Exhibit 3
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Execution Copy
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), is dated as of
November 27, 1996, by and among each of the undersigned securityholders
(individually, a "Securityholder" and collectively, the "Securityholders") of
Central Tractor Farm & Country, Inc., a Delaware corporation ("Company"), X.X.
Childs Equity Partners, L.P., a Delaware limited partnership ("Childs"), and
JWC Acquisition I, Inc., a Delaware corporation and an indirect, wholly-owned
subsidiary of Childs ("Acquiror").
RECITALS
A. Each Securityholder is the beneficial and record owner of the number
of shares, if any, of common stock, par value $.01 per share, of Company
("Company Common Stock") and Company option securities ("Company Option
Securities") set forth opposite such Securityholder's name on Schedule A
hereto.
B. Each Securityholder is the beneficial and record owner of Company
Convertible Securities, if any, and Company Option Securities, if any, (which
under existing circumstances may be converted into or exercised for the number
of shares of Company Common Stock set forth opposite each such Securityholder's
name on Schedule A hereto) set forth opposite such Securityholder's name on
Schedule A hereto.
C. Securityholders desire to sell and transfer (the "Disposition"), and
Acquiror desires to purchase, all shares of Company Common Stock and Company
Option Securities beneficially owned by Securityholders for $14.00 per share,
on the terms and conditions set forth in this Agreement.
D. Childs, Acquiror, JWC Holdings I, Inc., a Delaware corporation and a
subsidiary of Childs ("Acquiror Parent"), and Company have concurrently
herewith entered into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which (i) Acquiror has agreed to pay $14.25 per share (the "Merger
Price") for all the issued and outstanding shares of Company Common Stock,
excluding the Disposition Shares (as defined herein) being sold pursuant to
this Agreement, and (ii) Acquiror will be merged with and into Company (the
"Merger"), with Company continuing as the surviving corporation.
E. In consideration for the agreements contained herein, prior to the
date hereof, and prior to the time at and date on which Childs, Acquiror Parent
or Acquiror became an "interested stockholder" for purposes of Section 203 of
the DGCL, the board of the directors of the Company has approved the agreements
of the Securityholders provided in this Agreement.
F. In order to induce Childs, Acquiror Parent and Acquiror to enter into
the Merger Agreement, the Securityholders wish to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa. The reference to
any gender shall be deemed to include all genders. Capitalized terms used
herein (including in the recitals) but not otherwise defined herein shall have
the respective meanings ascribed thereto in the Merger Agreement. The
following terms shall have the following meanings:
"beneficially own" shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
"Representatives" shall have the meaning set forth in Section
3.4.
"Topping Fee" means, a fee payable by Childs to the
Securityholders, which shall be pro rata in accordance with the number
of Disposition Shares (as defined in Section 2.1) acquired from each
Securityholder pursuant to this Agreement, as an addition to the
Aggregate Purchase Price (as defined in Section 2.2(b) hereof), equal
to (x) 50% of the excess, if any, of any cash or non-cash consideration
received by Childs, Acquiror or any of their Affiliates in connection
with a Topping Fee Event, over the aggregate consideration which would
have been payable to the Securityholders in respect of the Disposition
Shares (calculated using the $14.25 per share Merger Price); provided
that, (i) if the consideration received by Childs or Acquiror or such
Affiliates shall be securities listed on a national securities exchange
or traded on the NASDAQ National Market ("NASDAQ"), the per share value
of such consideration shall be equal to the closing price per share
listed on such national securities exchange or NASDAQ on the date such
transaction is consummated and (ii) if the consideration received by
Childs, Acquiror or such Affiliates shall be in a form other than
securities, the per share value shall be determined in good faith as of
the date such transaction is consummated by Childs and the
Securityholders, or, if Childs and the Securityholders cannot reach
agreement, by a nationally recognized investment banking firm
reasonably acceptable to the parties. In determining the fair market
value of the aggregate consideration received or to be received by a
Securityholder in connection with a Topping Fee Event, all relevant
factors shall be considered including, without limitation, the nature
and timing of the consideration to be paid and the presence of
contingent consideration or of contingent liabilities; provided,
however, that in any event, if, during the 12 month period following
the date of this Agreement, the outstanding shares of Company Common
Stock shall have been changed into a different number of shares or a
different class by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of
shares, the aggregate consideration received or to be received by a
Securityholder in connection with a Topping Fee Event shall be
correspondingly adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of
shares.
