STOCK PURCHASE AGREEMENT
by and among
THE BLACKROCK STRATEGIC TERM TRUST INC.
BGT SUBSIDIARY INC.
and
X.X. XXXXXX VENTURES CORPORATION
dated as of
November 29, 2001
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 29, 2001 (this
"Agreement"), by and among The BlackRock Strategic Term Trust, Inc. a Maryland
corporation (the "Selling Stockholder"), BGT Subsidiary Inc., a Maryland
corporation (the "Company") and X.X. Xxxxxx Ventures Corporation, a Delaware
corporation (the "Purchaser").
WHEREAS, the Selling Stockholder is the owner of all the
outstanding shares of the Company;
WHEREAS, on the terms and subject to the conditions set
forth herein, the Selling Stockholder desires to sell to the Purchaser, and
the Purchaser desires to purchase from the Selling Stockholder, twenty-two
percent of the capital stock of the Company;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. Upon the terms and
subject to conditions of this Agreement, at the Closing (as defined in Section
1.2 hereof), the Selling Stockholder shall sell, transfer, assign, convey and
deliver to the Purchaser, and the Purchaser shall accept from the Selling
Stockholder, 12,652,341 shares (the "Shares") of common stock, par value $0.01
per share, of the Company (the "Company Common Stock"), free and clear of any
and all liens, charges and encumbrances, for an aggregate purchase price
determined in accordance with Article II of this Agreement (the "Purchased
Shares").
Section 1.2 Closing. The closing of the purchase and sale of
the Shares contemplated hereby (the "Closing") will take place at 12:00 noon,
New York time or such other time as agreed to by the parties, on a date to be
specified by the parties, which shall be no later than the third business day
after satisfaction or waiver of all of the conditions set forth in Article ?
hereof (other than those conditions which by their nature are to be satisfied
at the Closing, but subject to the fulfillment or waiver of those conditions)
(the "Closing Date"), at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP in New York, New York unless another date or place is agreed to in writing
by the parties hereto.
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Section 1.3 Payment on the Closing Date. Subject to the
satisfaction or waiver of all the conditions set forth in Article VI hereof,
at the Closing the Purchaser shall pay the Selling Stockholder the Share
Purchase Price (as defined in Section 2.1 hereof), by wire transfer in
immediately available funds to the account or accounts specified by the Selling
Stockholder in a written notice delivered to the Purchaser.
Section 1.4 Deliveries by the Selling Stockholder. At the
Closing, the Selling Stockholder shall deliver to the Purchaser:
(a) A certificate from the Company's Secretary evidencing
the Purchaser's ownership of the Purchased Shares;
(b) All other documents required to be delivered by the Selling
Stockholder or the Company on or prior to the Closing Date pursuant to this
Agreement;
Section 1.5 Transfer Taxes. All transfer, documentary, sales,
use, stamp, registration and other such taxes (including penalties and
interest) incurred in connection with the transaction contemplated by this
Agreement shall be paid by the Selling Stockholder.
ARTICLE II
PURCHASE PRICE
Section 2.1 Purchase Price and Payment. The purchase price for
the Shares shall be $121,042,415.88 (the "Share Purchase Price"), an amount
equal to the product of (a) $9.5668 (the net asset value per Share of the
Company Common Stock computed in accordance with the asset valuation procedures
consistently used by the Company as of the close of regular trading on the New
York Stock Exchange on the business day prior to the day of the Closing) and (b)
12,652,341 (the number of Purchased Shares).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE SELLING STOCKHOLDER
The Company and the Selling Stockholder each represent and
warrant to the Purchaser as follows:
Section 3.1 Organization. Except as provided for on Schedule A,
it
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is a corporation duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation, has all requisite
corporate power and authority to own all of its assets and to carry on its
business as it is now being conducted and to carry out this Agreement.
Section 3.2 Registration under the 40 Act. It is duly
registered under the Investment Company Act of 1940 (the "40 Act") as a
diversified, closed-end management investment company and such registration
has not been revoked or rescinded and is in full force and effect. It has
elected and qualified for the special tax treatment afforded regulated
investment companies under Sections 851-855 of the Internal Revenue Code of
1986, as amended.
Section 3.3 Capitalization. The authorized capital stock of the
Company consists of 200,000,000 shares of Company Common Stock. As of the date
hereof, (i) 57,510,639 shares of Company Common Stock are issued and
outstanding and (ii) no shares of Company Common Stock are issued and held in
the treasury of the Company. All the outstanding shares of the Company's
capital stock are duly authorized, validly issued, fully paid and nonassessable
and are owned, directly or indirectly, by the Selling Stockholder.
Section 3.4 Authorization; Validity of Agreement. The Selling
Shareholder has the full power and authority to enter into and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action of its Board of
Directors, and this Agreement constitutes a valid and binding contract of the
Selling Shareholder enforceable against it in accordance with its terms,
subject to the effects of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and to the discretion of
courts regarding matters of equity.
