EX-10.1 2 d723710dex101.htm EX-10.1 EXECUTION VERSION STOCK PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
THIS STOCK PURCHASE AGREEMENT, dated as of May 12, 2014 (this “Agreement”), is by and among HC2 Holdings, Inc., a Delaware corporation (the “Purchaser”), SAS Venture LLC, a Delaware limited liability company (the “Seller”) and, solely for purposes of Sections 4.1 and 4.2, Xxxxx X Xxxxxx. The Seller and the Purchaser are hereinafter collectively referred to as the “Parties”, and each individually as a “Party.”
ARTICLE I
W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Concurrently with receipt by the Purchaser of evidence of transfer of the Shares delivered to the transfer agent, the Purchaser shall deliver and transfer the Purchase Price by wire transfer of immediately available funds to an account as is designated in a written notice by the Seller delivered to the Purchaser prior to the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
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ARTICLE IV
(a) amend its charter, certificate or articles of incorporation or formation, bylaws, operating agreement or other constituent or organizational document (whether by merger, consolidation or otherwise);
(b) split, combine or reclassify any Capital Stock of the Company or any of its subsidiaries (whether by merger, consolidation or otherwise);
(c) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Capital Stock of the Company or any of its subsidiaries (whether by merger, consolidation or otherwise);
(d) redeem, repurchase or otherwise acquire any Capital Stock of the Company or any of its subsidiaries (whether by merger, consolidation or otherwise);
(e) issue, deliver or sell any Capital Stock of the Company or any of its subsidiaries (whether by merger, consolidation or otherwise), other than the issuance of any Capital Stock of any wholly owned subsidiary of the Company to the Company or any other wholly owned subsidiary of the Company;
(f) amend any term of any Capital Stock of the Company or any of its subsidiaries (whether by merger, consolidation or otherwise);
(g) increase the compensation or benefits of any current or former director, officer, employee or consultant of the Company or any of its subsidiaries;
(h) grant or increase any severance, retention, change-of-control or similar payments to any current or former director, officer, employee or consultant of the Company or any of its subsidiaries;
(i) create, incur, assume or guarantee any indebtedness for borrowed money, other than borrowings in the ordinary course of business under any credit facility in effect as of the date of this Agreement; or
(j) agree, commit or offer to do any of the foregoing.
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4.2 Non-Competition; Non-Solicitation.
(a) In order for the Purchaser to have and enjoy the full benefit of the Shares, and as a material inducement to the Purchaser to enter into this Agreement (without such inducement the Purchaser would not have entered into this Agreement), for a period of five years commencing on the date of the Closing, each of Xxxxx X. Xxxxxx and the Seller shall not, directly or indirectly (whether by himself or itself, through an Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person):
(i) undertake, participate or carry on or be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person in connection with the operation of, the business of structural steel fabrication and erection or the manufacture of specialty products including pollution control scrubbers, tunnel liners, pressure vessels and other related products primarily for the oil and gas industry (the “Competing Business”) anywhere in the world, other than with respect to Xxxxx X. Xxxxxx’x continued involvement with the Company;
(ii) solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any employee of the Purchaser, the Company or any of their respective Affiliates to resign or leave the employ of the Purchaser, the Company or any of their respective Affiliates or otherwise hire, employ, engage or contract any such employee to perform services other than for the benefit of the Purchaser, the Company or any of their respective Affiliates; or
(iii) solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any customer of the Purchaser, the Company or any of their respective Affiliates (including any Person who has been a customer of the Company or any of its subsidiaries at any time during the period of 12 months before the Closing) to alter, reduce or terminate its business relationship with the Purchaser, the Company or any of their respective Affiliates for the direct or indirect benefit of any Competing Business.
(b) Notwithstanding anything to the contrary set forth herein, in the event of a breach of any of the provisions of Section 4.2(a) (the “Restrictive Covenants”):
(i) the Purchaser and its Affiliates shall have the right and remedy, without regard to any other available remedy, to (A) have the Restrictive Covenants specifically enforced by any court of competent jurisdiction and (B) have issued an injunction restraining any such breach without posting of a bond; it being understood that any breach of any of the Restrictive Covenants would cause irreparable and material loss to the Purchaser and its Affiliates, the amount of which cannot be readily determined and as to which neither the Purchaser nor any of its Affiliates will have any adequate remedy at law or in damages;
(ii) it is the desire and intent of the parties hereto that the Restrictive Covenants be enforced to the fullest extent permissible under the laws, orders and public policies applied in each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or unenforceable, such Restrictive Covenant shall be deemed amended to the extent necessary in order that such provision be valid and enforceable, the remainder of such Restrictive Covenant shall not thereby be affected and shall be given full effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and
(iii) the parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the value and the goodwill of the Shares and the Company’s business and are reasonable and valid in geographical and temporal scope and in all other respects.
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4.4 Further Action; Filings and Authorizations.
