR THE TRANSACTIONS CONTEMPLATED HEREBY
IN ANY NEW YORK COURT SITTING IN THE COUNTY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE SOUTHERN DISTRICT OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
NOTICE IN THE MANNER SPECIFIED IN SECTION 7.1.
Section 7.15. Restrictive Legends. The certificates evidencing the
Shares to the extent applicable will bear legends reading substantially as
follows (unless and until such legend is no longer required) in addition to any
other legends required by any other agreement or applicable Legal Requirement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH THAT ACT AND APPLICABLE
STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR IN A TRANSACTION
WHICH QUALIFIES AS AN EXEMPT TRANSACTION UNDER SUCH ACT AND THE RULES
AND REGULATIONS THEREUNDER.
THE COMPANY WILL FURNISH THE HOLDER OF THIS CERTIFICATE INFORMATION
CONCERNING THE DESIGNATION, RELATIVE RIGHTS, PREFERENCES AND
LIMITATIONS APPLICABLE TO EACH CLASS OR SERIES OF SHARES, INCLUDING THE
LIQUIDATION PREFERENCES AND THE VOTING AND CONVERSION RIGHTS OF THE
SERIES C PREFERRED STOCK EVIDENCED HEREBY, UPON WRITTEN REQUEST AND
WITHOUT CHARGE."
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Section 7.16. Certain Acknowledgments by The 1818 Mezzanine Fund. The
1818 Mezzanine Fund, L. P. (the "Fund") hereby acknowledges and agrees that (i)
the execution and delivery of this Agreement by the Fund and the Fund's purchase
of the Shares to be purchased by it hereunder constitute the exercise in full of
any and all subscription rights, preemptive rights or similar rights of the Fund
to acquire shares of Series C Preferred Stock, including without limitation
pursuant to Section 4.1(a) of the Warrantholder Agreement, dated as of May 21,
1999 (the "Warrantholder Agreement"), between and among the Company, the Fund
and Charlesbank Equity Fund IV, Limited Partnership, and (ii) the Fund has
received sufficient notice of the transactions contemplated by this Agreement
and waives any rights under the Warrantholder Agreement or otherwise to receive
any other notice with respect thereto. The Fund acknowledges and agrees that the
Shares purchased by it under this Agreement shall constitute "Capital Stock" (as
defined in the Warrantholder Agreement) for all purposes under the Warrantholder
Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Share Purchase
Agreement as of the day and year first above written.
XXXXXXX TIRE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President & CEO
CHARLESBANK EQUITY FUND IV, LIMITED PARTNERSHIP
By: CHARLESBANK EQUITY FUND IV GP,
LIMITED PARTNERSHIP, ITS GENERAL PARTNER
By: CHARLESBANK CAPITAL PARTNERS, LLC,
ITS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
Managing Director
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
Managing Director
THE 1818 MEZZANINE FUND, L. P.
By: XXXXX BROTHERS XXXXXXXX & CO.,
ITS GENERAL PARTNER
By: /s/ ????????????????????
-----------------------------------------
Name:
Title:
18
SCHEDULE I
Number of Shares of Amount of
Investor Series A Preferred Stock Investment
-------- ------------------------ ----------
Charlesbank Equity Fund IV,
Limited Address for notices: 1,166,667 $10,500,003
The 1818 Mezzanine Fund, L. P. 166,667 $1,500,003
and Charlesbank Equity Fund IV,
Limited Partnership
(jointly and severally)
Address for notices:
--------- -----------
Total 1,333,334 $12,000,006
19
EXHIBIT A
FORM OF RESTATED CERTIFICATE OF INCORPORATION
20
SCHEDULE 2.4(c)
CAPITAL STOCK
21
SCHEDULE 6.1
USE OF PROCEEDS