"Topping Fee Event" means, (a) a direct or indirect sale or
other disposition by Childs or its Affiliates (other than the Company
pursuant to an offering of its shares of Company Common Stock) of
shares of Company Common Stock, (b) a merger or consolidation of
Company or any of its Subsidiaries with or into another Entity, (c) a
sale or other disposition of all or substantially all of the assets of
Company and its Subsidiaries (whether in one or more transactions) or
(d) any other extraordinary transaction involving Company or any of its
Subsidiaries or any of their respective assets, in each case in which
Childs or any of its Affiliates (other than the Company pursuant to an
offering of its shares of Company Common Stock) receives, cash or non-
cash consideration with respect to any of its shares of Company Common
Stock, provided that such sale, other disposition, merger,
consolidation or other extraordinary transaction is consummated (or a
definitive written agreement with respect thereto is entered into)
within twelve (12) months after the date of this Agreement.
ARTICLE II
SALE OF SECURITIES AND TERMS OF PAYMENT
2.1. The Sale. (a) Initial Disposition. Upon the terms and
subject to the conditions of this Agreement, on the date hereof the
Securityholders will sell, assign, transfer and deliver to Acquiror, and
Acquiror will accept and purchase from Securityholders (the "Initial
Disposition"), 1,048,214 aggregate shares of Company Common Stock (the "Initial
Disposition Shares"). The number of Initial Disposition Shares to be sold by
each of the Securityholders on the date hereof is set forth opposite such
Securityholder's name in Schedule A to this Agreement under the column "Number
of Initial Disposition Shares".
(b) Second Disposition. Upon the terms and subject to the
conditions of this Agreement, on the Second Disposition Effective Date (as
hereinafter defined) the Securityholders will sell, assign, transfer and
deliver to Acquiror, and Acquiror will accept and purchase from the
Securityholders (the "Second Disposition"), (i) 5,783,515 shares of Company
Common Stock, and (ii) the Common Stock Purchase Warrant No. 1 (the "Warrant")
issued on October 5, 1994 (collectively, the "Second Disposition Shares"; and
together with the Initial Disposition Shares, the "Disposition Shares"). The
number of Second Disposition Shares to be sold by each of the Securityholders
on the Second Disposition Effective Date is set forth opposite such
Securityholder's name on Schedule A to this Agreement under the column "Number
of Second Disposition Shares".
2.2. Purchase Price; Manner of Payment. Upon the terms and
subject to the conditions contained in this Agreement, in reliance upon the
representations, warranties and agreements of the Securityholders contained
herein, and in consideration of the Initial Disposition and the Second
Disposition:
(a) On the date hereof Acquiror will pay or cause to be paid
to each Securityholder, in the form of a bank check or certified check payable
to the order of such Securityholder, an amount equal to the product of (x)
$14.00 times (y) the number of Initial Disposition Shares to be sold by such
Securityholder (the "Initial Purchase Price"); and
(b) On the Second Disposition Effective Date, Acquiror will
pay or cause to be paid to each Securityholder, in immediately available funds
by wire transfer to bank accounts designated three (3) business days in advance
by each of the Securityholders or in the form of a bank check or certified
check payable to each of the Securityholders, an amount equal to (i) in the
case of Second Disposition Shares which are shares of Company Common Stock, the
product of (x) $14.00 times (y) the number of Second Disposition Shares to be
sold by such Securityholder, and (ii) in the case of Second Disposition Shares
which are Company Option Securities, a cash payment equal to the product of (x)
the number of shares of Company Common Stock subject to such Company Option
Security and (y) the excess, if any, of $14.00 over the per share exercise
price of the Company Option Security (the "Second Disposition Price" and,
together with the Initial Purchase Price, the "Aggregate Purchase Price").
2.3 Delivery of Stock Certificates. (a) In consideration for
the Initial Purchase Price, each Securityholder shall deliver to Acquiror on
the date hereof a certificate or certificates representing all of the Initial
Disposition Shares owned by such Securityholder which certificates shall name
Acquiror as the owner of such Initial Disposition Shares.
(b) In consideration for the Second Disposition Price, each
Securityholder shall deliver to the Acquiror on the Second Disposition
Effective Date a certificate or certificates representing all of the Second
Disposition Shares owned by such Securityholder together with stock powers duly
executed and endorsed in blank and the Warrant.
