STOCK PURCHASE AGREEMENT
Exhibit
(e)(1)
This
STOCK PURCHASE AGREEMENT is dated as of June 28, 2007 (this “Agreement”)
among
Xxxxxxx US Discovery Fund III, L.P. (“Xxxxxxx
Fund I”),
Xxxxxxx US Discovery Offshore Fund III, L.P. (“Xxxxxxx
Fund II”
and,
together with Xxxxxxx Fund I, the “Sellers”)
and
Xxxxxx Technologies, Inc., a New York corporation (the “Company”).
WHEREAS,
Xxxxxxx Fund I currently owns 16,493,481 shares of the common stock, $.01 par
value (the “Common
Stock”),
of
the Company and Xxxxxxx Fund II currently owns 2,643,968 shares of the Common
Stock of the Company;
WHEREAS,
the Company desires to purchase from the Sellers and the Sellers desire to
sell
to the Company, 5,680,800 shares of the Common Stock of the Company (the
“Shares”)
at a
purchase price of $0.65 per share, for a total consideration of
$3,692,520;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, certain
members of the Company’s management (“Management”)
will
purchase a total of 9,230,800 shares of the Common Stock of the Company from
Xxxxxxx Fund I at a purchase price of $0.65 per share, for a total consideration
of $6,000,020 pursuant to the Stock Purchase Agreements between Xxxxxxx
Fund I and Management dated as of the date hereof;
WHEREAS,
the Sellers, the Company and Management are parties to that certain Letter
Agreement (the “Letter
Agreement”)
with Xxxxxx, Xxxxx & Xxxxxxx, LLP (“Xxxxxx
Xxxxx”)
as
escrow agent, providing for the manner in which the closing of the transactions
contemplated by this Agreement and the Stock Purchase Agreements between Xxxxxxx
Fund I and Management will take place, and providing for the delivery by
the Sellers of the executed Stock Purchase Agreements and the Transfer
Documentation (as defined in the Letter Agreement) and the delivery by the
Company and Management of the Purchase Price (as defined in the Letter
Agreement) and the executed Stock Purchase Agreements to Xxxxxx Xxxxx to be
held
in escrow pursuant to the terms of the Letter Agreement;
WHEREAS,
immediately following the Initial Closing Date (as defined herein) and subject
to the terms and conditions described in the offer documentation as required
by
the applicable securities laws, the Company shall commence a tender offer to
all
shareholders of the Company (the “Tender
Offer”)
pursuant to which the Company will offer to purchase up to 1,637,217 shares
of
the Common Stock of the Company (the “Tender
Offer Shares”)
at a
purchase price equal to the last sale price of the Common Stock on the trading
date immediately prior to the commencement of the Tender Offer (the
“Tender
Offer Price”),
all
as set forth in the applicable offer documentation, as required by applicable
securities laws;
WHEREAS,
the Sellers and the Company intend to enter into a Second Letter Agreement
(the
“Second
Letter Agreement”)
with Xxxxxx, Xxxxx & Xxxxxxx, LLP (“Xxxxxx
Xxxxx”)
as
escrow agent, providing for the manner in which the closing of the transactions
contemplated by Section 1.2 of this Agreement between the Sellers and the
Company will take place and the delivery by the Sellers of the Transfer
Documentation (as defined in the Second Letter Agreement) and the delivery
by
the Company of the Purchase Price (as defined in the Second Letter Agreement)
to
Xxxxxx Xxxxx to be held in escrow pursuant to the terms of the Second Letter
Agreement; and
WHEREAS,
following the completion of the Tender Offer, the Company will use any remaining
funds available in the Loan Reserve (as defined herein) to purchase the
Additional Shares (as defined herein) in accordance with Section 4.1 of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF STOCK
1.1 Purchase
and Sale of the Shares.
Subject
to the terms and conditions of this Agreement, at the Initial Closing (as
defined herein):
(a) The
Sellers shall sell to the Company, and the Company shall purchase from each
of
the Sellers, the Shares designated on Schedule A
at a
purchase price per share of $0.65;
(b) In
accordance with the terms of the Letter Agreement attached hereto as
Schedule B
the
Sellers will deliver to Xxxxxx Xxxxx (with copies to the Company) their stock
certificates representing the Shares, accompanied by medallion guaranteed stock
powers duly executed in blank, together with an executed letter of instruction
from the Sellers to Continental Stock Transfer & Trust Company (the
“Transfer
Agent”)
instructing the Transfer Agent to issue to the Company a new stock certificate
representing the Shares purchased by the Company (which shall be retired upon
receipt) pursuant to this Agreement (collectively, the “Transfer
Documentation”).
