EXHIBIT 10.1
TERMINATION AGREEMENT
DATE: April [__], 2003 [Effective Date]
TO: XXXXXX XXXXXXX CORPORATION ("Xxxxxx")
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Vice President and Treasurer
FROM: CREDIT LYONNAIS NEW YORK BRANCH ("CLNY")
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
SUBJECT: Termination of two Share Swap Transactions having effective
dates of March 15, 2002 and August 12, 2002 each as between
Xxxxxx and CLNY (collectively, the "Transactions")
WHEREAS, Credit Lyonnais purchased 1,006,500 shares (the "Hedge Shares") of
Xxxxxx common stock in market transactions at the inception of the Transactions
to hedge its exposure under the Transactions;
WHEREAS, pursuant to the terms of the Transactions, the early termination of the
Transactions requires Xxxxxx to register the Hedge Shares for resale under the
Securities Act of 1933, as amended; and
WHEREAS, Xxxxxx filed a Registration Statement on Form S-3 with the Securities
and Exchange Commission (the "SEC") on [April __, 2003] (the "Registration
Statement"), which Registration Statement identifies Credit Lyonnais as the
selling shareholder thereunder.
NOW, THEREFORE, the parties hereto wish to set forth the terms and conditions
upon which the Transactions will be terminated. The purpose of this termination
agreement (this "Termination Agreement") is to confirm the terms and conditions
upon which the Xxxxxx and CLNY agree to terminate the Transactions.
Capitalized terms used herein but not defined have the meaning set forth in the
Transactions, and to the extent not therein defined, as defined in the Selling
Shareholder Agreement among Xxxxxx, Credit Lyonnais and Credit Lyonnais
Securities (USA) Inc.
1. Termination of the Transactions:
(a) Sale by Credit Lyonnais. Commencing on the Exchange Business Day on
which the SEC declares the Registration Statement effective (the "Effective
Date"), Credit Lyonnais will use good faith and commercially reasonable
efforts to sell the Hedge Shares in the manner indicated under the caption
"Plan of Distribution" in the Prospectus. Credit Lyonnais will continue
such sales until the Exchange Business Day on which the aggregate proceeds
of such sales equals $[______] plus the cumulative Additional Amounts for
each calendar day from and including the Effective Date to and including
the Termination Date (as defined herein) (the "Termination Amount", and
the number of Hedge Shares so sold, the "Sold Hedge Shares"). This sale
shall take place on one or more Exchange Business Days as Credit Lyonnais
may determine in its good faith and commercially reasonable discretion.
The "Additional Amount" for each date of determination, commencing on the
Effective Date, equals the aggregate Fixed Amounts less the aggregate
proceeds of the sales of the Hedge Shares received by Credit Lyonnais as of
the end of such day multiplied by ___% divided by 360.
(b) Delivery of Remaining Hedge Shares. To the extent the Sold Hedge Shares
are less than the Hedge Shares, Credit Lyonnais will deliver the remaining
Hedge Shares (the "Remaining Hedge Shares") to Xxxxxx within three Exchange
Business Days of the final sale of the Sold Hedge Shares, free and clear
without any further consideration.
(c) Payment of Shortfall by Xxxxxx. To the extent Credit Lyonnais sells all
the Hedge Shares and the proceeds are less than the Termination Amount,
Xxxxxx shall deliver to CLNY, within three Business Days of notice, USD in
an amount equal to the Termination Amount less the aggregate proceeds of
the sales of the Hedge Shares.
(d) Market Disruption Event; Updates to the Prospectus. Upon the occurrence
of (i) a Market Disruption Event, (ii) any event or condition which makes
it necessary to amend or supplement the Registration Statement or the
related prospectus as contemplated by Section 3(c) of the Selling
Shareholder Agreement or (iii) an order by Xxxxxx to halt sales of Hedge
Shares pursuant to Section 5 of the Selling Shareholder Agreement, Credit
Lyonnais shall immediately cease its sales of the Hedge Shares, and shall
resume such sales on the first succeeding Exchange Business Day on which
there is no such event.
For this Agreement, a "Market Disruption Event" means the occurrence or
existence at any time during the regular trading session on the Exchange on
any Exchange Business Day of any suspension of or limitation imposed on
trading (by
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reason of movements in price exceeding limits permitted by the relevant
Exchange or otherwise) in the Shares on the Exchange.
2. Termination Date. When the final payments or deliveries contemplated in
Section 1 above have been fully and finally made (the "Termination Date")
CLNY and Xxxxxx hereby agree that, as of the Termination Date: (a) the
Transactions and all of the respective rights and obligations of CLNY and
Xxxxxx thereunder are cancelled and terminated; (b) CLNY releases and
discharges Xxxxxx from and agrees not to make any claim against Xxxxxx with
respect to any obligations of Xxxxxx arising and to be performed in
connection with the Transactions; and (c) Xxxxxx releases and discharges
CLNY from, and agrees not to make any claim against CLNY with respect to
any obligations of CLNY arising and to be performed in connection with the
Transactions. Each of CLNY and Xxxxxx represents and acknowledges to the
other that on and after the Termination Date, no amounts or deliveries are
owed by CLNY or Xxxxxx to the other with respect to the Transactions.
3. Representations and Warranties. Each of CLNY and Xxxxxx hereby represents
and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization;
(b) it has full power, authority and right to execute, deliver and perform
its duties and obligations under this Termination Agreement and has taken
all necessary action to authorize the execution, delivery and performance
by it of this Termination Agreement;
(c) the execution and delivery of this Termination Agreement by it and its
performance of and compliance with the terms of this Termination Agreement
will not constitute a default under, or result in the breach or
acceleration of, any material contract, agreement or other instrument to
which it is a party or which may be applicable to it or any of its assets
and to the extent it is a corporation, will not violate its certificate of
incorporation, association or other constituent documents or by-laws;
(d) this Termination Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligations of it, enforceable
in accordance with its terms, except as enforcement may be limited by the
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights of creditors generally and general principles of
equity;
(e) it is not in violation, and the execution and delivery of this
Termination Agreement by it and its performance and compliance with the
terms hereof will not constitute a violation, of any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over it or its properties, which
violation would reasonably be expected to have a material adverse effect on
the condition (financial or otherwise) or operations of the it or its
properties or on the performance of its duties hereunder;
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(f) there are no actions or proceedings against, or investigations of, it
pending, or, to the knowledge of it, threatened, before any court,
administrative agency or other tribunal (i) that could reasonably be
expected to prohibit its entering into this Termination Agreement, or (ii)
that could reasonably affect the performance by it of its obligations
under, or the validity or enforceability against it of, this Termination
Agreement; and
(g) no consent, approval, authorization or order of any court or
governmental agency or body is required by it for the execution, delivery
and performance by it of, or compliance by it with, the Termination
Agreement, or for the consummation of the transactions contemplated by this
Termination Agreement, except for such consents, approvals, authorizations
and orders, if any, that have been obtained prior to the Effective Date.
The representations and warranties of each party set forth in this Section 3
shall survive the termination contemplated herein and shall survive the delivery
of this Termination Agreement by the parties hereto.
4. Governing Law. This Termination Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of New York
(without reference to its choice of law doctrine) Each party waives any
right it may have to a trial by jury in respect of any proceedings relating
to this Termination Agreement.
Very truly yours,
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
Agreed and Accepted By:
XXXXXX XXXXXXX CORPORATION
By:
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Name:
Title:
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