EXHIBIT 2.4
Conformed Copy
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SECURITIES PURCHASE AGREEMENT
DATED JANUARY 15, 2002
BY AND AMONG
U.S. INDUSTRIES, INC.,
&
STRATEGIC MEMBERSHIP COMPANY,
AS THE SELLERS,
AND
CITICORP VENTURE CAPITAL EQUITY PARTNERS, L.P.
AS THE PURCHASER
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENt dated as of January 15, 2002 by and among
U.S. INDUSTRIES, INC., a Delaware corporation ("USI"), STRATEGIC MEMBERSHIP
COMPANY, a Delaware corporation ("SMC" and together with USI, the "Sellers"),
and CITICORP VENTURE CAPITAL EQUITY PARTNERS, L.P., a Delaware limited
partnership (the "Purchaser").
WHEREAS, the Sellers presently own 157,072 Class A Common Membership Units
(the "Common Units") and 177,174 Series A Junior Preferred Membership Units
(the "Preferred Units," and together with the Common Units, the "Membership
Units") of Strategic Industries, LLC, a Delaware limited liability company
("Strategic"), and are willing to sell all of the Common Units and the
Preferred Units, including the right to receive all accrued dividends thereon,
for an aggregate purchase price of $250,000, and the Purchaser desires to
purchase the Membership Units, on the terms and subject to the conditions set
forth in this Agreement;
Therefore, Intending to be legally bound, and in consideration of the
mutual representations, warranties and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE 1
THE TRANSACTION
1.1. Sale and Purchase of Membership Units. Subject to the terms and
conditions hereof, at the Closing (as defined in Section 1.2), USI will cause
SMC to sell and transfer to the Purchaser, and SMC will transfer to the
Purchaser, and the Purchaser will purchase from the Sellers, for a cash payment
in the amount of Two Hundred Fifty Thousand Dollars ($250,000) (the "Purchase
Price") and free and clear of all liens, security interests, restrictions,
charges, claims and encumbrances (except for any restrictions under the
Securities Purchase and Holders Agreement, dated March 24, 2000 by and among
Strategic, Automotive Interior Products LLC, JUSI Holdings, Inc., Citicorp
Mezzanine III, L.P. and the Management Investors (as defined therein) (the
"Securities Holders Agreement")), the Membership Units.
1.2. Closing.
1.2.1. Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices
of Dechert, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 at 9:30 A.M. (local time)
on the date hereof (the "Closing Date").
1.2.2. Deliveries and Proceedings at Closing.
1.2.2.1. Deliveries by the Sellers. At the Closing, the Sellers will
deliver to the Purchaser the unit certificates representing the Membership
Units,
together with duly executed unit powers transferring ownership of the Membership
Units to the Purchaser.
1.2.2.1.1. Deliveries by the Purchaser. At the Closing, the Purchaser will
deliver to the Sellers the Purchase Price in immediately available funds, to an
account designated by the Sellers in writing not less than two days prior to
Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Each Seller hereby jointly and severally represents and warrants to the
Purchaser as follows:
2.1. Membership Unit Ownership; Authority to Transfer. The Sellers own the
Membership Units of record and beneficially, free and clear of any pledge,
lien, encumbrance, equity, voting trust, security interest or claim of any kind
or character, except for the lien in favor of certain creditors for borrowed
money of USI which lien will be released upon consummation of the Closing and
for any restrictions under the Securities Holders Agreement. The Sellers have
full legal right, power and authority to transfer the Membership Units and to
enter into this Agreement and to perform their respective obligations
hereunder. The delivery of unit certificates for the Membership Units and
related unit powers will transfer valid title to the Purchaser, free and clear
of all pledges, liens, encumbrances, equities, voting trusts, security
interests, options and claims.
2.2. Organization, No Conflict. Each Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with full legal right, power and authority to enter into this
Agreement and perform its respective obligations hereunder. The transactions
contemplated by this Agreement will not conflict with, result in any breach of
any provision of or constitute a default under any material agreement,
obligation or other instrument to which such Seller is a party or by which it
is bound, conflict with any law, rule or regulation, order, judgment or decree
that applies to or to which such Seller is subject, or require the consent of
any third party (other than lender consents that have already been obtained and
are currently effective).
2.3. Authority Relative to this Agreement. Each Seller has all requisite
corporate authority and power to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement, and the other agreements and instruments to be executed in
connection herewith and the consummation of the transactions contemplated
hereby by such Seller have been duly and validly authorized by all required
action on the part of such Seller, and no other proceedings on the part of such
Seller are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Seller and, assuming this Agreement has been
duly authorized, executed and delivered by the Purchaser, constitutes a valid
and binding agreement of such Seller, enforceable against such Seller in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization,
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moratorium and similar laws affecting creditors' rights and remedies generally.
As of the Closing, the other agreements and instruments contemplated hereby
will have been duly and validly executed and delivered by such Seller and,
assuming due authorization, execution and delivery by such other parties
thereto, will constitute valid and binding agreements of such Seller,
enforceable against such Seller in accordance with their terms.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants as follows:
3.1. Organization, No Conflict. The Purchaser is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full legal right, power and authority to enter into
this Agreement and perform its obligations hereunder. The transactions
contemplated by this Agreement will not conflict with, result in any breach of
any provision of or constitute a default under any material agreement,
obligation or other instrument to which the Purchaser is a party or by which it
is bound, conflict with any law, rule or regulation, order, judgment or decree
that applies to or to which the Purchaser is subject, or require any consent of
any third party.
3.2. Authority Relative to this Agreement. The Purchaser has all requisite
limited partnership authority and power to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the other agreements and instruments to be
executed by the Purchaser in connection herewith and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
required limited partnership action, as applicable, on the part of the
Purchaser, and no other limited partnership proceedings, as applicable, on the
part of the Purchaser are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Purchaser and, assuming this
Agreement has been duly authorized, executed and delivered by the Sellers,
constitutes a valid and binding agreement of the Purchaser, enforceable against
the Purchaser in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally. As of the Closing, the
other agreements and instruments contemplated hereby will have been duly and
validly executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery by such other parties thereto, will
constitute valid and binding agreements of the Purchaser, enforceable against
the Purchaser in accordance with their terms.
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ARTICLE 4
CONDITIONS OF CLOSING AS TO THE PURCHASER
The obligations of the Purchaser hereunder are subject to the fulfillment
prior to or at the Closing of the following conditions:
4.1. USI Consents. USI and its subsidiaries shall have received a consent
and agreement from USI's senior lenders in the form attached as Exhibit A
hereto (the "USI Consent and Agreement").
4.2. Opinion. USI shall have received an opinion of its outside financial
advisor in the form attached as Exhibit C hereto (the "Opinion").
4.3. Closing Deliveries. The relevant parties shall have made all the
deliveries to the Purchaser required by Section 1.2 hereof.
ARTICLE 5
CONDITIONS OF CLOSING AS TO THE SELLERS
The obligations of the Sellers hereunder are subject to the fulfillment
prior to or at the Closing of the following conditions:
5.1. USI Consents. USI and its subsidiaries shall have received the USI
Consent and Agreement.
5.2. Opinion. USI shall have received the Opinion.
5.3. Closing Deliveries. The relevant parties shall have made all the
deliveries to the Sellers required by Section 1.2 hereof.