(c) In
accordance with the terms of the Letter Agreement, upon delivery to the Company
of a copy of the Transfer Documentation, Xxxxxx Xxxxx shall release: (i) the
Purchase Price to Xxxxxxx, and (ii) the Transfer Documentation to the Transfer
Agent, without any further action by the Company.
1.2 Purchase
and Sale of the Additional Shares.
Subject
to the terms and conditions of this Agreement, at the Final Closing (as defined
herein):
(a) Each
of
the Sellers shall sell to the Company, in proportion to their respective share
ownership percentage, and the Company shall purchase from each of the Sellers,
the Additional Shares (as defined herein), if any, at the Tender Offer
Price;
(b) In
accordance with the terms of the Second Letter Agreement attached hereto as
Schedule C
the
Sellers will deliver to Xxxxxx Xxxxx (with copies to the Company) their stock
certificates representing the Additional Shares, accompanied by medallion
guaranteed stock powers duly executed in blank, together with an executed letter
of instruction from the Sellers to the Transfer Agent instructing the Transfer
Agent to issue to the Company new stock certificates representing the Additional
Shares purchased by the Company (which shall be retired upon receipt) pursuant
to this Agreement (collectively, the “Second
Transfer Documentation”).
2
(c) In
accordance with the terms of the Second Letter Agreement, upon delivery to
the
Company of a copy of the Second Transfer Documentation, Xxxxxx Xxxxx shall
release: (i) the Purchase Price to Xxxxxxx, and (ii) the Second Transfer
Documentation to the Transfer Agent, without any further action by the
Company.
1.3 Closing.
The
closing for the purchase of the Shares (the “Initial
Closing”)
shall
take place on the date on which the conditions set forth in Section 5.1 are
satisfied or waived (the date on which the Closing occurs is referred to herein
as the “Initial
Closing Date”).
The
closing for the purchase of any Additional Shares (the “Final
Closing”)
shall
take place no earlier than eleven (11) business days after the expiration of
the
Tender Offer and no later than 12 business days after the expiration of the
Tender Offer (the date on which the Final Closing occurs is referred to herein
as the “Final
Closing Date”).
The
Initial Closing and the Final Closing shall take place at the offices of Xxxxxx,
Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and
the Initial Closing and the Final Closing shall be effective as of the close
of
business on the Initial Closing Date and the Final Closing Date, respectively.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to each of the Sellers as
follows:
2.1 Organization,
Standing and Power.
The
Company is duly organized, validly existing and in good standing under the
laws
of the State of New York, and has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereby and the
execution and delivery of this Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
2.2 Consents
and Approvals.
No
consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required
by
or with respect to the Company in connection with the execution and delivery
of
this Agreement by the Company or the consummation by it of the transactions
contemplated hereby.
2.3 No
Conflict.
The
execution and delivery of this Agreement does not, and the consummation of
the
transactions contemplated hereby will not, conflict with or result in a breach
or violation of, or a default under, (a) the Company’s organizational
documents or (b) any contract, agreement or instrument by which the Company
or any of the Company’s properties is bound or any judgment, order, decree,
statute, rule, regulation or other law to which the Company or its properties
or
assets is subject.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
Each
of
the Sellers represent and warrant to the Company as follows:
3.1 Organization,
Standing and Power.
Each of
the Sellers is duly organized, validly existing and in good standing under
the
laws of the State of Delaware, and has all requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereby and
the
execution and delivery of this Agreement constitutes a legal, valid and binding
obligation of each of the Sellers, enforceable against each of the Sellers
in
accordance with its terms.
3
3.2 Ownership
of Shares.
Each
Seller is the sole record and beneficial owner of their respective Shares and
Additional Shares and sole owner of all interests in the Shares and Additional
Shares. When paid for in accordance with the terms of this Agreement, the Shares
and Additional Shares will be transferred to the Company free of any liens,
claims, restrictions, security interests or encumbrances, except for
restrictions on transfer provided for under the Securities Act.
3.3 Consents
and Approvals.
No
consent, approval, order or authorization of, or registration, declaration
or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required
by
or with respect to the Sellers in connection with the execution and delivery
of
this Agreement by each of the Sellers or the consummation by them of the
transactions contemplated hereby.