Article III
THE SECOND DISPOSITION CLOSING
3.1 Time and Place of Closing. Upon the terms and subject to
the conditions contained in this Agreement, the closing of the Second
Disposition (the "Second Disposition Closing") will take place at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
at 10:00 a.m. on the first business day following the date on which all of the
conditions to each party's obligations hereunder set forth in Article VI hereof
have been satisfied or waived, or such other place or time or both as the
parties may agree; provided however, that in no event will the Second
Disposition Closing occur on or before December 16, 1996. The date and time on
which the Second Disposition Closing actually occurs and the transactions
contemplated in connection therewith become effective is hereinafter referred
to as the "Second Disposition Effective Date".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SECURITYHOLDERS
4.1 Representations and Warranties of the Security-
holders. Each Securityholder represents and warrants, severally but not
jointly, to Childs and Acquiror as follows:
(a) Ownership of Company Securities. Such Securityholder
is the beneficial owner of the shares of Company Common Stock, Company
Convertible Securities and/or Company Option Securities set forth opposite such
Securityholder's name on Schedule A, free and clear of all Encumbrances. There
are no rights, agreements, arrangements or commitments of any character to
which such Securityholder is a party relating to the pledge, disposition or
voting of any shares of capital stock of Company or any of its Subsidiaries
that are owned by such Securityholder or which may be issued to such
Securityholder upon a conversion of Company Convertible Securities or exercise
of Company Option Securities, and there are no voting trusts or voting
agreements with respect to any of such shares or securities. The shares of
Company Common Stock and Company Convertible Securities or Company Option
Securities set forth opposite such Securityholder's name on Schedule A
constitute all of the outstanding shares of capital stock of Company and all
Company Convertible Securities and Company Option Securities owned beneficially
or of record by such Securityholder and, except as disclosed in Schedule A,
such Securityholder does not own beneficially or of record any other capital
stock of Company or Company Convertible Securities or Company Option
Securities.
(b) Authority to Execute and Perform Agreements. Such
Securityholder has the full legal right and power and all authority required to
enter into, execute and deliver this Agreement and to perform fully such
Securityholder's obligations hereunder. The execution and delivery of this
Agreement by such Securityholder have been duly authorized by all requisite
organizational action, if any, on the part of such Securityholder. This
Agreement has been duly executed and delivered and constitutes the legal, valid
and binding obligation of such Securityholder enforceable against such
Securityholder in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect generally affecting
creditors' rights or by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(c) No Conflicts; Consents.
(i) The execution and delivery by such Securityholder
of this Agreement do not, and the consummation of the transactions
contemplated hereby will not, (A) conflict with or result in any
violation of or default (with or without notice or lapse of time or
both) under (I) the Organic Documents of such Securityholder, (II) any
Contractual Obligation or Private Authorization of such Securityholder,
(III) any Applicable Law or (B) create or give rise to any Encumbrance
on any of the shares of Company Common Stock, Company Convertible
Securities or Company Option Securities set forth opposite such
Securityholder's name on Schedule A.
(ii) Except for compliance with and filings under the
HSR Act and compliance with the provisions of Section 203 of the DGCL,
no Governmental Authorizations or Private Authorizations are required
to be obtained or made by such Securityholder in connection with the
execution and delivery by such Securityholder of this Agreement or the
consummation of the transactions contemplated hereby.
(d) Information Supplied. None of the information
specifically supplied or to be supplied by such Securityholder with respect to
such Securityholder for inclusion or incorporation by reference in the Proxy
Statement or Schedule 13E-3 will, at the date such documents are first
published, sent or given to the stockholders of Company, at the time of the
Company Stockholders Meeting or at the Effective Time, contain any untrue
statement of a material fact or omit to state any 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.
4.2 Representations and Warranties of Childs and
Acquiror. Each of Childs and Acquiror represents and warrants to the
Securityholders:
(a) Authority to Execute and Perform Agreements. Each of
Childs and Acquiror has the full legal right and power and all authority
required to enter into, execute and deliver this Agreement and to perform fully
their obligations hereunder. The execution and delivery of this Agreement by
Childs and Acquiror has been duly authorized by all requisite organizational
action, if any, on the part of each of Childs and Acquiror. This Agreement has
been duly executed and delivered and constitutes the legal, valid and binding
obligation of each of Childs and Acquiror enforceable against each of Childs
and Acquiror in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect generally affecting
creditors' rights or by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(b) No Conflicts; Consents.
(i) The execution and delivery by each of Childs and Acquiror
of this Agreement do not, and the consummation of the transactions
contemplated hereby and by the Merger Agreement will not, conflict with
or result in any violation of or default (with or without notice or
lapse of time or both) under (A) the Organic Documents of such person,
(B) any Contractual Obligation or Private Authorization of such person
or (C) any Applicable Law.
(ii) Except for compliance with and filings under the HSR Act
and compliance with the provisions of Section 203 of DGCL, no
Governmental Authorizations or Private Authorizations are required to
be obtained or made by such Securityholder in connection with the
execution and delivery by such Securityholder of this Agreement or the
consummation of the transactions contemplated hereby or by the Merger
Agreement.
