COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this
"Agreement"), made this 20th day of December, 1996, between Xxxxx
Industries, Inc., an Indiana corporation (the "Seller") and The
Northern Trust Company, an Illinois corporation, not in its
individual or corporate capacity, but solely in its capacity as
trustee (the "Trustee") of The Xxxxx Industries, Inc. Employee
Stock Benefit Trust (the "Trust", which is hereinafter sometimes
referred to as the "Purchaser") under a trust agreement between
the Seller and the Trustee dated as of December 20, 1996 (the
"Trust Agreement")
W I T N E S S E T H:
WHEREAS, as contemplated by the Trust Agreement, the
Purchaser is to purchase from the Seller, and the Seller is to
sell to the Purchaser, 1,800,000 shares of the Seller's Common
Stock, par value $2.50 per share (the "Common Shares"), all as
more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual
covenants and undertakings contained herein, and subject to and
on the terms and conditions herein set forth, the parties hereto
agree as follows:
1. ARTICLE I
PURCHASE AND SALE OF SHARES
1.1. Purchase and Sale. Subject to the terms and
conditions set forth herein, the Seller will sell to the
Purchaser, and the Purchaser will purchase from the Seller, at
the Closing (as hereinafter defined), the Common Shares, and, in
consideration for the Common Shares, the Purchaser will deliver
to the Seller the note in the form of Appendix I to this
Agreement in the principal amount of $42,187,500 (the "Note").
The transactions contemplated hereby shall be the simultaneous
execution of the Note by the Purchaser and delivery of the Shares
by the Seller, and the Purchaser shall not have the ability to
issue the Note to any other party other than the Seller.
1.2. Closing. The closing of the sale and purchase of
the Common Shares hereunder (the "Closing") will be held at the
offices of the Seller at 10:00 a.m., Columbus, Indiana time, on
the date of execution and delivery of this Agreement by the
Seller and the Purchaser, or at such other time, date and place
as may be mutually agreed upon by the Seller and the Purchaser.
1.3. Delivery and Payment. At the Closing, the Seller
will deliver to the Purchaser a certificate representing the
Common Shares, which certificate shall be registered in the name
of the Trustee, or the name of its nominee, against payment by
the Purchaser to the Seller of the aggregate consideration set
forth in Section 1.1 therefor. The Seller will pay all stamp and
other transfer taxes, if any, that may be payable in respect of
the sale and delivery of the Common Shares.
2. ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as
follows:
2.1. Corporate Existence and Authority. The Seller
(a) is a corporation duly organized and validly existing under
the laws of the State of Indiana, (b) has all requisite corporate
power to execute, deliver and perform this Agreement and (c) has
taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
2.2. No Conflict. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate, conflict with or
constitute a default under (a) the Seller's articles of
incorporation or bylaws, (b) any agreement, indenture or other
instrument to which the Seller is a party or by which the Seller
or its assets may be bound or (c) any law, regulation, order,
arbitration, award, judgment or decree applicable to the Seller.
2.3. Validity. This Agreement has been duly executed
and delivered by the Seller and is a valid and binding agreement
of the Seller enforceable against the Seller in accordance with
its terms, except as the enforceability thereof may be limited by
any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity.
2.4. The Common Shares. The Common Shares have been
duly authorized and issued and when sold as contemplated hereby
will be validly issued, fully-paid and non-assessable shares of
the Seller. No stockholder of the Seller has any preemptive or
other subscription right to acquire any shares of Common Stock.
The Seller will convey to the Purchaser, on the date of Closing,
good and valid title to the Common Shares free and clear of any
liens, claims, security interests and encumbrances.
2.5. Litigation. There are no actions, suits,
proceedings, arbitrations or investigations pending, or to the
Seller's best knowledge, threatened in any court or before any
governmental agency or instrumentality or arbitration panel or
otherwise against or by the Seller which seek to or could
restrain, prohibit, rescind or declare unlawful, or result in
substantial damages in respect of, this Agreement or the
performance hereof by the Seller (including, without limitation,
the delivery of the Common Shares).