3.4 No
Conflict.
The
execution and delivery of this Agreement does not, and the consummation of
the
transactions contemplated hereby will not, conflict with or result in a breach
or violation of, or a default under, (a) the Sellers’ organizational
documents or (b) any contract, agreement or instrument by which the Sellers
or any of the Sellers’ properties is bound or any judgment, order, decree,
statute, rule, regulation or other law to which the Sellers or its properties
or
assets is subject.
ARTICLE
IV
COVENANTS
4.1 Tender
Offer.
Immediately following the Initial Closing, the Company agrees to proceed with
the Tender Offer to all shareholders at the Tender Offer Price. The Sellers
hereby represent that they do not intend to participate in the Tender Offer.
The
Company shall use the funds representing the Loan Reserve (defined herein)
to
purchase the Tender Offer Shares in the Tender Offer. To the extent that the
shareholders do not tender their shares in the Company’s Tender Offer, and some
or all of the Tender Offer Funds have not been used in the Tender Offer, the
Company will utilize all remaining available funds in the Loan Reserve to
purchase and retire additional shares (the “Additional
Shares”)
from
the Sellers, in proportion to their respective share ownership percentage,
at
the Tender Offer Price in accordance with Section 1.2 of this
Agreement.
4.2 Terminated
Stockholders’ Agreement.
The
Company and the Sellers agree that, as of the Initial Closing Date, that certain
Stockholders’ Agreement dated as of March 30, 1999 (the “Stockholders’
Agreement”),
among
Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxxxx (the “Individuals”),
the
Company and the Sellers is hereby terminated and rendered null and void, and
each of the Sellers shall have no further rights or obligations pursuant to
the
Stockholders’ Agreement. Additionally, following the Initial Closing, the
Company will cause the Individuals to provide the necessary consents or
approvals to release each of the Sellers from any further rights and obligations
pursuant to the Stockholders’ Agreement.
4.3 Terminated
Registration Rights Agreement.
The
Company and the Sellers agree that, as of the Initial Closing Date, that certain
Registration Rights Agreement dated as of March 30, 1999 (the “Registration
Rights Agreement”),
between the Company and the Sellers is hereby terminated and rendered null
and
void, and each of the Sellers shall have no further rights or obligations
pursuant to the Registration Rights Agreement.
4
ARTICLE
V
CONDITIONS
TO CLOSING
5.1 Conditions
to the Obligations of the Sellers and the Company.
The
obligations of the Sellers and the Company to consummate the transactions
contemplated hereby are subject to the satisfaction on the Initial Closing
Date
of the following conditions, compliance with which, or the occurrence of which,
may be jointly waived in writing prior to the Initial Closing Date by the
Sellers and the Company in their sole discretion:
(a) The
execution and delivery of those certain Stock Purchase Agreements dated as
of
the date hereof, between Xxxxxxx Fund I and Management.
(b) Evidence
in a form reasonably satisfactory to the Seller that a reserve has been
established under the Amended and Restated Loan Agreement between the Company
and Keltic Financial Partners, LP, dated April 18, 2006, in the amount of
$1,307,550 (the “Loan
Reserve”),
which
Loan Reserve may be used only to make payment to those shareholders who tender
shares in the Company’s Tender Offer and/or, to the extent the shareholders do
not tender their shares in the Tender Offer, to make payment to Sellers for
the
purchase by the Company of the Additional Shares in accordance with Section
4.1
above.
ARTICLE
VI
MISCELLANEOUS
6.1 Waiver,
Amendment.
No
amendment of any provision of this Agreement shall be valid unless such
amendment is in writing and signed by each party hereto. No waiver by any party
hereto of any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence. No waiver shall be valid unless such waiver is
in
writing and signed by the party against whom such waiver is sought to be
enforced.
6.2 Assignability.
Except
as otherwise provided under this Agreement, neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by any party hereto without the prior written consent of
the
Sellers (in the event of an assignment by the Company).
6.3 Headings.
The
headings used in this Agreement are for convenience of reference only and shall
not affect in any way the meaning or interpretation of this
Agreement.
6.4 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of New York.
6.5 Consent
to Jurisdiction and Service of Process.
EACH
PARTY HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF NEW YORK IN THE STATE OF NEW YORK
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE LITIGATED IN SUCH
COURTS. EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES
TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT
OR
THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO
THE SERVICE OF PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING.
