UNIT PURCHASE AGREEMENT
Exhibit 99.13
Execution Copy
THIS
UNIT PURCHASE AGREEMENT (this “Agreement”) is made as of June 29, 2007, between
DelStaff, LLC, a Delaware limited liability company (the “Company”) and D.E. Shaw Laminar
Portfolios, L.L.C., a Delaware limited liability company (together with its successors and
assigns, the “Purchaser”).
1.
Authorization and Closing.
1.1. Authorization of the Units. The Company shall authorize the issuance and sale to
the Purchaser of an aggregate of 1,575,000 Class A Units of the Company (the “Units”) having the
rights and preferences set forth in the Company’s Amended and Restated Limited Liability Company
Agreement, dated as of the date hereof (as amended from time to time, the “LLC Agreement”).
1.2 Purchase and Sale of the Units. On the date hereof (the “Closing”), the Company
shall sell to the Purchaser and, subject to the terms and conditions set forth herein, the
Purchaser shall purchase from the Company, an aggregate of 1,575,000 Units at a price of $1.00 per
unit, for an aggregate purchase price of $1,575,000 by wire transfer of immediately available
funds to the account designated by the Company. Purchaser acknowledges that Purchaser has received
this Agreement, that certain Letter Agreement by and among H.I.G. Capital L.L.C., the Purchaser
and other parties named therein, dated as of the date hereof (the “Letter Agreement”) and a copy
of the LLC Agreement (together with the Letter Agreement, each as amended from time to time, the
“Related Agreements”). The number of Units and purchase price to be issued to, and paid by, the
Purchaser are set forth on Exhibit A attached hereto. The Closing of the purchase and sale
of the Units shall take place at the offices of Xxxxxxxxx Traurig, LLP, 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on the date hereof. At the Closing, the Company shall cause
Schedule A to the LLC Agreement to be amended to reflect the Units to be purchased by the
Purchaser, upon payment of the applicable purchase price therefor. The LLC Agreement, to which the
Purchaser is a party, and the Related Agreements shall govern in all respects the Purchaser’s
rights and obligations with respect to the Units.
2.
Transfer of Units; LLC Agreement.
2.1
Contemporaneously with the Closing, the Purchaser shall execute a counterpart to the LLC
Agreement.
2.2
The Purchaser shall sell, pledge, assign or transfer all or any part
of the Units purchased
hereunder only in accordance with the transfer restrictions provided in the LLC Agreement.
3.
Representations and Warranties of Purchaser. Subject to the terms and conditions
set forth herein, Purchaser hereby represents and warrants to the Company, as of the date hereof and
the time of the Closing, that:
3.1
Organization and Good Standing. Purchaser is duly organized,
validly existing and
in good standing under the laws of the State of Delaware. Purchaser has all requisite power
and authority to enter into and perform its obligations under the terms of this Agreement.
3.2
Authorization; No Conflicts; Binding Obligations. The execution
and delivery by
Purchaser of this Agreement, and the performance by Purchaser of the transactions
contemplated herein, have been duly authorized and approved by all requisite action. The execution
and delivery by
Purchaser of this Agreement, the performance by Purchaser of the transactions contemplated
herein, and compliance by Purchaser with the provisions hereof, do not and will not conflict or be
inconsistent with, or result in a breach or violation of the terms, conditions or provisions of,
or constitute a default under, or result in the creation or imposition of any lien pursuant to the
terms of, or result in any adjustment or creation of any rights under, the organizational
documents of Purchaser, or any statute, law, rule or regulation or any order, judgment, decree,
indenture, mortgage, deed of trust, lease, covenant or other agreement or instrument to which the
Purchaser is a party or to which any of its properties is subject. Upon execution, this Agreement
will be a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except to the extent that enforcement may be affected by laws
relating to bankruptcy, reorganization, insolvency and creditors’ rights generally and by the
availability of injunctive relief, specific performance and other equitable remedies.
