EXHIBIT 5
EXECUTION COPY
STOCK PURCHASE AGREEMENT
by and among
GENERAL ELECTRIC PENSION TRUST
and
CINCINNATI XXXX INC.
Dated as of July 20, 1999
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made and entered into this 20th day
of July, 1999, by and among Cincinnati Xxxx Inc., an Ohio corporation ("Buyer"),
and General Electric Pension Trust, a New York common law trust (the "Seller").
RECITALS
WHEREAS, Seller owns of record and beneficially 8,624,517 shares
common stock, par value $.01 per share ("Common Stock"), of IXC Communications,
Inc., a Delaware corporation (the "Company"), and 322,349 shares of 7 1/4%
Junior Convertible Preferred Stock Due 2007, par value $.01 per share, of the
Company, which are convertible into an aggregate of 1,374,173 shares of Common
Stock; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, an
aggregate of 4,999,345 shares of Common Stock owned by the Seller pursuant to
the terms and subject to the conditions of this Agreement (the "Purchased
Shares").
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
. As used in this Agreement, unless otherwise defined herein or unless the
context otherwise requires, the following terms shall have the following
meanings:
"Agreement" means this Stock Purchase Agreement and all amendments,
modifications and supplements hereto.
"Closing Dates" means the Initial Closing Date and the Final Closing
Date.
"Company" has the meaning set forth in the recitals hereof.
"Contract" has the meaning set forth in Section 3.1(a) hereof.
"Encumbrance" means any claim, lien, pledge, charge or security
interest of any kind or nature whatsoever.
"Escrow Agent" means State Street Bank.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Final Closing" has the meaning specified in Section 2.3 hereof.
"Final Closing Date" has the meaning specified in Section 2.3
hereof.
"Final Purchase Price" has the meaning specified in Section 2.3
hereof.
"Governmental Authority" means any Federal, state, local or foreign
government, any court, administrative, regulatory or other governmental agency,
commission or authority, or any non-governmental self-regulatory agency,
commission or authority.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Initial Closing" has the meaning set forth in Section 2.2 hereof.
"Initial Closing Date" has the meaning set forth in Section 2.2
hereof.
"Initial Purchase Price" has the meaning set forth in Section 2.2
hereof.
"IRS" means the Internal Revenue Service.
"Knowledge" means the actual knowledge of each of the Seller and
Buyer, as the case may be.
"Purchased Shares" means the aggregate of 4,999,345 shares of Common
Stock to be sold by Seller to Buyer pursuant to this Agreement.
"Stockholders Agreement" means the Stockholders Agreement dated as
of July 20, 1999 by and between Buyer and Seller.
"Subsidiary" of an entity means any entity in which the specified
entity directly or indirectly owns at least a majority of the outstanding stock
or other equity or general voting interest.
ARTICLE II
SALE OF SHARES; PURCHASE PRICE
Section 2.1 Sale of Shares. Upon the terms and subject to the
conditions of this Agreement, on the Closing Dates Seller shall sell, transfer
and deliver to Buyer and Buyer shall purchase and acquire the number of
Purchased Shares agreed to be purchased hereunder on the respective Closing Date
by the Buyer at a purchase price of $50.00 per share.
Section 2.2 Initial Closing . The initial closing of the purchase
and sale of 300,000 shares of Common Stock(the "Initial Closing") shall take
place at the offices of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Americas, New
York, New York, at 10:00 a.m. (local time) within two business days of the date
hereof or such later date as Seller shall advise Buyer (the "Initial Closing
Date"). At the Initial Closing, in consideration of the sale, transfer and
delivery of the Purchased Shares to be sold at the Initial Closing, Buyer shall
pay to Seller $15,000,000 in cash (the "Initial Purchase Price").
Section 2.3 Final Closing. The final closing of the purchase and
sale of 4,699,345 shares of Common Stock (the "Final Closing") shall take place
at the offices of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Americas, New York,
New York, at 10:00 a.m. (local time) within two business days following the
satisfaction or waiver of the conditions set forth in Article VI, hereof or at
such other date as shall be agreed upon by the parties. The date on which the
Final Closing occurs is referred to herein as the "Final Closing Date." At the
Final Closing, in consideration of the sale, transfer and delivery of the
Purchased Shares to be sold at the Final Closing, Buyer shall pay to Seller
$234,967,250 in cash (the "Final Purchase Price").
Section 2.4 Closing Obligations. On the Closing Dates:
(a) Seller shall deliver or cause to be delivered to Buyer:
(i) A certificate or certificates representing the Purchased Shares
to be purchased by the Buyer on such date, duly endorsed in blank, or
accompanied by stock powers duly executed in blank, with any necessary
stock transfer tax stamps attached or provided for; and
(ii) Such other duly executed documents and certificates as may be
required to be delivered by Seller pursuant to the terms of this
Agreement. (b) Buyer shall deliver or cause to be delivered to Seller:
(i) The Initial Purchase Price or the Final Purchase Price, as
applicable, payable by wire transfer of immediately available funds to
such account or accounts as Seller shall designate prior to the Initial
Closing Date or the Final Closing Date, as applicable; and
(ii) Such other duly executed documents and certificates as may be
required to be delivered by Buyer pursuant to the terms of this Agreement.