(c) Financing. Acquiror Parent or Acquiror (as the case may
be) has all funds, or appropriate commitments for funds (complete copies of
which have been provided to Company), necessary for the purchase of all
outstanding shares of Company Common Stock and Company Option Securities held
by the Securityholders pursuant to this Agreement.
(d) Purchase from Affiliate; Restrictions on Transfer. (i)
Childs and Acquiror acknowledge that Securityholders are "affiliates" of
Company and, accordingly, any shares of Company Common Stock, Company
Convertible Securities and Company Option Securities acquired hereunder will be
"restricted securities" within the meaning of Rule 144 under the Securities Act
and the certificates evidencing any such securities will bear a legend thereon
regarding restrictions on resale.
(ii) Acquiror is purchasing the Disposition Shares (as
defined in Section 2.1 hereof) for its own account and not with a view to, or
for resale in connection with, the distribution thereof in violation of the
Securities Act.
(iii) Each of Childs and Acquiror has such knowledge and
experience in financing and business matters so as to be capable of evaluating
the merits and risks of such investment, is able to incur a complete loss of
such investment and to bear the economic risk of such investment for a long
period of time. Childs is an "accredited investor" as that term is defined in
Regulation D under the Securities Act.
(iv) Each of Childs and Acquiror have made its own inquiry
and investigation into, and based thereon will have formed an independent
judgment concerning, the business, assets, financial condition, results of
operations and liabilities of Company and its Subsidiaries. In connection with
such inquiry and investigation, Childs and Acquiror have received certain
estimates, projections, forecasts, plans and budgets and other forward-looking
information, and Childs and Acquiror acknowledge that (i) there are
uncertainties inherent in the preparation of any such information and they have
taken and will take full responsibility for making their own evaluation of the
accuracy, adequacy and reliability of all such estimates, projections,
forecasts, plans, budgets and other forward-looking information, and (ii) the
Securityholders have not made, and are not hereby making, any representation or
warranty with respect to such information or otherwise relating to the
business, assets, financial condition, results of operations or liabilities of
Company and its Subsidiaries.
ARTICLE V
COVENANTS
5.1 No Disposition of Securities. Each Securityholder
agrees that such Securityholder shall not, except pursuant to this Agreement,
sell, transfer, pledge, hypothecate, encumber or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
the sale, transfer, pledge, hypothecation, encumbrance or other disposition of,
any of or any interest in any of the shares of Company Common Stock, Company
Convertible Securities or Company Option Securities, or shares of Company
Common Stock issuable upon conversion of any such Company Convertible
Securities or exercise of any such Company Option Securities, set forth
opposite such Securityholder's name on Schedule A. Each Securityholder agrees
that (a) the certificates representing the shares of Company Common Stock and
Company Convertible Securities and Company Option Securities owned by such
Securityholder shall bear a legend indicating that such shares or securities,
as the case may be, are subject to this Agreement, which legend may be removed
upon termination of this Agreement, (b) any attempted or purported transfer of
Company Common Stock, Company Convertible Securities or Company Option
Securities in violation of this Section 5.1 shall be null and void and without
effect, and (c) Company shall not be required to enter in its stock or other
records, or reflect, recognize or give effect to for any purpose, any transfer
of securities of Company in violation of this Agreement.
5.2 Voting Arrangements. Each Securityholder agrees that,
except pursuant to this Agreement, it shall not grant any proxies, deposit any
shares of Company Common Stock into a voting trust or enter into any voting
agreement with respect to any shares of Company Common Stock now owned
beneficially or of record by such Securityholder, other than proxies to vote
such shares at any annual or special meeting of stockholders of Company on
matters unrelated to the matters set forth in Section 7.1 hereof.
5.3 Satisfaction of Conditions to the Merger. Each
Securityholder agrees that, subject to the fiduciary duty of any of its
Representatives (as hereinafter defined) serving as a director of Company, such
Securityholder, in its capacity as such, shall assist and cooperate with the
parties to the Merger Agreement in doing all things necessary, proper or
advisable under Applicable Laws as promptly as practicable to consummate and
make effective the Merger and the other transactions contemplated by the Merger
Agreement. Each Securityholder agrees that it shall not take any action that
would or is reasonably likely to result in any of its representations and
warranties set forth in this Agreement being untrue as of the date made.