5
6.6 Waiver
of Jury Trial.
EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO.
6.7 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart to this Agreement.
6.8 Binding
Effect.
The
provisions of this Agreement shall be binding upon and accrue to the benefit
of
the parties hereto and their respective heirs, legal representatives, and
permitted successors and assigns.
6.9 Entire
Agreement; Third-Party Beneficiaries.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof. Except as otherwise expressly
provided in this Agreement, no third-party beneficiaries are intended or shall
be deemed to be created hereby.
6.10 Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will
be
construed and enforced as if such provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by such provision or its severance herefrom
and
(d) in lieu of such provision, there will be added automatically as a part
of
this Agreement a legal, valid and enforceable provision as similar in terms
to
such provision as may be possible.
6.11 Specific
Performance.
Each of
the parties to this Agreement agrees and acknowledges that any breach by any
party of its obligations under this Agreement could not be adequately
compensated for by damages. Accordingly, if either of the parties breaches
its
obligations under this Agreement, the other party shall be entitled, in addition
to any other remedy that they may have, to obtain enforcement of this Agreement
by decree of specific performance.
6.12 Further
Assurances.
Each of
the parties shall execute such documents and perform such further acts as may
be
reasonably required or desirable to carry out or to perform the provisions
of
this Agreement.
[Signature
page follows.]
6
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first set forth above.
XXXXXXX
US DISCOVERY FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
/s/
Xxxxxx X. Xxxx
Name:
Title:
XXXXXXX
US DISCOVERY OFFSHORE FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
/s/
Xxxxxx X. Xxxx
Name:
Title:
XXXXXX
TECHNOLOGIES, INC.
By:
/s/
Xxxxx
X. Xxxxxxx
Name:
Title:
Signature
Page to Stock Purchase Agreement
Schedule
A
|
Sellers
|
Shares
|
Purchase
Price
|
||
|
XXXXXXX
FUND I
|
3,620,017
|
$2,353,011.00
|
||
|
XXXXXXX
FUND II
|
2,060,783
|
$1,339,509.00
|
Schedule
B
May
30,
2007
Xxxxxxx
US Discovery Fund III, X.X.
Xxxxxxx
US Discovery Offshore Fund III, L.P.
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxx
Xxxxxx
Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxxxxx
Xxxxx
X.
Xxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
Xxxxx
X.
Xxxxxxx
Xxxxx
X.
Xxxxxxx
Xxxxxx
Xxxxx
c/x
Xxxxxx Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Re:
Letter Agreement regarding Escrow Closing
Dear
Gentlemen:
This
Letter Agreement (“Letter
Agreement”)
is
made in reference to (i) a proposed Stock Purchase Agreement, to be entered
into
on or about June 8, 2007, among Xxxxxxx US Discovery Fund III, L.P., Xxxxxxx,
US
Discovery Offshore Fund III, L.P. (collectively, “Xxxxxxx”)
and
Xxxxxx Technologies, Inc. (the “Company”),
and
(ii) proposed Stock Purchase Agreements, to be entered into on or about June
8,
2007, among Xxxxxxx US Discovery Fund III, L.P. and each of Xxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, and Xxxxxx Xxxxx
(collectively, the “Purchasers”)(the
stock purchase agreements referred to in clauses (i) and (ii) above are
hereinafter collectively referred to as, the “Stock
Purchase Agreements”).
The
purpose of this Letter Agreement is to set out the limited role of Xxxxxx,
Xxxxx
& Bockius LLP (“Xxxxxx
Xxxxx”)
as
escrow
agent for the Purchase Price (as defined herein).
The
Company, the Purchasers and Xxxxxxx desire to close the transactions
contemplated by the Stock Purchase Agreements on or about June 8, 2007, or
on
such other date as the parties agree.
By
acceptance of this Letter Agreement, the parties hereby confirm and agree as
follows:
2
1. Escrow
Deposit.