2.6. Business and Financial Information. Seller has
heretofore delivered to the Purchaser copies of the audited
consolidated balance sheets, statements of stockholders' equity,
statements of income and statements of cash flows of Seller and
its subsidiaries as of and for the fiscal years ending in 1995
and in 1994 and the unaudited consolidated balance sheet,
statement of stockholders' equity, statement of income and
statement of cash flows of Seller and its subsidiaries as of and
for the nine months ending September 30, 1996 (including the
related notes and schedules, the "Seller Financial Statements").
The Seller Financial Statements fairly present the consolidated
results of operations, changes in stockholders' equity and cash
flows for the periods set forth therein and the consolidated
financial position as at the dates thereof of Seller and its
subsidiaries, in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as set forth in the notes thereto and subject, in the case
of unaudited financial statements, to the omission of certain
notes not ordinarily accompanying such unaudited financial
statements and to normal year-end audit adjustments which in each
case will not be material to Seller and its subsidiaries taken as
a whole. Since December 31, 1995, Seller has filed with the
Securities and Exchange Commission all forms, reports and
documents required pursuant to the Securities Act of 1933, as
amended (the "1933 Act"), and the Securities Exchange Act of
1934, as amended (the "1934 Act"), to be filed by it (the
"Disclosure Documents"). At the time filed, all of the
Disclosure Documents complied as to form in all material respects
with all applicable requirements of such Acts. None of the
Disclosure Documents, at the time filed, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
3. ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the
Seller as follows:
3.1. Authority; Validity. The Purchaser has full
power and authority under the Trust to execute and deliver this
Agreement and the Note and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Trustee on behalf of the Trust and
represents with respect to itself that it is a valid and binding
agreement of the Purchaser enforceable in accordance with its
terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws affecting the enforcement of
creditors' rights generally, and by general principles of equity.
Assuming the Trustee has received a direction from the Company in
accordance with the terms of the Trust, the Note has been duly
authorized by the Trustee on behalf of the Trust and, upon the
execution and delivery by the Trustee on behalf of the Trust, the
Note will be a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of creditors'
rights generally, and by general principles of equity.
3.2. No Conflict. The execution and delivery of this
Agreement do not, and the execution and delivery of the Note, and
the consummation of the transactions contemplated hereby and
thereby will not, violate, conflict with or constitute a default
under (a) the terms of the Trust, (b) any agreement, indenture or
other instrument to which the Trust is a party or by which the
Trust or, to the best of the Trustee's knowledge, its assets may
be bound or subject or (c) to the best of the Trustee's
knowledge, any law, regulation, order, arbitration award,
judgment or decree applicable to the Trust.
4. ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
4.1. Restricted Securities. The Purchaser
acknowledges that the Purchaser is acquiring the Common Shares
pursuant to a transaction exempt from registration under the 1933
Act. The Purchaser represents, warrants and agrees that all
Common Shares acquired by the Purchaser pursuant to this
Agreement are being acquired for investment without any intention
of making a distribution thereof, or of making any sale or other
disposition thereof which would be in violation of the 1933 Act
or any applicable state securities law, and that the Purchaser
will not dispose of any of the Common Shares, except that the
Trustee will, from time to time, convey a portion of the Common
Shares to the participants in the Company's stock incentive plans
to satisfy the obligations of the Seller thereunder; convey a
portion of the Common Shares to the trustee of the Company's 401(k)
Plan; and may convey or sell a portion of the Common Shares to
fund the obligations of the Seller under certain other plans as
may be set forth in Schedule A to the Trust Agreement, and upon
termination of the Trust to the extent that the Trust then holds
any Common Shares, all in compliance with all provisions of
applicable federal and state law regulating the issuance, sale and
distribution of securities.
4.2. Legend. Until such time as the Common Shares are
registered pursuant to the provisions of the 1933 Act, any
certificate or certificates representing the Common Shares
delivered pursuant to Section 1.3 will bear a legend in
substantially the following form:
"The shares represented by this certificate have
not been registered under the Securities Act of 1933,
as amended, and may not be sold, transferred or
otherwise disposed of unless they have first been
registered under such Act or unless an exemption from
registration is available."
The Seller may place stop transfer orders against the
registration of transfer of any share evidenced by such a
certificate or certificates until such time as the requirements
of the foregoing are satisfied.
5. ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
5.1. Financial Statements, Reports and Documents.
Subsequent to the Closing, and for as long as the Common Shares
are held by the Trust (unless the Trustee shall otherwise consent
in writing), the Seller shall deliver to the Trustee each of the
following:
(a) Annual Statements. As soon as available and
in any event within one hundred twenty (120) days after the
close of each fiscal year of the Seller, copies of the
consolidated balance sheet of the Seller and its
subsidiaries as of the close of such fiscal year and
consolidated statements of income, statements of
stockholders' equity and statements of cash flow of the
Seller and its subsidiaries for such fiscal year, in each
case setting forth in comparative form the figures for the
preceding fiscal year, all in reasonable detail and
accompanied by an opinion thereon of Price Waterhouse LLP,
or of other independent public accountants of recognized
national standing, to the effect that such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied (except
for changes in which such accountants concur) and that the
examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards and, accordingly,
includes such tests of the accounting records and such other
auditing procedures as were considered necessary in the
circumstances;
(b) SEC and Other Reports. Promptly upon their
becoming available, one copy of each financial statement,
report, notice or proxy statement sent by the Seller to
stockholders generally and of each regular or periodic
report, registration statement or prospectus (other than any
registration statement on Form S-8 and its related
prospectus) filed by the Seller with the Securities and
Exchange Commission or any successor agency; and
(c) Other Information. Such other information
concerning the business, properties or financial condition
of the Seller as the Trustee shall reasonably request.
The Seller will comply with all federal, state, local and foreign
laws, regulations or orders, and all the rules of any stock
exchange or similar entity which are applicable to it or to the
conduct of its business, and, without limiting the generality of
the foregoing, shall make such filings, distributions and
disclosures as are required by the 1933 Act, the 1934 Act or any
of the regulations, rules or orders promulgated thereunder,
insofar as the failure to comply would materially and adversely
affect the Seller and its subsidiaries taken as a whole. The
Seller will maintain complete and accurate books, records and
accounts in accordance with the requirements of Section 13(b)(2)
under the 1934 Act.
5.2. Registration; Listing. If so requested by the
Trustee, the Seller shall cause the Common Shares to be listed on
the New York Stock Exchange, Inc. The Seller will, as promptly
as practicable (but in any event within 75 days) after a request
by the Trustee, prepare for filing at the Seller's expense a
registration statement with the Securities and Exchange
Commission sufficient to permit the public offering of such
Common Shares in accordance with the terms of this Agreement, and
the Seller will use its best efforts in all matters necessary or
advisable to cause such registration statement to become
effective as promptly as practicable and to remain effective for
a reasonable period, all to the extent requisite to permit the
sale or other disposition of such Common Shares. The Seller
shall also use its best efforts to register or qualify the Common
Shares so registered under the securities blue sky laws of such
jurisdictions within the United States as the Trustee may
reasonably request; provided, however, that the Seller shall not
be required to consent to general service of process for all
purposes in any jurisdiction where it is not then qualified.
6. ARTICLE VI
CONDITIONS TO CLOSING
6.1. Conditions to Obligations of the Purchaser. The
obligation of the Purchaser to purchase the Common Shares is
subject to the satisfaction of the following conditions on the
date of Closing:
(a) The representations and warranties of the
Seller set forth in Article II hereof shall be true and
correct; and if the Closing shall occur on a date other than
the date of this Agreement, the Purchaser shall have been
furnished with a certificate, dated the date of the Closing,
to such effect, signed by an authorized officer of the
Seller; and
(b) All permits, approvals, authorizations and
consents of third parties necessary for the consummation of
the transactions herein shall have been obtained, and no
order of any court or administrative agency shall be in
effect which restrains or prohibits the transactions
contemplated by this Agreement, and no suit, action or other
proceeding by any governmental body or other person shall
have been instituted which questions the validity or
legality of the transactions contemplated by this Agreement.
(c) Receipt of a direction from the Company regarding
the execution of the Note.
6.2. Conditions to Obligations of the Seller. The
obligation of the Seller to issue, sell and deliver the Common
Shares to the Purchaser is subject to the satisfaction of the
following conditions on the date of Closing:
(a) The representations and warranties of the
Purchaser set forth in Article III hereof shall be true and
correct; and if the Closing shall occur on a date other than
the date of this Agreement, the Seller shall have been
furnished with a certificate dated the date of the Closing,
to such effect, signed by an authorized officer of the
Trustee; and
(b) No order of any court or administrative
agency shall be in effect which restrains or prohibits the
transactions contemplated by this Agreement, and no suit,
action or other proceeding by any governmental body or other
person shall have been instituted which questions the
validity or legality of the transactions contemplated by
this Agreement.
7. ARTICLE VII
MISCELLANEOUS
7.1. Expenses. The Seller shall pay all of its
expenses, and it shall pay the Purchaser's expenses, in
connection with the authorization, preparation, execution and
performance of this Agreement, including without limitation the
reasonable fees and expenses of the Trustee, its agents,
representatives, counsel, financial advisors and consultants.
7.2. Survival of Seller's Representations and
Warranties. All representations and warranties made by the
Seller to the Purchaser in this Agreement shall survive the
Closing.
7.3. Notices. All notices, requests, or other
communications required or permitted to be delivered hereunder
shall be in writing, delivered by registered or certified mail,
return receipt requested, as follows:
(a) To the Seller:
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
(b) To the Purchaser:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Any party hereto may from time to time, by written notice given
as aforesaid, designate any other address to which notices,
requests or other communications addressed to it shall be sent.
7.4. Specific Performance. The parties hereto
acknowledge that damages would be an inadequate remedy for any
breach of the provisions of this Agreement and agree that the
obligations of the parties hereunder shall be specifically
enforceable, and neither party will take any action to impede the
other from seeking to enforce such rights of specific
performance.
7.5. Successors and Assigns; Integration; Assignment.
This Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties hereto and their respective legal
representatives, successors and assigns. This Agreement (a)
constitutes, together with the Note, the Trust Agreement and any
other written agreements between the Purchaser and the Seller
executed and delivered on the date hereof, the entire agreement
between the parties hereto and supersedes all other prior
agreements and understandings, both written and oral, among the
parties, with respect to the subject matter hereof, (b) shall not
confer upon any person other than the parties hereto any rights
or remedies hereunder and (c) shall not be assignable by
operation of law or otherwise, except that the Trustee may assign
all its rights hereunder to any corporation or other institution
exercising trust powers in connection with any such institution
assuming the duties of a trustee under the Trust.
7.6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Indiana.
7.7. Further Assurances. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary,
proper or advisable to consummate and make effective the
transactions contemplated by this Agreement.
7.8. Amendment and Waiver. No amendment or waiver of
any provision of this Agreement or consent to departure therefrom
shall be effective unless in writing and signed by the Purchaser
and the Seller.
7.9. Counterparts. This Agreement may be executed in
any number of counterparts with the same effect as if the
signatures thereto were upon one instrument.
7.10. Certain Limitations. The execution, delivery
and performance by the Trustee of this Agreement have been, and
will be, effected by the Trustee solely in its capacity as
Trustee under the terms of the Trust and not in its individual or
corporate capacity. Nothing in this Agreement shall be
interpreted to increase, decrease or modify in any manner any
liability of the Trustee to the Seller or to any trustee,
representative or other claimant by right of the Seller resulting
from the Trustee's performance of its duties under the
constituent instruments of the Trust, and no personal or
corporate liability shall be asserted or enforceable against the
Trustee by reason of any of the covenants, statements or
representations contained in this Agreement.
7.11. Incorporation. The terms and conditions of the
Trust Agreement relating to the nature of the responsibilities of
the Trustee and the indemnification of the Trustee by the Seller
are incorporated herein by reference and made applicable to this
Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed
this Agreement on the date and year first above written.
XXXXX INDUSTRIES, INC.
By:/s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title:Vice President-Finance
and Chief Financial Officer
THE NORTHERN TRUST COMPANY
By:/s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title:Vice President
PROMISSORY NOTE
$42,187,500 Columbus, Indiana
December 20, 1996
FOR VALUE RECEIVED, the undersigned, The Northern Trust
Company not in its individual or corporate capacity but solely in
its capacity as Trustee of The Xxxxx Industries, Inc. Employee
Stock Benefit Trust (the "Trust") hereby promises on behalf of
the Trust to pay to the order of Xxxxx Industries, Inc., an
Indiana corporation (the "Company") without relief from valuation
and appraisment laws, at the principal offices of the Company in
Columbus, Indiana, or at such other place as the Company shall
designate in writing, the aggregate principal amount of FORTY TWO
MILLION ONE HUNDRED AND EIGHTY-SEVEN THOUSAND FIVE HUNDRED
DOLLARS ($42,187,500), as shown on Schedule A attached hereto as
such may be amended from time to time, with interest in arrears
thereon, as hereinafter provided.
Principal shall be paid in installments in the amounts
and on the dates set forth on the Maturity Schedule attached
hereto as Schedule A, the last such installment due on January 1,
2006; provided, however, that this Note may be prepaid in whole
or in part at any time without penalty; and provided further that
the principal amount of this Note (1) shall be forgiven in the
event that the Trust shall have been terminated in accordance
with Section 8.2 thereof and the Trustee shall have complied with
the requirements of such Section or (2) shall be deemed forgiven,
if applicable, in accordance with Section 2.1 of the Trust.
Interest on the unpaid principal balance, at an annual interest
rate (the "Interest Rate") equal to 8.0%, shall be paid
quarterly, in arrears, on each January 1, April 1, July 1 and
October 1, commencing January 1, 1997, and shall be calculated on
the basis of a 360-day year of 30-day months. Whenever any
payment falls due on a Saturday, Sunday or public holiday, such
payment shall be made on the next succeeding business day.
This Note shall be construed under the laws of the
State of Indiana.
The undersigned represents and warrants that the
indebtedness represented by this Note was incurred for the
purpose of purchasing shares of Common Stock, $2.50 par value, of
the Company.
This Note may not be assigned by the Company, other
than by operation of law, without the prior express written
consent of the undersigned.
The Company shall have no recourse whatsoever to any
assets of the Trustee in its individual or corporate capacity for
repayment. The Trustee is entering into this Agreement not in
its individual or corporate capacity but solely as Trustee, and
no personal or corporate liability or personal or corporate
responsibilities are assumed by, or shall at any time be asserted
or enforceable against, the Trustee in its individual or
corporate capacity under, or with respect to, this Agreement.
The Northern Trust Company,
on behalf of THE XXXXX INDUSTRIES, INC.
EMPLOYEE STOCK BENEFIT TRUST
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
Schedule A
PRINCIPAL PAYMENT DATES
Date Amount
January 1, 1997 $1,000,000
January 1, 1998 $1,000,000
January 1, 1999 $1,000,000
January 1, 2000 $1,000,000
January 1, 2001 $1,000,000
January 1, 2002 $1,000,000
January 1, 2003 $1,000,000
January 1, 2004 $1,000,000
January 1, 2005 $1,000,000
January 1, 2006 $33,187,500