(a) Upon the terms and subject to the conditions of this Agreement, each party will use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other party or parties hereto in doing all things necessary, proper or advisable under applicable law to consummate and make effective, the transactions contemplated by this Agreement, including using commercially reasonable efforts to (i) cause the conditions set forth in Article V to be satisfied, (ii) obtain all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Authorities and other Persons from whom any actions, non-actions, waivers, consents, approvals, orders or authorizations are required and make all necessary registrations, declarations and filings with any Governmental Authorities and other Persons with whom any registrations, declarations or filings are required, and (iii) execute or deliver any additional instruments reasonably necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(b) In furtherance and not in limitation of the foregoing, each party hereto agrees to file a Notification and Report Form pursuant to the HSR Act no later than the fifth business day after the date hereof and any similar filings required under the antitrust laws of such other jurisdictions for which similar filings are required with respect to the transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act or such other antitrust laws and to take all other actions necessary, proper or advisable to cause the expiration, termination or waiver of the applicable waiting periods and to achieve the necessary clearance decisions under the HSR Act and such other applicable antitrust laws as soon as practicable. Purchaser shall pay any and all fees owing to the Governmental Authorities required pursuant to HSR Act.
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(c) The Purchaser, on the one hand, and the Seller, on the other hand, will, in connection with the efforts referenced in Section 4.4(b) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other antitrust law or other applicable law, use commercially reasonable efforts to (i) cooperate and coordinate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) supply the other party with any information that may be reasonably required to make such filings or submissions, (iii) supply the other party with any additional information that may be required or requested by any Governmental Authorities in connection with such filings or submissions, (iv) keep the other party informed of any communication received by such party or an Affiliate of such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”), or any other Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (v) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ, or any other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ, or other applicable Governmental Authority or other Person, give the other party the opportunity to attend and participate in such meetings and conferences in accordance with Antitrust Law and (vi) permit the other party to review and incorporate the other party’s reasonable comments in any communication given to it by the FTC, the DOJ or any other Governmental Authority; provided, however, that no such information will be required to be provided by either the Purchaser or the Seller if such party reasonably determines that the provision of such information would jeopardize attorney-client privilege or other legal privilege.
(d) In furtherance and not in limitation of the covenants of the parties contained in Section 4.4(b) and Section 4.4(c), if any objections are asserted with respect to the transactions contemplated by this Agreement under any antitrust law, or if any suit is instituted or threatened to be instituted by the FTC, the DOJ, or any other applicable Governmental Authority or any private party challenging any of the transactions contemplated hereby or otherwise brought under any antitrust law or other applicable law that would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of the Purchaser and the Seller will use commercially reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement as soon as practicable. Notwithstanding any other provision of this Agreement, in using commercially reasonable efforts to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act or any other antitrust law, the Purchaser shall not be required to propose, negotiate, or commit to and effect by consent agreement or decree, hold separate order or otherwise any divestiture, undertaking, licensing or hold separate or similar arrangements.
(e) Subject to the obligations of the parties under Section 4.4(d), in the event that any action, arbitration, audit, claim, demand, examination, external investigation, hearing, inquiry, litigation or suit (each, a “Proceeding”) is instituted (or threatened to be instituted) by a Governmental Authority or private party challenging any transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of the Purchaser and the Seller
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will cooperate in all respects with each other and use commercially reasonable efforts to contest and resist any such Proceeding and to have vacated, lifted, reversed or overturned any judgment, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
ARTICLE V
(a) the Seller has delivered the Shares to the Purchaser or its designated account in suitable form for transfer, together with a properly completed and executed Form W-8 or W-9 or other applicable form or statement (all as specified in Section 1.4);
(b) the representations and warranties of the Seller contained in this Agreement shall have been true and correct at the time of execution of this Agreement and shall be true and correct as of the Closing as if given on and as of the Closing (except for representations and warranties expressly stated to relate to a specific date, in which case each such representation and warranty shall be true and correct as of such earlier date);
(c) the Seller shall have performed and complied with all covenants and agreements required by this Agreement to be performed and complied with by it prior to or on the Closing in all material respects;
(d) all applicable waiting periods under the HSR Act shall have expired or been terminated with respect to the transactions contemplated by this Agreement;
(e) Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx shall have resigned or been removed from the board of directors of the Company; and
(f) immediately after giving effect to the consummation by the Seller of the transactions contemplated by this Agreement, and the fulfillment of and compliance with the terms and conditions of this Agreement, there will not be any breach of, or a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, or any right of payment under or right to terminate, amend, modify, abandon or accelerate, any contract or agreement to which the Company or any of its subsidiaries is a party and do not and will not trigger any material payment to any director, officer, employee, or consultant of the Company or any of its subsidiaries except as set forth on Schedule 5.1(f).
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(a) the Purchaser has delivered the Purchase Price to the Seller or its designated account;
(b) the representations and warranties of the Purchaser contained in this Agreement shall have been true and correct at the time of execution of this Agreement and shall be true and correct in all material respects as of the Closing as if given on and as of the Closing (except for representations and warranties expressly stated to relate to a specific date, in which case each such representation and warranty shall be true and correct as of such earlier date);
(c) the Purchaser shall have performed and complied with all covenants and agreements required by this Agreement to be performed and complied with by it prior to or on the Closing in all material respects; and
(d) all applicable waiting periods under the HSR Act shall have expired or been terminated with respect to the transactions contemplated by this Agreement.
ARTICLE VI
6.1 Termination. This Agreement may be terminated on or prior to the Closing as follows:
(a) by the mutual written consent of the Purchaser and the Seller;
(b) at the election of the Purchaser or the Seller if the Closing shall not have occurred on or before June 15, 2014 (the “Termination Date”); provided, however, that the terminating party is not in material breach of any representation, warranty, covenant or other agreement contained herein at the time of such termination;
(c) by the Purchaser (if it is not in material breach of its representations, warranties, covenants or agreements under this Agreement so as to cause any of the conditions set forth in Section 5.2(b) or 5.2(c) not to be satisfied) and without prejudice to, and not in substitution for any rights or remedies provided by law, upon written notice to the Seller, if there has been a material violation, breach or inaccuracy of any representation, warranty, covenant or agreement of the Seller contained in this Agreement, which violation, breach or inaccuracy would cause any of the conditions set forth in Section 4.2(b) or 4.2(c) not to be satisfied, and such violation, breach or inaccuracy has not been waived by the Purchaser or cured by the Seller, as applicable, within ten (10) business days after receipt by the Seller of written notice thereof from the Purchaser or is not reasonably capable of being cured prior to the Termination Date; or
(d) by the Purchaser or the Seller if a court of competent jurisdiction or other Governmental Authority shall have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated under this Agreement and such order or action shall have become final and non-appealable.
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and effect; provided, however, that none of the parties hereto shall have any liability in respect of a termination of this Agreement, except that the provisions of Section 7.6 (Governing Law; Consent to Jurisdiction; Waiver of Jury Trial), Section 7.10 (Fees and Expenses), and Section 7.11 (Survival; Breach of Agreement) shall survive the termination of this Agreement and that nothing herein shall relieve any party from any liability for any Willful Breach of the provisions of this Agreement prior to the termination of this Agreement. For purposes of this Agreement, “Willful Breach” means, with respect to any representation, warranty, agreement or covenant set forth in this Agreement, an intentional action or omission by a party that both (a) causes such party to be in breach of such representation, warranty, agreement or covenant and (b) such party knows at the time of such intentional action or omission is or would constitute a breach, or would reasonably be expected to result in a breach, of such representation, warranty, agreement or covenant.
ARTICLE VII
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an equivalent, recognized courier service. Such notices and communications shall be sent to the appropriate Party at its address or email address given below or at such other address or email address for such Party as shall be specified by notice given under this Agreement (and shall be deemed given upon receipt by such Party or upon actual delivery to the appropriate address, or, in case of an email transmission, upon transmission by the sender; any email transmission shall be promptly acknowledged by the recipient):
(a) if to the Seller, to:
c/o Plattner, Schneidman, Xxxxxxxxx and Xxxxxxxx, P.C. | ||
0000 X. Xxxxxx Xxxx Xxxxx | ||
Xxxxxxxxxx, XX 00000 | ||
Attention: | Xxxx Xxxxxxxxxx | |
Email: | xxxxxxxxxxx@xxxxxxx.xxx | |
Facsimile: | (000) 000-0000 |
(b) if to the Purchaser, to:
000 Xxxxxxx Xxxxxxx, Xxxxx 000 | ||
Xxxxxxx, XX 00000 | ||
Attention: | Xxxxxx X. Xxxxxxx | |
Email: | XXxxxxxx@xxxxxxxxxxxxxxxx.xxx |
7.6 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made between residents of that state, executed in and to be performed entirely within that state, notwithstanding the Parties’ actual respective states of legal domicile. All actions and proceedings arising out of or relating to this Agreement and the transactions contemplated hereby shall be heard and determined exclusively in any state or federal court located in the Southern District of New York, New York, and the Parties hereby irrevocably submit to the exclusive jurisdiction of such court in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding. Each Party irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such Party at its address specified in Section 7.5. The Parties agree that a final, non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 7.6 shall affect the right of any Party to serve legal process in any other manner permitted by law. The consents to jurisdiction set forth in this Section 7.6 shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this Section 7.6 and shall not be deemed to confer rights on any Person other than the Parties.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT
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HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.6(b).
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of the offending term or provision in any other situation or in any other jurisdiction, and the remaining terms and provisions shall remain in full force and effect to the fullest extent permitted by law.
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[SIGNATURE PAGE FOLLOWS]
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PURCHASER | ||||
HC2 HOLDINGS, INC. | ||||
By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | Executive Chairman |
SELLER | ||
SAS VENTURE LLC | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Manager | ||
Solely for purposes of Sections 4.1 and 4.2: | ||
/s/ Xxxxx X. Xxxxxx | ||
Xxxxx X. Xxxxxx |