STOCK REPURCHASE AGREEMENT
EXHIBIT
99.2
THIS
STOCK REPURCHASE AGREEMENT
(this
“Agreement”), is effective this 25 day of April, 2007, by and between xXxx.xxx
Holdings, Inc., a Delaware corporation (the “Buyer”), and the holders of Company
stock listed on Schedule
A
attached
hereto (the “Sellers”). The Buyer and Sellers may be collectively referred to as
the “parties” or singularly referred to as a “party.”
WHEREAS,
Sellers
collectively own 2,135,550 shares of the Buyer’s common stock (the “Shares”) and
warrants to purchase 580,937 shares of the Buyer’s common stock (the
“Warrants”), with the number of Shares and Warrants held by each Seller set
forth opposite such Seller’s name on Schedule A;
WHEREAS,
the
Buyer desires to purchase the Shares and the Warrants and each Seller desires
to
sell to the Buyer the Shares and the Warrants owned by such Seller;
WHEREAS,
Each
Seller will sell to the Buyer and the Buyer will purchase the Shares and the
Warrants in accordance with the following terms and conditions of this
Agreement.
NOW,
THEREFORE,
in order
to consummate the transaction contemplated hereby, and in consideration of
the
purchase price to be paid by the Buyer to the Sellers as set forth herein,
and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Sale
of Shares and Warrants.
Each
Seller agrees to sell, transfer and deliver the Shares and the Warrants set
forth opposite such Seller’s name on Schedule A to Buyer, and Buyer agrees to
purchase all such Shares and Warrants.
2. Purchase
Price.
The
aggregate purchase price that the Buyer shall pay to the Sellers for the Shares
shall be Two Million Two Hundred Forty Two Thousand Three Hundred Twenty Seven
50/100 dollars ($2,242,327.50) (the “Purchase Price”), or $1.05 per Share, with
a portion of such Purchase Price allocated to the Warrants for purposes of
the
purchase of such Warrants. The amount to be paid to each Seller is set forth
opposite such Seller’s name on Schedule A.
3. The
Closing.
Consummation of the transaction (the “Closing”),
shall
occur on a date or dates to be agreed to by the parties, but in no event later
than May 9, 2007. Each Seller shall deliver to the Sellers’ broker, ThinkEquity
Partners, LLC (“ThinkEquity”)
the
Shares to be sold by such Seller, Assignments Separate from Certificate in
blank
executed by such Seller to the Buyer, the Warrants to be sold by such Seller,
and the Assignments of Warrants executed by such Seller assigning such Warrants
to the Buyer, together with such other documents as may be reasonably required
to consummate the transaction contemplated herein. Following notification by
ThinkEquity to the Buyer of the receipt of such documents by ThinkEquity from
any Seller, the Purchase Price shall be paid by the Buyer to the applicable
Seller by wire transfer of the Purchase Price to ThinkEquity.
4. Representations
and Warranties of Seller.
Each
Seller, severally and not jointly, represents and warrants to the Buyer as
of
the date hereof and as of the Closing date that:
(a) Transaction
Initiation. Such
Seller, not the Buyer, initiated discussions regarding the subject matter of
this Agreement, Buyer has not in any manner induced or advised such Seller
to
enter into this Agreement or made any recommendations as to the benefits of
entering into and performing this Agreement from such Seller’s perspective, that
such Seller is entering into this Agreement of its own free will without
persuasion from Buyer and that such Seller and its representatives or agents,
if
any, have had an adequate opportunity to review and understand the terms of
this
Agreement.
(b) Receipt
of Current Information Regarding the Company.
Such
Seller is in receipt of the Company’s Prospectus contained on Form S-1/A filed
with the Securities and Exchange Commission on July 19, 2006 and declared
effective July 21, 2006 and supplemented by that Supplement No. 1 dated November
17, 2006 and that Supplement No. 2 dated April 2, 2007 (the “Prospectus”).
Assuming
the accuracy of the representations of the Company in Section 5(c) hereof,
such
Seller acknowledges that neither the Company nor any of its officers, directors
or affiliates, has provided such Seller or its agent or counsel with any
information that constitutes or might constitute material, nonpublic information
(other than the existence and terms of the purchase of the Shares and Warrants
as contemplated by this Agreement).
(c) Title
to Capital Stock.
Such
Seller owns
all
right, title and interest in and to the Shares and Warrants to be delivered
by
it hereunder, free and clear of all liens, encumbrances, equities or
claims.
(d) Approvals
and Authority.
All
authorizations, approvals and consents necessary for the execution and delivery
by such
Seller of
this
Agreement and for the consummation by such
Seller of
the
transaction contemplated hereby, have been given; such
Seller has
full
right, power and authority to execute, deliver and perform its obligations
set
forth in this Agreement. This Agreement has been duly executed and delivered
by
such Seller and is a legal, valid and binding obligation of such Seller,
enforceable against such Seller in accordance with its terms.
