EXHIBIT D
STOCK PURCHASE AGREEMENT
AGREEMENT MADE AS OF THIS 30TH DAY OF AUGUST, 2000, BY AND AMONG COURT
SQUARE CAPITAL, LTD. ("COURT SQUARE"), A CORPORATION ORGANIZED UNDER THE LAWS OF
THE STATE OF DELAWARE, WITH ITS PRINCIPAL OFFICE AT 000 XXXX XXXXXX, XXX XXXX,
XX, XXXX FINANCIAL CORPORATION ("XXXX"), A CORPORATION ORGANIZED UNDER THE LAWS
OF THE STATE OF DELAWARE, WITH ITS XXXXXXXXX XXXXXX XX XXXXXXXX XXXXX, XXXXX
0000, 0000 XXXX XXXXXX, XXXXXX, XXXXX 00000, AND STEUBEN INVESTMENT COMPANY L.P.
("STEUBEN"), A LIMITED PARTNERSHIP ORGANIZED UNDER THE LAWS OF THE STATE OF
DELAWARE WITH ITS XXXXXXXXX XXXXXX XX XXXXXXXX XXXXX, XXXXX 0000, 0000 XXXX
XXXXXX, XXXXXX, XXXXX 00000.
WHEREAS, XXXX IS THE OWNER OF 1,533,318 SHARES OF COMMON STOCK OF ERGO
SCIENCE CORPORATION ("ERGO"), A CORPORATION ORGANIZED UNDER THE LAWS OF THE
STATE OF DELAWARE (THE "XXXX SHARES");
WHEREAS, STEUBEN IS THE OWNER OF 67,682 SHARES OF COMMON STOCK OF ERGO
(THE "STEUBEN SHARES");
WHEREAS, BASED ON THE REPRESENTATIONS, WARRANTIES AND COVENANTS HEREIN
CONTAINED, COURT SQUARE DESIRES TO PURCHASE THE XXXX SHARES AND THE STEUBEN
SHARES (A TOTAL OF 1,601,000 SHARES) AND XXXX AND STEUBEN DESIRE TO SELL THE
XXXX SHARES AND THE STEUBEN SHARES, RESPECTIVELY.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES HEREINAFTER
CONTAINED THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF XXXX SHARES
1.1 Subject to the terms and conditions hereof, Court Square agrees to
purchase from Xxxx, and Xxxx agrees to sell, assign and deliver to Court Square,
the Xxxx Shares for a total purchase price of US $2,453,308.80 (the "Xxxx Share
Purchase Price") at $1.60 per share.
1.2 Concurrently with the delivery of the items required by Section 1.3
below by Xxxx, Court Square agrees to make payment for the Xxxx Shares by wire
transfer of immediately available funds of the Xxxx Share Purchase Price to a
bank account designated by Xxxx.
1.3 Within 7 days after execution hereof (or such later date as may be
agreed between the parties), Xxxx shall deliver to Court Square, by overnight
courier service, certificates representing all of the Xxxx Shares, fully
endorsed or with appropriate stock powers, medallion signature guaranteed,
together with a certificate of an appropriate officer of Xxxx attesting to the
authorization of the signatory, all in form sufficient for transfer of the Xxxx
Shares to Court Square, in order to effect transfer of title to the Xxxx Shares.
1.4 Upon receipt of the certificates and stock powers referred to in
Section 1.3 and the wire transfer of the Xxxx Purchase Price referred in Section
1.2, Court Square and Xxxx will execute and fax to the other an acknowledgement
and receipt in the form attached as Exhibit A.
2. PURCHASE AND SALE OF STEUBEN SHARES
2.1 Subject to the terms and conditions hereof, Court Square agrees to
purchase from Steuben, and Steuben agrees to sell, assign and deliver to Court
Square, the Steuben Shares for a total purchase price of US $108,291.20 (the
"Steuben Share Purchase Price") at $1.60 per share.
2.2 Concurrently with the delivery of the items required by Section 2.3
below by Steuben, Court Square agrees to make payment for the Steuben Shares by
wire transfer of immediately available funds of the Steuben Share Purchase Price
to a bank account designated by Steuben.
2.3 Within 7 days after execution hereof (or such later date as may be
agreed between the parties), Steuben shall deliver to Court Square, by overnight
courier service, certificates representing all of the Steuben Shares, fully
endorsed or with appropriate stock powers, medallion signature guaranteed,
together with a certificate of an appropriate officer of Steuben attesting to
the authorization of the signatory, in form sufficient for transfer of the
Steuben Shares to Court Square, in order to effect transfer of title to the
Steuben Shares.
2.4 Upon receipt of the certificates and stock powers referred to in
Section 2.3 and the wire transfer of the Steuben Purchase Price referred in
Section 2.2, Court Square and Steuben will execute and fax to the other an
acknowledgement and receipt in the form attached as Exhibit A.
3. REPRESENTATIONS AND WARRANTIES BY XXXX
XXXX REPRESENTS AND WARRANTS TO COURT SQUARE AS FOLLOWS:
(a) XXXX IS A DELAWARE CORPORATION, VALIDLY EXISTING AND IN GOOD STANDING,
WITH ALL NECESSARY POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT;
(b) THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY XXXX AND IS BINDING ON AND ENFORCEABLE AGAINST XXXX IN ACCORDANCE
WITH ITS TERMS;
(c) XXXX IS THE SOLE AND EXCLUSIVE RECORD AND BENEFICIAL OWNER OF ALL
RIGHT, TITLE AND INTEREST IN AND TO THE XXXX SHARES, FREE AND CLEAR OF ALL
CLAIMS, ENCUMBRANCES OF ANY NATURE WHATSOEVER;
(d) UPON THE DELIVERY OF THE XXXX SHARES TO COURT SQUARE AGAINST RECEIPT
OF PAYMENT AS PROVIDED FOR HEREIN, GOOD TITLE TO THE XXXX SHARES, FREE AND CLEAR
OF ALL SECURITY INTERESTS, LIENS, CLAIMS, CHARGES, OPTIONS AND ENCUMBRANCES OF
EVERY KIND AND NATURE WHATSOEVER WILL PASS TO COURT SQUARE AND XXXX WILL EXECUTE
AND DELIVER TO COURT SQUARE SUCH DOCUMENTS AND TAKE SUCH FURTHER ACTION AS MAY
BE REASONABLY REQUESTED BY COURT SQUARE IN ORDER TO TRANSFER OWNERSHIP OF AND
TITLE TO THE XXXX SHARES TO COURT SQUARE, INCLUDING, WITHOUT LIMITATION,
ARRANGING FOR THE LEGAL OPINION AND/OR WAIVER OF SUCH OPINION REFERENCED ON THE
CERTIFICATES FOR THE XXXX SHARES AS BEING REQUIRED BY ERGO FOR ANY TRANSFER OF
THESE SECURITIES OTHER THAN PURSUANT TO A REGISTRATION STATEMENT; AND
(e) THE XXXX SHARES ARE REPRESENTED BY VALIDLY ISSUED, FULLY-PAID SHARE
CERTIFICATES OF ERGO AND THERE ARE NO OUTSTANDING WARRANTS, OPTIONS, OR RIGHTS
TO PURCHASE ANY OF THE XXXX SHARES.
4. REPRESENTATIONS AND WARRANTIES OF STEUBEN
STEUBEN REPRESENTS AND WARRANTS TO COURT SQUARE AS FOLLOWS:
(a) STEUBEN IS A DELAWARE CORPORATION, VALIDLY EXISTING AND IN GOOD
STANDING, WITH ALL NECESSARY POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT;
(b) THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY STEUBEN AND IS BINDING ON AND ENFORCEABLE AGAINST STEUBEN IN
ACCORDANCE WITH ITS TERMS;
(c) STEUBEN IS THE SOLE AND EXCLUSIVE RECORD AND BENEFICIAL OWNER OF ALL
RIGHT, TITLE AND INTEREST IN AND TO THE STEUBEN SHARES, FREE AND CLEAR OF ALL
CLAIMS, ENCUMBRANCES OF ANY NATURE WHATSOEVER;
(d) UPON THE DELIVERY OF THE STEUBEN SHARES TO COURT SQUARE AGAINST
RECEIPT OF PAYMENT AS PROVIDED FOR HEREIN, GOOD TITLE TO THE STEUBEN SHARES,
FREE AND CLEAR OF ALL SECURITY INTERESTS, LIENS, CLAIMS, CHARGES, OPTIONS AND
ENCUMBRANCES OF EVERY KIND AND NATURE WHATSOEVER WILL PASS TO COURT SQUARE AND
STEUBEN WILL EXECUTE AND DELIVER TO COURT SQUARE SUCH DOCUMENTS AND TAKE SUCH
FURTHER ACTION AS MAY BE REASONABLY REQUESTED BY COURT SQUARE IN ORDER TO
TRANSFER OWNERSHIP OF AND TITLE TO THE STEUBEN SHARES TO COURT SQUARE INCLUDING,
WITHOUT LIMITATION, ARRANGING FOR A
LEGAL OPINION AND/OR WAIVER OF SUCH OPINION REFERENCED ON THE CERTIFICATES FOR
THE STEUBEN SHARES AS BEING REQUIRED BY ERGO FOR ANY TRANSFER OF THESE
SECURITIES OTHER THAN PURSUANT TO A REGISTRATION STATEMENT; AND
(e) THE STEUBEN SHARES ARE REPRESENTED BY VALIDLY ISSUED, FULLY-PAID SHARE
CERTIFICATES OF ERGO AND THERE ARE NO OUTSTANDING WARRANTS, OPTIONS, OR RIGHTS
TO PURCHASE ANY OF THE STEUBEN SHARES.