3.3 Investment Intent. The Purchaser hereby represents and warrants to the Company
that the Purchaser is acquiring the Units solely for investment, for its own account and not with
a view to resale or redistribution in violation of applicable securities laws and that it is an
“accredited investor” and a sophisticated investor for purposes of applicable U.S. federal and
state securities laws and regulations. The Purchaser understands that the Units may not be resold
(i) without complying with all securities laws that are applicable in the relevant jurisdiction,
and (ii) in connection with any proposed sale to a U.S. Person without registration under the
Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations
of the Securities and Exchange Commission thereunder, all as the same shall be in effect at the
time (the “Securities Act”), or pursuant to an exemption therefrom. The Purchaser agrees that the
Purchaser will not sell or otherwise transfer the Units unless permitted under applicable
securities laws or unless they are registered under the Securities Act or unless an exemption from
registration thereunder is available, as applicable.
4.
Representations and Warranties of the Company. Subject to the terms and
conditions set forth herein, the Company hereby represents and warrants to Purchaser as of the date
hereof and as of the Closing, as follows:
4.1
Organization and Good Standing. The Company is a corporation duly organized,validly
existing and in good standing under the laws of the State of Delaware. The Company has
all requisite power and authority to own and lease its property, to conduct its business as
presently conducted and to enter into and perform its obligations under the terms of this Agreement.
4.2
Authorization; No Conflicts; Binding Obligations. The execution
and delivery by the
Company of this Agreement and the Related Agreements, and the performance by the Company of
the transactions contemplated herein, have been duly authorized and approved by all requisite
action. The execution and delivery by the Company of this Agreement and the Related Agreements,
the performance by the Company of the transactions contemplated herein and therein, and compliance
by the Company with the provisions hereof, do not and will not conflict or be inconsistent with, or
result in a breach or violation of the terms, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of any lien pursuant to the terms of, or result in
any adjustment or creation of any rights under,the organizational documents of the Company, or any
statute, law, rule or regulation or any order,judgment, decree, indenture, mortgage, deed of trust,
lease, covenant or other agreement or instrument to which the Company is a party. Upon execution,
this Agreement and the Related Agreements will each be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
4.3
Capitalization. As of immediately after the Closing, the Company
shall have issued
and outstanding the securities set forth on Schedule A to the LLC Agreement, as revised as
of the
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date hereof, a copy of which has been delivered to the Purchaser on the date hereof. The
Schedule sets forth a capitalization table of the Company on a post-closing, fully-diluted basis,
assuming the purchase and sale of the Units hereunder. Such capitalization table identifies by
name and number of securities owned, each Member and other holder of the Company’s outstanding
securities. Except as may be granted pursuant to this Agreement and the LLC Agreement, there are
no outstanding options, warrants, rights (including conversion or preemptive rights, rights of
first refusal and phantom stock rights), proxy, voting, transfer restriction or stockholder
agreements, or agreements of any kind for the purchase or acquisition from the Company of any of
its securities.
4.4 Valid Issuance; Securities Laws. The rights, preferences and privileges of
the Units are as stated in the LLC Agreement. When issued in compliance with the provisions of
this Agreement, the Units will be (i) validly issued, fully paid and nonassessable (ii) assuming the
accuracy of Purchaser’s representations and warranties in Section 3 hereof, issued in
compliance with applicable federal and state securities laws and will be exempt from registration
requirement of the Acts and (iii) free of any liens; provided, however, that the Units may
be subject to restrictions on transfer under state and/or federal securities laws and the LLC
Agreement. All issued and outstanding equity interests of the Company (i) have been duly
authorized and validly issued and are fully paid and nonassessable and (ii)were issued in
accordance with all applicable securities laws, including, without
limitation, the registration
requirements of the Securities Act of 1933, and applicable state securities laws (such
state securities laws, together with the Securities Act, the “Acts”) or pursuant to an exemption
from such registration requirements. The rights, preferences and privileges of the Units are as
stated in the LLC Agreement. All issued and outstanding equity interests of the Company (i) have
been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in
accordance with all applicable securities laws, including, without limitation the registration
requirements of the Acts or pursuant to an exemption from such requirements.