(e) No
Violation of Agreements.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate any law, rule or regulation,
or court or administrative order, instrument, decree, judgment or order to
which
such
Seller is
a
party or by which such
Seller may
be
bound or result in a breach or violation of, or constitute a default (or event
which with notice or lapse of time, or both, would constitute a default) under
any agreement or contract to which such Seller is bound.
(f) No
Brokers.
Such
Seller has no liability of any kind to any broker, finder or agent with respect
to the transactions contemplated hereby, other than to ThinkEquity.
5. Representations
and Warranties of Buyer.
Buyer
represents and warrants to each Seller as of the date hereof and as of the
Closing date that:
(a) Approvals
and Authority.
All
authorizations, approvals and consents necessary for the execution and delivery
by the
Buyer
of
this
Agreement and for the consummation by the
Buyer
of
the
transaction contemplated hereby, have been given; the
Buyer
has
full
right, power and authority to execute, deliver and perform its obligations
set
forth in this Agreement. This Agreement has been duly executed and delivered
by
the Buyer and is a legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
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(b) No
Violation of Agreements.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate any law, rule or regulation,
or court or administrative order, instrument, decree, judgment or order to
which
the
Buyer
is
a
party or by which the
Buyer
may
be
bound or result in a breach or violation of, or constitute a default (or event
which with notice or lapse of time, or both, would constitute a default) under
any agreement or contract to which Buyer is bound.
(c) Information
Regarding the Company.
The
Buyer confirms that neither
the Company nor any of its officers, directors or affiliates, has provided
any
Seller or any of their agents or counsel with any information that constitutes
or might constitute material, nonpublic information (other than the existence
and terms of the purchase of the Shares and Warrants as contemplated by this
Agreement) and as of the date hereof no event or circumstance has occurred
or
information exists with respect to the Company or any of its subsidiaries or
its
or their business, properties, operations or financial conditions, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Buyer but which has not been so publicly announced or disclosed.. The
Prospectus does not contain any untrue statement of a material fact or omit
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. Seller
acknowledges that Buyer believes that its common stock has an intrinsic value
significantly higher than the per share purchase price.
(d) No
Brokers.
Buyer
has no liability of any kind to any broker, finder or agent with respect to
the
transactions contemplated hereby.
6. Independent
Nature of Obligations.
The
obligations of each Seller under this Agreement are several and not joint with
the obligations of any other Seller, and no Seller shall be responsible in
any
way for the performance of the obligations of any other Seller.
7. Entire
Agreement.
This
Agreement, and the Assignments Separate from Certificate and the Assignments
of
Warrant attached hereto, constitute the entire understanding of the parties
hereto and supersede all prior understandings, oral or written, between the
parties with respect to the subject matter hereof and thereof.
8. Severability.
If any
term in this Agreement shall, to any extent, be invalid or unenforceable, the
remainder of the Agreement shall not be affected and the residue shall be valid
and enforceable to the fullest extent permitted by law.
9. Expenses.
Each
party shall be responsible for its own transaction costs and expenses, including
any brokerage fees or transfer taxes or expenses. The parties confirm that
the
Sellers will be responsible for any fees charged by ThinkEquity.
10. Successors
of Parties.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their legal representatives, heirs and successors.
11. Assignability.
This
Agreement and the obligations and benefits conferred hereunder may not be
assigned by either party, without the express written consent of the other
party, which consent shall not be unreasonably withheld.
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12. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
The
Commonwealth of Massachusetts (regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof).
[signature
page follows]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed this
25th
day of April, 2007.
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XXXX.XXX
HOLDINGS, INC.
/s/
Xxxxxx X. Xxxxxxxxx, Xx.
By:
Xxxxxx X. Xxxxxxxxx, Xx.
Its:
President and Chief Executive Officer
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| SELLERS | RADIAN GROUP INC. | |
|
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
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| BRITISH COLUMBIA INVESTMENT MANAGEMENT CORPORATION | ||
|
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
NEW
YORK NURSES ASSOCIATION PENSION PLAN
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
GOVERNMENT
OF SINGAPORE INVESTMENT COMPANY
PTE, LTD
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
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|
THE
RETIREMENT PROGRAM PLAN FOR EMPLOYEES OF
UNION CARBIDE CORPORATION
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
THE
DOW CHEMICAL EMPLOYEES' RETIREMENT PLAN
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
XXXXXX
XXXXXX MEDICAL INSTITUTE
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
THE
XXXXXX XXXX XXXXXXX FOUNDATION
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
PUBLIC
SECTOR PENSION INVESTMENT BOARD
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
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|
WTC-CTF
EMERGING COMPANIES PORTFOLIO
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
OREGON
INVESTMENT COUNCIL
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
THE
GOVERNMENT OF SINGAPORE INVESTMENT CORPORATION
PTE LTD
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
||
|
WTC-CIF
EMERGING COMPANIES PORTFOLIO
By:
Wellington Management Company, LLP,
as
Investment adviser
By:
/s/ Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President and Counsel
|
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