ARTICLE 6
MISCELLANEOUS
6.1. Indemnification. Following the Closing, the Sellers shall jointly and
severally indemnify and defend the Purchaser and each of its respective
directors, officers and employees and shall hold each of them harmless from and
against any losses, claims, damages, liabilities, costs, expenses, judgments
and amounts paid in settlement in connection with any claim, action, suit or
proceeding (the "Indemnifiable Claim"), which arises out of any
misrepresentation or breach of any representation or warranty made by the
Sellers in this Agreement and will pay as incurred and reimburse all expenses,
including reasonable attorneys' fees, of the Purchaser incurred in connection
with such Indemnifiable Claim or in enforcing the indemnity provided for in
this Agreement. Following the Closing, the Purchaser shall indemnify and defend
the Sellers and each of their respective directors, officers and employees and
shall hold each of them harmless from and against any Indemnifiable Claim which
arises out of any misrepresentation or breach of any representation or warranty
made by the Purchaser in this
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Agreement, and will pay as incurred and reimburse all expenses, including
reasonable attorneys' fees, of the Sellers incurred in connection with such
Indemnifiable Claim or in enforcing the indemnity provided for in this
Agreement.
6.2. Nature and Survival of Representations. All representations,
warranties and agreements shall survive the Closing hereunder.
6.3. Further Assurances. Each party hereto shall, from and after the
Closing, execute and deliver such documents and perform such acts as may be
reasonably necessary or appropriate to cause the satisfactory completion and
consummation of the transactions contemplated by this Agreement.
6.4. Costs. Each party hereto shall bear its own costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
6.5. Amendment and Modification. This Agreement may be amended, modified
or supplemented at any time by the parties hereto only by an instrument in
writing duly signed by the parties hereto.
6.6. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
6.7. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect.
6.8. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by facsimile transmission or telexed or three days
after being mailed by registered or certified mail (return receipt requested),
postage prepaid, and one business day after deposited with an overnight courier
service if delivered by overnight courier, to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice; provided, that notices of a change of address shall be effective only
upon receipt thereof):
(a) if to the Sellers, to:
c/o U.S. Industries, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
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(b) if to the Purchaser, to:
Citicorp Venture Capital Equity Partners, L.P.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
Telecopy: (000) 000-0000
with a required copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx X. XxXxxxx, Esq.
Telecopy: (000) 000-0000
6.9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.
6.10. Specific Performance. The parties hereto agree that if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
6.11. Public Disclosure. Notwithstanding anything herein to the contrary,
each of the parties to this Agreement hereby agrees with the other party or
parties hereto that, except as may be required to comply with the requirements
of any applicable laws or the rules and regulations of any stock exchange upon
which the securities of one of the parties (or its affiliate) is listed, in
which case the party making the release or announcement shall provide a copy of
such release or announcement 24 hours in advance to the other parties, no press
release or announcement with respect to the transactions contemplated by this
Agreement shall be issued by any party to this Agreement prior to the Closing
without the advance consent of the other parties.
6.12. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning interpretation of this Agreement.
6.13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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6.14. Facsimiles. 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 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 claim that this Agreement is invalid,
not binding or unenforceable based upon the use of a facsimile machine to
deliver a signature, or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine, and
each such party forever waives any such claim or defense.
6.15. Integrated Transaction. The parties agree that the purchase of
Membership Units under this Agreement is conditioned upon the consummation of
the transactions contemplated by the Securities Purchase Agreement dated as of
the date hereof by and among Strategic, certain subsidiaries of Strategic and
USI and certain subsidiaries of USI and, for avoidance of doubt, the parties
acknowledge and agree that the acquisition of securities under such agreement
and the acquisition of the Membership Units under this Agreement was negotiated
and consummated as an integrated transaction, and not as separate and distinct
transactions, and should in all events be construed as an integrated
transaction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to
be signed by its duly authorized officers as of the date first above written.
U.S. INDUSTRIES, Inc.
By: /s/ Xxxxxx Xxxxx
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Title: Vice President & Secretary
STRATEGIC MEMBERSHIP COMPANY
By: /s/ Xxxxxx Xxxxx
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Title: Vice President & Secretary
CITICORP VENTURE CAPITAL EQUITY
PARTNERS, L.P.
By: CVC Partners, LLC
Its: General Partner
By: /s/ Xxxxxxx Xxxxxxx
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Title: Authorized Person
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