4.5 Investment
Company. The Company is not an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, nor is the Company
directly or indirectly controlled
by or acting on behalf of any Person which is an “investment company.”
4.6 Subsidiaries. The Company does not have any subsidiaries. Prior to
the consummation of the transactions contemplated by the Related Agreements, the Company is not
a participant in any joint venture.
4.7 Litigation. To the knowledge of the Company, there is no litigation,
arbitration,mediation or proceeding or investigation pending or threatened against the Company
which may call into question the validity or hinder the enforceability of this Agreement or the
transactions contemplated hereby. The Company is not a party or subject to the provisions of any
order, writ, injunction, judgmentor decree of any court or governmental authority. There is no
action or suit by the Company pending or threatened against others.
5. Miscellaneous.
5.1 Controlling Law. This Agreement and all questions relating to its
validity,interpretation, performance and enforcement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to conflict of laws
principles.
5.2 Notices. All notices, requests, demands and other communications required
or permitted under this Agreement shall be in writing and shall be deemed to have been duly given,
made and received only when personally delivered, sent by facsimile during normal business
hours (or if not the
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following business day), two days following the day when deposited with an overnight courier
service, such as Federal Express, for delivery to the intended addressee or two days following the
day when deposited in the United States mails, first class postage prepaid, at the following
addresses:
If to the Company:
DelStaff, LLC
x/x X.X.X. Xxxxxxx, X.X.X.
000 Xxxxxxxx Xxxxxx, xxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxx
Xxxxxxx Xxxxxxxx
x/x X.X.X. Xxxxxxx, X.X.X.
000 Xxxxxxxx Xxxxxx, xxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxx
Xxxxxxx Xxxxxxxx
with copies to (which shall not constitute notice):
Xxxxxxxxx Traurig, LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Fax: (000)000-0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Fax: (000)000-0000
if to Purchaser:
D. E. Shaw Laminar Portfolios, L.L.C.
c/o X. X. Xxxx & Co., L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxx
c/o X. X. Xxxx & Co., L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxx
with a copy to (which shall not constitute notice):
Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
Any person may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this paragraph for the
giving of notice.
5.3 Binding Nature of Agreement: No Assignment; Amendments. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, except that no party may assign or transfer its rights
under this Agreement without the prior written consent of the other parties hereto, except that the
Purchaser may
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assign this Agreement to any Permitted Transferee or pursuant to an Exempt Transfer, in each case,
in accordance with and as defined in the LLC Agreement. This Agreement may not be amended,
modified or supplemented except by a written instrument executed by the Company and the Purchaser.
5.4
Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as the signatories.
5.5
Provisions Separable. The provisions of this Agreement are independent of
and separable from each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any provision or provisions may be invalid
or unenforceable in whole or in part.
5.6
Paragraph Headings. The section headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect its interpretation.
5.7
Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the context indicates is
appropriate.
5.8
Delivery by Facsimile. This Agreement and any amendments hereto,
to the extent
signed and delivered by means of a facsimile machine, shall be
treated in all manner and respects as
an original agreement or instrument and shall be considered to have the same binding legal effect
as if it were the original signed version thereof delivered in person. At the request of any party
hereto, each other party hereto shall re execute original forms thereof and deliver them to all other
parties. No party hereto shall raise the use of a facsimile machine to deliver a signature or the
fact that any signature was transmitted or communicated through the use of a facsimile machine as a
defense to the formation or enforceability of a contract and each such party forever waives any such
defense.
* * * * *
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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized as of the
date first above written.
COMPANY: DELSTAFF, LLC |
||||
By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Manager | |||
PURCHASER: D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. |
||||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
Exhibit A
Class A Units to be | ||||||||
Purchaser | Purchased | Purchase Price | ||||||
D.E. SHAW LAMINAR
PORTFOLIOS, L.L.C. |
1,575,000 | $ | 1,575,000 | |||||
TOTAL |
1,575,000 | $ | 1,575,000 |
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