The
Company and the Purchasers will deliver by wire transfer to Xxxxxx Xxxxx, to
hold on deposit in the Xxxxxx Xxxxx attorney trust account (“Attorney
Trust Account”),
the
following respective amounts, representing the anticipated purchase price under
each of the respective Stock Purchase Agreements (collectively, the
“Purchase
Price”):
|
Purchaser
|
Anticipated
Purchase Price
|
|||
|
Xxxxxx
Technologies, Inc.
|
$
|
3,692,520.00
|
||
|
Xxxxx
X. Xxxxxx
|
$
|
4,199,975.00
|
||
|
Xxxxxxx
X. Xxxxxxxxxxx
|
$
|
1,300,000.00
|
||
|
Xxxxx
X. Xxxxxxx
|
$
|
210,015.00
|
||
|
Xxxxx
X. Xxxxxxx
|
$
|
189,995.00
|
||
|
Xxxxxx
Xxxxx
|
$
|
100,035.00
|
||
|
Total
|
$
|
9,692,540.00
|
The
Purchase Price represents the total consideration to be paid in connection
with
the stock purchase transactions pursuant to the proposed Stock Purchase
Agreements. Xxxxxx Xxxxx will hold the Purchase Price in a non-interest bearing
account with Citibank, N.A. in New York, New York. No later than one (1)
business day following its receipt of all of the funds constituting the Purchase
Price, Xxxxxx Xxxxx shall send confirmation to Xxxxxxx and the Company of its
receipt, and deposit into its Attorney Trust Account, of the Purchase Price.
Confirmation shall be sent via facsimile to the Company at (000) 000-0000,
and
to Xxxxxxx at (000)
000-0000.
2. Transfer
Documentation.
The
closing for the transactions contemplated by the Stock Purchase Agreements
(the
“Closing”)
shall
take place no
later
than (3) business days following confirmation by Xxxxxx Xxxxx of receipt of
the
Purchase Price. At the Closing, the parties will execute and exchange their
respective Stock Purchase Agreements and Xxxxxxx will deliver to Xxxxxx Xxxxx
(a
copy of which shall be provided to the Company) its stock
certificates representing the shares being sold pursuant to the Stock Purchase
Agreements, accompanied by medallion guaranteed stock powers duly executed
in
blank, together with an executed letter of instruction from the Sellers to
Continental Stock Transfer & Trust Company (the “Transfer
Agent”)
instructing the Transfer Agent to issue to the Company and each of the
Purchasers new stock certificates representing the shares of the common stock
of
the Company purchased by the Company (which shall be retired upon receipt)
and
each of the Purchasers pursuant to their respective Stock Purchase Agreements
(collectively, the “Transfer
Documentation”).
3. Release
of Purchase Price.
Upon
delivery to the Company of a copy of the Transfer Documentation, Xxxxxx Xxxxx
shall release (i) the Purchase Price to Xxxxxxx and (ii) the Transfer
Documentation to the Transfer Agent, without any further action by the Company
or the Purchasers.
4. Termination.
If the
Closing does not within ten (10) days of confirmation by Xxxxxx Xxxxx of receipt
of the Purchase Price, Xxxxxx Xxxxx shall return to the Company and the
Purchasers their respective portion of the Purchase Price without interest
or
deduction.
5. Indemnification.
Each
of
Xxxxxxx, the Company and the Purchasers agree: (a) to indemnify, defend
and hold harmless Xxxxxx Xxxxx and its partners, employees and agents for
any and all claims, liabilities, obligations, losses, damages, costs, fines,
fees, penalties, deficiencies and out-of-pocket expenses (including without
limitation reasonable attorneys’ fees) suffered, incurred or sustained by any of
them or to which any of them becomes subject resulting from, arising out of
or
relating to an action suit or other claim which in any way, directly or
indirectly arises out of or relates to this Letter Agreement or the performance
by any such person or entity hereunder, except to the extent caused by the
gross
negligence or willful misconduct of any such person or entity hereunder;
(b) to indemnify Xxxxxx Xxxxx for any failure or error on the part of
Citibank, N.A. to execute instructions received from authorized Xxxxxx Xxxxx
attorneys or staff and for any circumstance of financial failure of Citibank,
N.A. and (c) that it has no objection to, and waives any conflicts arising
from,
the representation by Xxxxxx Xxxxx’ role as limited escrow agent pursuant to the
terms of this Letter Agreement.
3
6. Notices.
All
notices, requests, demands, claims and other communications to any party
hereunder shall be in writing and shall be deemed to be effective and to have
been duly given on the next business day if delivered by a nationally recognized
overnight courier, or on the same day if delivered by hand against written
receipt, or sent by facsimile, addressed as follows:
if
to
Xxxxxxx, addressed to it at the following address, or at such other address
as
it shall have furnished to Xxxxxx Xxxxx in writing:
Xxxxxxx
US Discovery Fund III, X.X.
Xxxxxxx
US Discovery Offshore Fund III, L.P.