Section 3.5 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement by
the Company or the Selling Stockholder nor the consummation by the Company or
the Selling Stockholder of the transactions contemplated hereby will violate
any provision of the certificate of incorporation or bylaws of either the
Company or the Selling Stockholder; and
(b) no consent, approval, authorization or order of any court
of governmental authority is required for the consummation of the sales of the
Shares by the Selling Shareholder.
Section 3.6 Financial Statements
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(a) The Purchaser has been furnished with the most recent
statement of assets, liabilities and capital and schedule of investments in the
Company.
(b) The Company has no known liabilities of a material amount,
contingent or otherwise, other than those shown on the Company's statements of
assets, liabilities and capital referred to above and those incurred in the
ordinary course of its business as an investment company since the end of the
Company's most recently completed fiscal year.
Section 3.7 No Other Representations or Warranties. Except for
the representations and warranties contained in this Article ?, neither the
Company nor the Selling Shareholder makes any other express or implied
representation or warranty on behalf of the Company or the Selling
Shareholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser represents and warrants to the Selling
Shareholder as follows:
Section 4.1 Organization. The Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation, has all requisite corporate power and
authority to own all of its assets and to carry on its business as it is now
being conducted and to carry out this Agreement.
Section 4.2 Authorization; Validity of Agreement. The Purchaser
has the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transaction contemplated hereby.
Section 4.3 No Violations; Consents and Approvals. Neither the
execution and delivery of this Agreement by the Purchaser nor the consummation
by the Purchaser of the transactions contemplated hereby will violate any
provision of the certificate of incorporation or bylaws of the Purchaser.
Section 4.4 No Other Representations or Warranties. Except for
the representations and warranties contained in this Article IV, the Purchaser
makes no other express or implied representation or warranty on behalf of the
Purchaser or any of its affiliates.
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ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company. The Company
covenants to operate its business as presently conducted between the date
hereof and the Closing Date.
Section 5.2 Liquidation Covenants. The Company and the
Selling Stockholder covenant that, with respect to the portfolio of assets held
by the Company (the "Portfolio"):
(a) The Purchaser shall be entitled to review and consult, to
its reasonable satisfaction, with the Company and the Selling Stockholder about
the trading prices and liquidating prices of any and all assets in the
Portfolio.
(b) The Company and the Selling Stockholder shall take all
action (corporate or otherwise) necessary to distribute the proceeds from the
liquidation of the Portfolio to the Purchaser in cash by December 31, 2001.
Section 5.3 Maturity Covenant. To the extent the Company
purchases additional securities for inclusion in the Portfolio, any such
additional securities shall have a final maturity of no greater than December
31, 2001 and not have a credit rating lower than A-1 or P-1.
Section 5.4 Further Assurances. From and after the Closing
Date, the Company and the Selling Stockholder agree to provide the Purchaser
any information reasonably required by the Purchaser relating to the Company,
Selling Stockholder and the Portfolio. The Purchaser acknowledges that such
information might constitute nonpublic inside information regarding the
Selling Stockholder, and the Purchaser agrees that it would hold any such
information in confidence and will not enter into transactions in shares of
the Selling Stockholder while in possession of material nonpublic information
regarding the Selling Stockholder.
Section 5.5 Anti-Dilution. Neither the Company nor the Selling
Stockholder shall take any action (separate or otherwise) that would result in
Purchaser owning less than 22% of the issued and outstanding common stock of the
Company.
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ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Closing.
(a) Conditions to Obligation of the Purchaser. The obligation
of the Purchaser to effect the transactions contemplated hereby are further
subject to the satisfaction or, to the extent permitted by applicable law,
waiver at or prior to the Closing of the following condition: the
representations and warranties of the Company and the Selling Stockholder set
forth in Article III shall be true and correct as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date.
(b) Conditions to Obligation of the Selling Stockholder. The
obligation of the Selling Stockholder to effect the transactions contemplated
hereby are further subject to the satisfaction or, to the extent permitted by
applicable law, waiver at or prior to the Closing of the following condition:
the representations and warranties of the Purchaser set forth in Article IV
shall be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification for Breach of Representation or
Warranties. From and after the Closing, the Company and the Selling Stockholder
shall each severally indemnify and hold harmless the Purchaser from and against
any and all liabilities, losses, expenses (including reasonable attorneys fees
incurred thereby, arising out of, or resulting from any breach of any
representation or warranty made by it in this Agreement.)
Section 7.2 Indemnification for Tax Matters. From and after the
Closing, the Company and the Selling Stockholder shall indemnify and hold
harmless the Purchaser from and against any and all expenses (including costs
of investigations and reasonable attorneys' fees) arising out of or resulting
from any inquiry or controversy by a governmental authority with respect of
the Purchaser's acquisition of the Purchased Shares.