5.4 No Solicitation. Each Securityholder agrees that such
Securityholder shall not, nor shall it authorize or permit any of its partners,
officers, affiliates, employees, agents, investment bankers, attorneys,
financial advisors or other representatives (collectively, "Representatives")
to, directly or indirectly, solicit, initiate or encourage (including by way of
furnishing information or assistance) or take other action to facilitate any
inquiries or the making of any proposal that constitutes or may reasonably be
expected to lead to, an Acquisition Proposal from any Person other than Childs,
Acquiror Parent and Acquiror, or engage in any discussions or negotiations
relating thereto or in furtherance thereof or accept or enter into any
agreement with respect to any Acquisition Proposal; provided, however, that,
notwithstanding any other provision of this Agreement, if a Representative of
such Securityholder is a director of Company, such Representative may take any
action in such Person's capacity as a director that the Board of Directors of
Company would be permitted to take in accordance with Section 4.5 and Section
4.8 of the Merger Agreement. Subject to the foregoing, such Securityholder
shall immediately cease and cause to be terminated any existing solicitation,
initiation, encouragement, activity, discussion or negotiation with any parties
conducted heretofore by such Securityholder or any of its Representatives with
respect to any of the foregoing.
5.5 Topping Fee. In the event that any Topping Fee Event
shall occur, Childs shall pay to the Securityholders any Topping Fee due to the
Securityholders in connection with such Topping Fee Event. Payment of such
Topping Fee to the Securityholders shall be due immediately following the
consummation of the related Topping Fee Event and shall be payable in
immediately available funds by wire transfer to accounts designated in writing
by the Securityholders.
5.6 Prepayment of Company Convertible Securities. Each
Securityholder hereby consents and agrees, notwithstanding any term, provision
or condition contained in any Company Convertible Securities to the contrary,
to the prepayment by Company on the Second Disposition Effective Date of all of
the outstanding principal, together with all accrued and unpaid interest
thereon, of the Company Convertible Securities now or hereafter owned
beneficially or of record by such Securityholder, and waives any and all
provisions and requirements under such Company Convertible Securities for the
payment of any prepayment penalty, premium or similar amount in connection with
any such prepayment. Each Securityholder acknowledges and agrees that such
prepayment shall constitute payment in full and satisfaction of each such
Company Convertible Security so prepaid, and agrees to surrender each such
Company Convertible Security to Company on the Second Disposition Effective
Date against such prepayment.
5.6 Cooperation. Each of the parties hereto shall use
reasonable efforts or take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under Applicable
Laws to consummate and make effective the transactions contemplated by this
Agreement, including using its reasonable efforts to obtain all necessary or
appropriate waivers, consents and approvals, to effect all necessary filings
and submissions, including without limitation filings under the HSR Act.
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to Obligations of Securityholders, Childs
and Acquiror. The respective obligations of the Securityholders, Childs and
Acquiror to effect the Second Disposition shall be subject to the satisfaction
or waiver (subject to Applicable Law) of the following conditions on or prior
to the Second Disposition Closing Date:
(a) No Change in Law; No Opposition. No Authority shall have
enacted, issued, promulgated, enforced or entered any law, order, executive
order, stay, decree, judgment, injunction or other order or statute, rule or
regulation which is in effect and which has the effect of making the
acquisition of shares of Company Common Stock by Childs, Acquiror Parent or
Acquiror or any Affiliate of any of them illegal or otherwise preventing or
prohibiting consummation of the transactions contemplated hereby or by the
Merger Agreement.
(b) HSR Act. The filing and waiting period requirements
under the HSR Act relating to the consummation of the Second Disposition shall
have expired or been terminated.
6.2 Conditions to Obligations of Childs and Acquiror. The
obligations of Acquiror and Childs to effect the Second Disposition shall be
further subject to the fulfillment at or prior to the Second Disposition
Effective Date of the following conditions, any one or more of which may be
waived by Acquiror or Childs:
(a) The Securityholders shall be in compliance in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by them as of the Second Disposition Effective
Date, and the representations and warranties of Securityholders set forth in
this Agreement shall be true and correct in all material respects (without
giving effect to any qualifications as to materiality contained in any such
representation) as of the date of this Agreement and as of the Second
Disposition Closing Date as though made at and as of the Second Disposition
Closing Date, and Childs and Acquiror shall have received certificates to that
effect signed by each Securityholder.
(b) Company shall be in compliance in all material respects
with the agreements contained in the Merger Agreement required to be performed
and complied with by it as of the Second Disposition Effective Date, and the
representations and warranties of Company set forth in the Merger Agreement
shall be true and correct in all material respects (without giving effect to
any qualifications as to materiality contained in any such representation) as
of the date of the Merger Agreement and as of the Second Disposition Closing
Date as though made at and as of the Second Disposition Closing Date, and
Childs and Acquiror shall have received certificates to that effect signed by
the Company.
(c) Board Resignation. If requested by Childs, each
Securityholder shall have caused the persons on the Board of Directors of
Company who are designees of such Securityholders to resign from their
positions on the Board of Directors of Company effective as of the Second
Disposition Effective Date.
(d) No Material Adverse Change. There shall not have occurred
any event or change in circumstances involving Company or any of its
Subsidiaries that, individually or when taken together with all other such
events or changes in circumstances, is or is reasonably likely to be materially
adverse to the business, operations, properties, financial condition or results
of operations of Company and its Subsidiaries taken as a whole, or does or is
reasonably likely to delay or prevent the consummation of the transactions
contemplated by this Agreement or the Merger Agreement.
(e) Consents. Company shall have obtained consents to the
assignment and continuation of all Contractual Obligations which, in the
judgment of Childs, require such consents, provided, that this condition shall
be deemed satisfied with respect to landlords' consents and other consents and
approvals relating to the ownership and operation of the Company's and its
Subsidiaries' stores if all such consents and approvals are obtained with
respect to stores whose annual store level cash contribution in the year ended
November 2, 1996 aggregated at least 90% of the consolidated store level cash
contribution of the Company and its Subsidiaries for such year.
(f) Affiliate Transactions. Each of the Contractual
Obligations between (a) the Company or any of its Subsidiaries and (b) the
Securityholders or Xxxxxx Capital Corporation, or their respective Affiliates,
officers, directors, employees, agents, partners, or stockholders shall have
been terminated (except for any agreements relating to the purchase of
inventory from entities controlled by Xxxxxx Capital Corporation).
(g) Financing. The closings of the financings described in
each of the commitment letters, dated November 26, 1996, of Fleet National Bank
and NationsBank, N.A. sufficient to provide funds to consummate the Second
Disposition shall have taken place.
6.3 Conditions to Obligations of the Securityholders. The
obligations of the Securityholders to effect the Second Disposition shall be
further subject to the fulfillment at or prior to the Second Disposition
Effective Date of the following conditions, any one or more of which may be
waived by the Securityholders:
(a) Childs and Acquiror shall be in compliance in all material
respects with the agreements contained in this Agreement required to be
performed and complied with by them as of the Second Disposition Effective
Date, and the representations and warranties of Childs and Acquiror set forth
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Second Disposition Closing Date as though
made at and as of the Second Disposition Closing Date, and the Securityholders
shall have received certificates to that effect signed by Childs, Acquiror
Parent and Acquiror.
(b) Childs, Acquiror Parent and Acquiror shall be in
compliance in all material respects with the agreements contained in the Merger
Agreement required to be performed and complied with by them as of the Second
Disposition Closing Date, and the representations and warranties of Childs,
Acquiror Parent and Acquiror set forth in the Merger Agreement shall be true
and correct in all material respects (without giving effect to any
qualifications as to materiality contained in any such representation) as of
the date of the Merger Agreement and as of the Second Disposition Closing Date
as though made at and as of the Second Disposition Closing Date, and Company
shall have received certificates to that effect signed by Childs, Acquiror
Parent and Acquiror.
ARTICLE VII
PROXY;
WAIVER OF RIGHTS
7.1 Proxy. (a) Each Securityholder hereby agrees that,
during the term of this Agreement, at any meeting of the stockholders of
Company, however called, and at every adjournment thereof, and in any action by
written consent of the stockholders of Company, to (i) vote all of the shares
of Company Common Stock then owned by such Securityholder in favor of the
adoption of the Merger Agreement as in effect on the date hereof (as such
agreement may be amended (A) as contemplated by Section 8.3 of the Merger
Agreement or (B) with the consent of such Securityholder) and each of the other
transactions contemplated thereby and any action required in furtherance
thereof, (ii) vote such shares against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of Company under the Merger Agreement, and
(iii) vote such shares against any Acquisition Proposal or any other action or
agreement that, directly or indirectly, is inconsistent with or that would, or
is reasonably likely to, directly or indirectly, impede, interfere with or
attempt to discourage the Merger or any other transaction contemplated by the
Merger Agreement, including but not limited to (I) any extraordinary corporate
transaction (other than the Merger on the terms set forth in the Merger
Agreement), such as a merger, consolidation, business combination,
reorganization, recapitalization or liquidation involving Company or any of its
Subsidiaries, (II) a sale or transfer of a material amount of assets of Company
or any of its Subsidiaries, (III) any redemption of securities of Company or
any of its Subsidiaries, or (IV) any material change in Company's
capitalization, corporate structure or business; provided, however, that, if a
Representative of such Securityholder is a director of Company, nothing herein
shall be construed to obligate such Representative to act in such
Representative's capacity as a director in any manner which conflicts with such
Person's fiduciary duties as a director of Company.
(b) In furtherance of the foregoing, (i) each Securityholder
hereby appoints Childs and the proper officers of Childs and its general
partners, and each of them, with full power of substitution in the premises,
its proxies to vote all such Securityholder's shares of Company Common Stock
now or hereafter owned beneficially or of record by such Securityholder at any
meeting, general or special, of the stockholders of Company, and to execute one
or more written consents or other instruments from time to time in order to
take such action without the necessity of a meeting of the stockholders of
Company, in accordance with the provisions of the preceding paragraph and
(ii) Childs hereby agrees to vote such shares or execute written consents or
other instruments in accordance with the provisions of the preceding paragraph.
(c) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest and shall revoke all prior proxies granted by such
Securityholder. Such Securityholder shall not grant any proxy to any person
which conflicts with the proxy granted herein, and any attempt to do so shall
be void. The power of attorney granted herein is a durable power of attorney
and shall survive the disability or incompetence of such Securityholder.
7.2 Waiver of Appraisal Rights. Each Securityholder
hereby waives its rights to appraisal under Section 262 of the Delaware General
Corporation Law with respect to any shares of Company Common Stock owned by it
or issuable to it in connection with the transactions contemplated by the
Merger Agreement.
7.3 Waiver of Certain Rights. Each Securityholder hereby
waives and agrees not to assert any claims or rights it may have against any
director of Company in respect of approval or adoption of the Merger Agreement
or the consummation of the Merger or the other transactions contemplated
thereby.
ARTICLE VIII
MISCELLANEOUS
8.1 Termination. This Agreement may be terminated at any
time prior to the Second Disposition Effective Date:
(a) by mutual consent of each of the Securityholders and
Childs and Acquiror;
(b) by the Securityholders or Childs or Acquiror at any time
after (i) January 31, 1997 or (ii) February 28, 1997, if on January 31, 1997,
the Second Disposition shall not have been consummated solely because a decree,
ruling, injunction or order against the consummation of the Second Disposition
pursuant to any antitrust law shall be outstanding or any waiting period
applicable to the Second Disposition under the HSR Act shall not have
terminated or expired, (in the case of either (i) or (ii), other than due to
the failure of the party seeking to terminate this Agreement to perform its
obligations under this Agreement required to be performed at or prior to the
Second Disposition Effective Date);
(c) by Childs or Acquiror, if there has been a material
violation or breach by the Securityholders of any agreement, representation or
warranty contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of Childs and Acquiror impossible and such
violation or breach has not been waived by Childs and Acquiror; or
(d) by the Securityholders, if there has been a material
violation or breach by Childs or Acquiror of any agreement, representation or
warranty contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of the Securityholders impossible and such
violation or breach has not been waived by the Securityholders.
8.2 Amendment. This Agreement may be amended only by a
written instrument executed by the parties or their respective successors or
assigns.
8.3 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, facsimile, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 8.3):
If to Childs or Acquiror, at the addresses and to the Persons
(including the copies) set forth in the Merger Agreement; and
If to any of the Securityholders to:
Xxxxxx Capital Corporation
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
8.4 Counterparts. This Agreement may be executed in one
or more counterparts and each counterpart shall be deemed to be an original,
but all of which shall constitute one and the same original.
8.5 Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware without
reference to choice of law principles, including all matters of construction,
validity and performance.
8.6 Severability; Enforcement. The invalidity of any
portion hereof shall not affect the validity, force or effect of the remaining
portions hereof. If it is ever held that any restriction hereunder is too
broad to permit enforcement of such restriction to its fullest extent, each
party agrees that a court of competent jurisdiction may enforce such
restriction to the maximum extent permitted by law, and each party hereby
consents and agrees that such scope may be judicially modified accordingly in
any proceeding brought to enforce such restriction.
8.7 Further Assurances. Each party hereto shall execute
and deliver such additional documents as may be necessary or desirable to
consummate the transactions contemplated by this Agreement.
8.8 Parties in Interest; Assignment. Neither this
Agreement nor any of the rights, interest or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties.
8.9 Entire Agreement. This Agreement and the Merger
Agreement contain the entire understanding of the parties hereto and thereto
with respect to the subject matter contained herein and therein, and supersede
and cancel all prior agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
There are no restrictions, promises, representations, warranties, agreements or
undertakings of any party hereto or to the Merger Agreement with respect to the
transactions contemplated by this Agreement and the Merger Agreement other than
those set forth herein or therein or made hereunder or thereunder.
8.10 Specific Performance. The parties hereto agree that
the remedy at law for any breach of this Agreement will be inadequate and that
any party by whom this Agreement is enforceable shall be entitled to specific
performance or injunctive relief in addition to any other appropriate relief or
remedy. Such party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunctive relief or such other relief
as such court may deem just and proper in order to enforce this Agreement or
prevent any violation hereof and, to the extent permitted by applicable law,
each party waives any objection to the imposition of such relief or any
requirement for the posting of a bond or other collateral in connection
therewith.
8.11 Headings; References. The section and paragraph
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. All
references herein to "Sections" or "Exhibits" shall be deemed to be references
to Articles or Sections hereof or Exhibits hereto unless otherwise indicated.
8.12 Limited Liability of Partners. Notwithstanding any other
provision of this Agreement, neither the general partner nor the limited
partners, nor any future general or limited partner of any Securityholder,
shall have any personal liability for performance of any obligation of such
Securityholder under this Agreement.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
CHILDS:
X.X. CHILDS EQUITY PARTNERS, L.P.
By: X.X. CHILDS ADVISORS, L.P.,
its general partner
By: X.X. CHILDS ASSOCIATES, L.P.,
its general partner
By: X.X. CHILDS ASSOCIATES, INC.,
its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
ACQUIROR:
JWC ACQUISITION I, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
SECURITYHOLDERS:
MEZZANINE LENDING ASSOCIATES I, L.P.
By: MEZZANINE LENDING MANAGEMENT I, its
General Partner
By: /s/ Costa Littas
Name: Costa Littas
Title: Managing Director
MEZZANINE LENDING ASSOCIATES II, L.P.
By: MEZZANINE LENDING MANAGEMENT II,
its General Partner
By: /s/ Costa Littas
Name: Costa Littas
Title: Managing Director
MEZZANINE LENDING ASSOCIATES III, L.P.
By: MEZZANINE LENDING MANAGEMENT III,
its General Partner
By: /s/ Costa Littas
Name: Costa Littas
Title: Managing Director
SENIOR LENDING ASSOCIATES I, L.P.
By: SENIOR LENDING MANAGEMENT I,
its General Partner
By: /s/ Costa Littas
Name: Costa Littas
Title: Managing Director
BCC INDUSTRIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Central Tractor Farm & Country, Inc., a Delaware corporation
("Company") hereby consents to the foregoing Securities Purchase Agreement.
Company hereby waives any and all transfer restrictions applicable to any and
all Company Common Stock, Company Convertible Securities and Company Option
Securities held by any of the Securityholders in connection with the transfer
thereof to Childs or Acquiror pursuant to the Initial Disposition or the Second
Disposition (as defined in the foregoing Securities Purchase Agreement),
including without limitation the provisions of Sections 10 and 11 of the
Exchange Agreement, dated as of October 14, 1994, by and among Company, the
Securityholders and certain other parties named therein.
CENTRAL TRACTOR FARM & COUNTRY, INC.
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Exec. Vice President - Finance
Number of
Shares of Company Number of Number of
Company Option Initial Second
Name and Address of Common Company Convertible Securities Disposition Disposition
Securityholder Stock Owned Securities Owned Owned Shares Shares
Mezzanine Lending Associates 562,296 $1,225,510 principal 0 86,275 476,021
I, L.P. amount of Company's 7%
c/o Butler Capital Convertible
Corporation Subordinated Notes due
000 Xxxxx Xxxxxx 2002, which are
6th Floor convertible into 63,252
Xxx Xxxx, XX 00000 shares of Company
Common Stock at any
time at a conversion
price of $19.375 per
share
Mezzanine Lending Associates 4,102,746 $8,941,799 principal 0 629,497 3,473,249
II, L.P. amount of Company's 7%
c/o Butler Capital Convertible
Corporation Subordinated Notes due
000 Xxxxx Xxxxxx 2002, which are
6th Floor convertible into
Xxx Xxxx, XX 00000 461,512 shares of
Company Common Stock at
any time at a
conversion price of
$19.375 per share
Mezzanine Lending Associates 1,161,393 $5,832,691 principal 0 178,196 983,197
III, L.P. amount of Company's 7%
c/o Butler Capital Convertible
Corporation Subordinated Notes due
000 Xxxxx Xxxxxx 2002, which are
6th Floor convertible into
Xxx Xxxx, XX 00000 301,042 shares of
Company Common Stock at
any time at a
conversion price of
$19.375 per share
Senior Lending Associates, 1,005,294 0 0 154,246 851,048
L.P.
c/o Butler Capital
Corporation
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
BCC Industrial Services, 0 0 230,523 shares 0 230,523 shares
Inc. issuable at a per issuable at a per
c/o Butler Capital share price of $3.59 share price of
Corporation upon the exercise of a $3.59 upon the
000 Xxxxx Xxxxxx Xxxxxx Stock Purchase exercise of a
0xx Xxxxx Xxxxxxx No. 1 issued Common Stock
Xxx Xxxx, XX 00000 by Company on October Purchase Warrant
5, 1994 No. 1 issued by
Company on
October 5, 1994