Section 2.5 Escrow Account. If the Final Closing Date has not
occurred within 60 days after the date of this
Agreement, the Buyer, on such 60th day, shall deposit an amount equal to the
Final Purchase Price into an escrow account to be established with the Escrow
Agent and Seller shall deposit the Purchased Shares into such escrow account.
Escrow Agent shall hold and invest all funds received in this escrow in
accordance with such instructions and directions as may be provided to Escrow
Agent in writing and signed by the Seller. Thereafter, on the Final Closing
Date, the amount held in the Escrow Account, including any interest earned on
the funds deposited in such escrow, shall be paid to the Seller and the
Purchased Shares shall be delivered to Buyer. If the Final Closing does not
occur and this Agreement is terminated under Section 7.1, the amount held in
escrow, including any interest earned on the funds deposited in such escrow,
shall be delivered to Buyer and the Purchased Shares shall be delivered to
Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 3.1 Organization; Authority; Execution and Delivery;
Enforceability. Seller has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. Seller is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and, assuming due
authorization, execution and delivery by Buyer constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms. The execution and delivery by Seller of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof, will not, 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 loss
of a benefit under, or result in the creation of any Encumbrance on any
properties or assets of Seller under, (i) any provision of the certificate of
incorporation or by-laws or partnership agreement or the comparable
organizational documents applicable to Seller, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or instrument, or similar
authorization (a "Contract") to which Seller is a party or by which any of the
properties or assets of Seller are bound or (iii) subject to the filings and
other matters referred to in the following sentence of this Section 3.1(a), any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Seller or its properties or assets, except in the case of each of clauses
(ii) and (iii), as is not materially likely to (x) impair the ability of Seller
to perform its obligations under this Agreement or (y) prevent or materially
delay the consummation of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Governmental Authority
is required by or with respect to Seller in connection with the execution and
delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby, except for (1) such filings under the Exchange
Act as may be required in connection with this Agreement and the transactions
contemplated hereby, (2) such filings under the HSR Act as may be required in
connection with this Agreement and the transactions contemplated hereby and (3)
those which are not materially likely to (x) impair the ability of Seller to
perform its obligations under this Agreement or (y) prevent or materially delay
the consummation of the transactions contemplated by this Agreement. No trust of
which Seller is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby. Seller is the record and beneficial owner of
(or is a trust that is the record holder of, and whose beneficiaries are the
beneficial owners of), and has good and marketable title to, the Purchased
Shares, free and clear of any Liens. Seller has the sole right to sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
("Transfer") the Purchased Shares, and none of such Purchased Shares is subject
to any voting trust or other agreement, arrangement or restrictions with respect
to the Transfer of such Purchased Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 4.1 Organization; Authority; Execution and Delivery;
Enforceability. Buyer has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
Buyer is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. The execution and delivery of this Agreement
by Buyer and the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Buyer. This Agreement has been duly executed and delivered by Buyer and,
assuming due authorization, execution and delivery by Seller, constitutes a
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms. The execution and delivery by Buyer of this Agreement
do not, and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof, will not, 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 loss of a benefit under, or result in the creation of any
Encumbrance on any properties or assets of Buyer under, (i) any provision of the
Amended Articles of Incorporation or Amended Regulations of Buyer, (ii) any
Contract to which Buyer is a party or by which any of its properties or assets
are bound or (iii) subject to the filings and other matters referred to in the
last sentence of this Section 4.1, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Buyer or any of its properties or
assets, except in the case of each of clauses (ii) and (iii), as is not
materially likely to (x) have a Material Adverse Effect (as defined in the
Merger
Agreement) on Buyer, (y) impair the ability of Buyer to perform its obligations
under this Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration or
filing with, any Governmental Authority is required by or with respect to Buyer
in connection with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated hereby except for (1)
such filings under the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby, (2) such filings under the
HSR Act as may be required in connection with this Agreement and the
transactions contemplated hereby and (3) those which are not materially likely
to (x) impair the ability of Buyer to perform its obligations under this
Agreement or (y) prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
Section 5.1 Reasonable Efforts. (a) Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties agrees to use
its reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other party in doing, all
things necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement, including using reasonable efforts to accomplish the following: (i)
the taking of all reasonable acts necessary to cause the conditions to Closing
to be satisfied as promptly as practicable, (ii) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings (including
filings with Governmental Authorities) and the taking of all reasonable steps as
may be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by any Governmental Authority, (iii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iv) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the transactions contemplated hereby, and to fully
carry out the purposes of, this Agreement, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Authority
vacated or reversed and (v) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of this Agreement. In connection with and without
limiting the foregoing, Buyer shall make filings under the HSR Act within five
business days of the date hereof and shall use reasonable efforts to obtain an
early termination of the waiting period under the HSR Act.
Section 5.2 Certain Tax Matters (a) . All transfer, registration,
stamp and documentary taxes (including all applicable real estate transfer and
any stock transfer taxes), any penalties, interest and additions to such tax
incurred in connection with this Agreement and the transactions contemplated
hereby shall be the responsibility of and be paid by Buyer. Seller and Buyer
shall cooperate in the timely making of all filings, returns, reports and forms
as may be required in connection therewith.
Section 5.3 Implied Warranties. Except as expressly provided in this
Agreement, Seller has not made and is not making any representation or warranty
whatsoever to Buyer as to Seller, the Company or its Subsidiaries or the
Company's or its Subsidiaries' businesses. Without limiting the foregoing, Buyer
acknowledges that Buyer is not relying on any implied warranties (whether of
merchantability or fitness for a particular purpose or otherwise), or upon any
representation or warranty whatsoever as to the prospects (financial or
otherwise), or the viability or likelihood of success, of the business of the
Company and its Subsidiaries as conducted after the Final Closing Date, or in
any subsequent or supplemental materials provided by the Company or Seller,
except as expressly provided in this Agreement.
Section 5.4 Further Assurances. From time to time after the Final
Closing, without additional consideration, each of Seller and Buyer will execute
and deliver such further instruments and take such other action as may be
necessary to make effective the transactions contemplated by this Agreement.
Section 5.5 Notice of Certain Events. Seller shall notify Buyer in
writing and Buyer shall notify the Seller in writing of:
(a) any notice or other communication received by Seller or Buyer,
as the case may be, from any person alleging that the consent of such person is
or may be required in connection with the transactions contemplated by this
Agreement;
(b) any notice or other communication received by Seller or Buyer,
as the case may be, relating to the transactions contemplated by this Agreement
and any other significant notices or other communications from any Governmental
Authority; and
(c) any actions, suits, claims or proceedings or, to Seller' or
Buyer's, as the case may be, Knowledge, investigations commenced or to Seller'
or Buyer's Knowledge, as the case may be, threatened against, relating to or
involving or otherwise affecting Seller or Buyer, as the case may be, that
relate to the consummation of the transactions
contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF EACH PARTY
The respective obligations of each party to consummate the
transactions contemplated to be completed on the Final Closing Date shall be
subject to the fulfillment, at or prior to the Final Closing Date, of the
following conditions, each of which may be waived by the parties in writing:
Section 6.1 No Action or Proceeding. No statute, rule, regulation,
order, decree, temporary restraining order or injunction shall have been
entered, enacted, promulgated or enforced by a Governmental Authority, which
enjoins or prohibits the transactions contemplated hereby.
Section 6.2 Xxxx-Xxxxx-Xxxxxx Requirements. Any applicable waiting
period (as such may be extended by the governmental agencies involved) with
respect to the transactions contemplated hereby under the provisions of the HSR
Act shall have expired or have been terminated by the appropriate governmental
agency.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any
time prior to the Closing Date as follows and in no other manner:
(a) by mutual written consent of Seller and Buyer;
(b) by either Seller or Buyer if any United States court of
competent jurisdiction or other competent Governmental Authority shall have
issued an order, decree or injunction or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement and such order decree or injunction or other action shall have
become final and nonappealable; and
(c) by either Buyer or Seller if the Closing has not occurred by
July 31, 2000, provided, however, that neither party may terminate this
Agreement pursuant to this subsection (c) if the Closing has not occurred by
such date by reason of the failure of such party to perform in all material
respects any of its obligations under this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to Buyer:
Cincinnati Xxxx Inc.
000 X. Xxxxxx Xxxxxx, 102-1900
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, III, Esq.
Facsimile: (000) 000-0000
If to Seller:
General Electric Pension Trust
c/o General Electric Investment Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Section 8.2 Interpretation. When a reference is made in this
Agreement to an Article or Section, such reference shall be to an Article or
Section of this Agreement unless
otherwise indicated. 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. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
Section 8.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
Section 8.4 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein), the
Stockholder Agreement and the Confidentiality Agreement (a) constitute the
entire agreement, and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter of this
Agreement and (b) are not intended to confer upon any person other than the
parties any rights or remedies.
Section 8.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
Section 8.6 Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by either of the parties
hereto without the prior written consent of the other party. Any assignment in
violation of the preceding sentence shall be void. Subject to the preceding two
sentences, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
Section 8.7 Enforcement. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a Federal court sitting in the State of
Delaware or a Delaware state court.
Section 8.8 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Cincinnati Xxxx Inc. has caused this Agreement
to be signed by its officer thereunto duly authorized and General Electric
Pension Trust has signed this Agreement, all as of the date first written above.
CINCINNATI XXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive Officer
GENERAL ELECTRIC PENSION TRUST
By General Electric Investment Corporation,
Its investment manager,
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