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxx X. Xxxx
with
a
copy to:
Xxxxxx,
Xxxxx & Xxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxx, Esq.
if
to the
Company, addressed to it at the following address, or at such other address
as
it shall have furnished to Xxxxxx Xxxxx in writing:
Xxxxxx
Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx X. Xxxxxxxxxxx
with
a
copy to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Seer, Esq.
if
to a
Purchaser, addressed to him in care of the following address, or at such other
address as he shall have furnished to Xxxxxx Xxxxx in writing:
4
c/x
Xxxxxx Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
if
to
Xxxxxx Xxxxx, addressed to it at the following address:
Xxxxxx,
Xxxxx & Bockius LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxx, Esq.
7. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
Please
acknowledge your agreement to and acceptance of the terms of this Letter
Agreement by signing in the space provided below.
| Very truly yours, | ||
| XXXXXX, XXXXX & BOCKIUS LLP | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
| Title: Partner | ||
Accepted
and agreed:
XXXXXXX
US DISCOVERY FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
/s/
Xxxxxx X. Xxxx
Name:
Title:
XXXXXXX
US DISCOVERY OFFSHORE FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
/s/
Xxxxxx X. Xxxx
Name:
Title:
XXXXXX
TECHNOLOGIES, INC.
By:
/s/
Xxxxx
X. Xxxxxxx
Name:
Title:
/s/
Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxxx
/s/
Xxxxx
X. Xxxxxx
Xxxxx X. Xxxxxx
/s/
Xxxxx
X. Xxxxxxx
Xxxxx X. Xxxxxxx
/s/
Xxxxx
X. Xxxxxxx
Xxxxx X. Xxxxxxx
/s/
Xxxxxx Xxxxx
Xxxxxx Xxxxx
2
Schedule
C
[·],
2007
Xxxxxxx
US Discovery Fund III, X.X.
Xxxxxxx
US Discovery Offshore Fund III, L.P.
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxx
Xxxxxx
Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxxxxx
Re:
Second Letter Agreement regarding Escrow Closing
Dear
Gentlemen:
This
Second Letter Agreement (“Letter
Agreement”)
is
made in reference to that certain Stock Purchase Agreement, dated as of June
[·],
2007,
among Xxxxxxx US Discovery Fund III, L.P., Xxxxxxx US Discovery Offshore Fund
III, L.P. (collectively, “Xxxxxxx”)
and
Xxxxxx Technologies, Inc. (the “Company)
(the
“Stock
Purchase Agreement”).
The
purpose of this Letter Agreement is to set out the limited role of Xxxxxx,
Xxxxx
& Xxxxxxx LLP (“Xxxxxx
Xxxxx”)
as
escrow
agent for the Purchase Price (as defined herein).
The
Company and Xxxxxxx desire to close the transactions contemplated by Section
1.2
of the Stock Purchase Agreement on or about [·],
2007,
or on such other date as the parties agree.
By
acceptance of this Letter Agreement, the parties hereby confirm and agree as
follows:
1. Escrow
Deposit.
The
Company will deliver by wire transfer to Xxxxxx Xxxxx, to hold on deposit in
the
Xxxxxx Xxxxx attorney trust account (“Attorney
Trust Account”),
the
following amount, representing the anticipated purchase price for the Additional
Shares (as defined in Section 4.1 of the Stock Purchase Agreement) under
Section 1.2 of the Stock Purchase Agreement (the “Purchase
Price”):
| Purchaser |
Anticipated
Purchase Price
|
|||
| Xxxxxx Technologies, Inc. | $ | [1,307,500.00 | ] | |
| Total | $ | [1,307,500.00 | ] | |
3
The
Purchase Price represents the total consideration to be paid in connection
with
transactions contemplated by Section 1.2 of the Stock Purchase Agreement. Xxxxxx
Xxxxx will hold the Purchase Price in a non-interest bearing account with
Citibank, N.A. in New York, New York. No later than one (1) business day
following its receipt of all of the funds constituting the Purchase Price,
Xxxxxx Xxxxx shall send confirmation to Xxxxxxx and the Company of its receipt,
and deposit into its Attorney Trust Account, of the Purchase Price. Confirmation
shall be sent via facsimile to the Company at (000) 000-0000, and to Xxxxxxx
at
(000)
000-0000.
2. Transfer
Documentation.