5. REPRESENTATIONS AND WARRANTIES BY COURT SQUARE
COURT SQUARE REPRESENTS AND WARRANTS TO XXXX AND STEUBEN AS FOLLOWS:
(a) COURT SQUARE IS A CORPORATION DULY INCORPORATED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, WITH ALL NECESSARY
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT;
(b) THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY COURT SQUARE AND IS BINDING ON AND ENFORCEABLE AGAINST COURT SQUARE
IN ACCORDANCE WITH ITS TERMS; AND
(c) COURT SQUARE IS ACQUIRING THE XXXX SHARES AND THE STEUBEN SHARES FOR
ITS OWN ACCOUNT FOR INVESTMENT AND NOT FOR OR WITH A VIEW TO OR FOR RESALE IN
CONNECTION WITH ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES
ACT OF 1933, AS AMENDED.
(d) COURT SQUARE IS AN "ACCREDITED INVESTOR", AND HAD ACCESS TO ALL
PUBLICLY AVAILABLE INFORMATION CONCERNING ERGO AND HAS THE FINANCIAL
SOPHISTICATION TO EVALUATE THAT INFORMATION.
6. SURVIVAL OF REPRESENTATIONS
THE PARTIES HERETO EACH AGREE THAT ALL REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL SURVIVE THE EXECUTION AND
DELIVERY OF THE AGREEMENT, THE TRANSFER AND PAYMENT FOR THE SHARES, AND ANY
INVESTIGATION OR AUDIT MADE BY ANY PARTY HERETO.
7. GENERAL
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF. IT MAY NOT BE ALTERED, AMENDED, OR
SUPPLEMENTED EXCEPT BY AN AGREEMENT IN WRITING SIGNED BY BOTH PARTIES. IT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. IT SHALL BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE
DEEMED AN ORIGINAL AND BOTH OF WHICH SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
XXXX FINANCIAL CORPORATION STEUBEN INVESTMENT COMPANY, L.P.
BY: ___________________________ BY:_______________________________
NAME: NAME:
TITLE: TITLE:
COURT SQUARE CAPITAL LIMITED
BY: ______________________________
NAME:
TITLE:
EXHIBIT A
ACKNOWLEDGEMENT AND RECEIPT
XXXX FINANCIAL CORPORATION ("XXXX") HEREBY ACKNOWLEDGES RECEIPT OF $2,453,308.80
FROM COURT SQUARE CAPITAL LIMITED ("COURT SQUARE") AS PAYMENT IN FULL FOR THE
XXXX SHARES, AS DEFINED IN THE STOCK PURCHASE AGREEMENT, DATED AUGUST 30, 2000
AMONG XXXX, STEUBEN INVESTMENT COMPANY, L.P. ("STEUBEN") AND COURT SQUARE (THE
"PURCHASE AGREEMENT").
XXXX FINANCIAL CORPORATION
BY: ______________________________
NAME: ____________________________
STEUBEN HEREBY ACKNOWLEDGES RECEIPT OF $108,291.20 FROM COURT SQUARE AS PAYMENT
IN FULL FOR THE STEUBEN SHARES (AS DEFINED IN THE PURCHASE AGREEMENT).
STEUBEN INVESTMENT COMPANY
BY: ______________________________
NAME: ____________________________
COURT SQUARE HEREBY ACKNOWLEDGES RECEIPT OF CERTIFICATES, FULLY ENDORSED OR WITH
STOCK POWERS REPRESENTING THE XXXX SHARES AND THE STEUBEN SHARES.
COURT SQUARE CAPITAL LIMITED
BY: ______________________________
NAME: ____________________________