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ARTICLE VIII
TERMINATION
Section 8.1 Termination. Notwithstanding anything herein to
the contrary, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time before the Closing occurs:
(a) By the mutual written consent of the Purchaser and the
Selling Stockholder; or (b) By the Selling Stockholder or the Purchaser, if the
Closing shall not have occurred on or prior to the date that is seven (7) days
after the date of this Agreement, or on such other date, if any, as the
Purchaser and the Selling Stockholder shall agree in writing.
Section 8.2 Effect of Termination.
(a) In the event of the termination of this Agreement as
provided in Section 8.1 hereof, written notice thereof shall forthwith be given
to the other party or parties specifying the provision hereof pursuant to which
such termination is made, and this Agreement shall forthwith become null and
void, and there shall be no liability on the part of the Purchaser, the Selling
Stockholder or the Company except liabilities with respect to any prior breach.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Survival. Notwithstanding anything herein to the
contrary, all of the representations and warranties of the parties contained
in this Agreement shall survive the execution and delivery of this Agreement
and the Closing until ninety (90) days following the Closing Date and for such
further period as may be required to resolve any claim made prior to such
expiration.
Section 9.2 Amendment; Waiver.
(a) This Agreement may be amended, modified or supplemented by
the parties hereto, by action taken or authorized by their respective Boards of
Directors, at any time. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 9.3 Notices. Any notice, request, instruction or other
document to be given hereunder by any person under this Agreement to the others
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shall be in writing and delivered personally or sent by registered or certified
mail, postage prepaid, by nationally recognized overnight courier, or by
facsimile::
(a) if to the Company or the Selling Stockholder:
c/o The BlackRock Strategic Term Trust Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
with a copy to:
--------------
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to the Purchaser:
X.X. Xxxxxx Ventures Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: ______________
Facsimile: ______________
Attention: Xxxxxxxx Xxxxxx, Esq.
and to:
Telephone: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Attention: (000) 000-0000
Section 9.4 Transferability. After the Closing, Purchaser
shall have the ability to sell any or all of the Purchased Shares to any third
party or affiliate. Notwithstanding the foregoing, the Purchaser understands
and agrees the Purchased Shares have not been registered under the Securities
Act of 1933 (the "Securities Act") and that no interest in the Purchased Shares
may be offered, sold, pledged or otherwise transferred except, (a) pursuant to
a registration statement that has been declared
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effective under the Securities Act, (b) to an "Accredited Investor" within the
meaning of Rule 501 under the Securities Act that is acquiring any interest in
Purchased Shares for its own account, or for the account of such an Accredited
Investor, for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act, it
being understood that, if any resale or transfer of any interest in Purchased
Shares is proposed to be made pursuant to this Section 9.4(b), the Purchaser
shall deliver a letter from the transferee third party to the Company, in form
and substance reasonably satisfactory to the Company, which shall represent,
among other things, that the transferee third party is an Accredited Investor
and that it is acquiring such interest in Purchased Shares for investment
purposes and not with a view to distribution or (c) pursuant to any other
available exemption from the registration requirements under the Securities
Act.
Section 9.5 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated.
Section 9.6 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of
which shall be considered one and the same agreement.
Section 9.7 Entire Agreement. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings
(written and oral), among the parties with respect to the subject matter hereof.
Section 9.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 9.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
Section 9.10 Submission to Jurisdiction. Each of the Selling
Stockholder, the Company and the Purchaser hereby irrevocably submit in any
action, suit or proceeding arising out of this Agreement or any of the
transactions contemplated hereby to the exclusive jurisdiction of the United
States District Court
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for the Southern District of New York and the jurisdiction of any court of the
State of New York located in the City of New York, Borough of Manhattan. The
parties hereto waive any and all objections to the laying of venue of any such
litigation in such jurisdiction and agree not to plead or claim in any such
litigation that such litigation has been brought in an inconvenient forum.
Section 9.11 Waiver of Jury Trial. Each party acknowledges and
agrees that any controversy which may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of or relating to this Agreement, or the transactions contemplated by this
Agreement. Each party certifies and acknowledges that (i) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver, (ii) each such party understands and has considered the
implications of this waiver and (iii) each such party makes this waiver
voluntarily.
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IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be signed by their respective officers thereunto duly authorized
as of the date first written above.
BLACKROCK STRATEGIC TERM TRUST INC.
By: ____________________________
Name: Xxxxxxx Xxxx, Esq.
Title: Vice President
BGT SUBSIDIARY INC.
By: ____________________________
Name: Xxxxxxx Xxxx, Esq.
Title: Vice President
X.X. XXXXXX VENTURES CORPORATION
By: ____________________________
Name: Xxxxxxxx Xxxxxx, Esq.
Title: Secretary
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