The
closing for the transactions contemplated by Section 1.2 of the Stock Purchase
Agreement (the “Closing”)
shall
take place no
later
than (3) business days following confirmation by Xxxxxx Xxxxx of receipt of
the
Purchase Price. At the Closing, Xxxxxxx will deliver to Xxxxxx Xxxxx (a copy
of
which shall be provided to the Company) its stock
certificates representing the shares being sold pursuant to Section 1.2 of
the
Stock Purchase Agreement, accompanied by medallion guaranteed stock powers
duly
executed in blank, together with an executed letter of instruction from Xxxxxxx
to Continental Stock Transfer & Trust Company (the “Transfer
Agent”)
instructing the Transfer Agent to issue to the Company a new stock certificate
representing the shares of the common stock of the Company purchased by the
Company (which shall be retired upon receipt) pursuant to the Stock Purchase
Agreement (collectively, the “Transfer
Documentation”).
3. Release
of Purchase Price.
Upon
delivery to the Company of a copy of the Transfer Documentation, Xxxxxx Xxxxx
shall release (i) the Purchase Price to Xxxxxxx and (ii) the Transfer
Documentation to the Transfer Agent, without any further action by the
Company.
4. Termination.
If the
Closing does not within ten (10) days of confirmation by Xxxxxx Xxxxx of receipt
of the Purchase Price, Xxxxxx Xxxxx shall return to the Company the Purchase
Price without interest or deduction.
5. Indemnification.
Each
of
Xxxxxxx and the Company agree: (a) to indemnify, defend and hold harmless
Xxxxxx Xxxxx and its partners, employees and agents for any and all claims,
liabilities, obligations, losses, damages, costs, fines, fees, penalties,
deficiencies and out-of-pocket expenses (including without limitation reasonable
attorneys’ fees) suffered, incurred or sustained by any of them or to which any
of them becomes subject resulting from, arising out of or relating to an action
suit or other claim which in any way, directly or indirectly arises out of
or
relates to this Letter Agreement or the performance by any such person or entity
hereunder, except to the extent caused by the gross negligence or willful
misconduct of any such person or entity hereunder; (b) to indemnify Xxxxxx
Xxxxx for any failure or error on the part of Citibank, N.A. to execute
instructions received from authorized Xxxxxx Xxxxx attorneys or staff and for
any circumstance of financial failure of Citibank, N.A. and (c) that it has
no
objection to, and waives any conflicts arising from, the representation by
Xxxxxx Xxxxx’ role as limited escrow agent pursuant to the terms of this Letter
Agreement.
6. Notices.
All
notices, requests, demands, claims and other communications to any party
hereunder shall be in writing and shall be deemed to be effective and to have
been duly given on the next business day if delivered by a nationally recognized
overnight courier, or on the same day if delivered by hand against written
receipt, or sent by facsimile, addressed as follows:
4
if
to
Xxxxxxx, addressed to it at the following address, or at such other address
as
it shall have furnished to Xxxxxx Xxxxx in writing:
Xxxxxxx
US Discovery Fund III, X.X.
Xxxxxxx
US Discovery Offshore Fund III, L.P.
0000
Xxxxxx xx xxx Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxx X. Xxxx
with
a
copy to:
Xxxxxx,
Xxxxx & Xxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxx, Esq.
if
to the
Company, addressed to it at the following address, or at such other address
as
it shall have furnished to Xxxxxx Xxxxx in writing:
Xxxxxx
Technologies, Inc.
000
Xxxxx
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx X. Xxxxxxxxxxx
with
a
copy to:
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Seer, Esq.
if
to
Xxxxxx Xxxxx, addressed to it at the following address:
Xxxxxx,
Xxxxx & Bockius LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxx, Esq.
7. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of New York.
5
Please
acknowledge your agreement to and acceptance of the terms of this Letter
Agreement by signing in the space provided below.
| Very truly yours, | ||
| XXXXXX, XXXXX & BOCKIUS LLP | ||
| |
|
|
| By: | ||
|
Name: Xxxxx X. Xxxxxx |
||
| Title:Partner | ||
Accepted
and agreed:
XXXXXXX
US DISCOVERY FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
Name:
Title:
XXXXXXX
US DISCOVERY OFFSHORE FUND III, L.P.
By:
Xxxxxxx US Discovery Partners, L.P.,
its
general partner
By:
Xxxxxxx US Discovery, LLC,
its
general partner
By:
Name:
Title:
XXXXXX
TECHNOLOGIES, INC.
By:
Name:
Title:
