EXHIBIT 10.46
FOURTH AMENDMENT TO THE
AMENDED AND RESTATED STIPULATION OF SETTLEMENT
This Fourth Amendment to the Amended and Restated Stipulation of
Settlement (this "AMENDMENT") is made as of May 24, 2002, by and between the
Xxxxxx Defendants (as defined in the Stipulation of Settlement described below)
and the Estate Parties (as defined in the Stipulation of Settlement described
below).
RECITALS
WHEREAS, the parties hereto have entered into that certain Stipulation
of Settlement, as amended and restated as of October 10, 2001 (the "First
Amendment and Restatement") and further amended as of March 15, 2002 and May 10,
2002 (collectively, the "STIPULATION OF SETTLEMENT"); all capitalized terms used
but not defined herein shall have the meaning set forth for such terms in the
Stipulation of Settlement;
WHEREAS, the Stipulation of Settlement contemplates, among other
things, that, on the Stipulation Effective Date, the Xxxxxx Defendants shall
cause to be delivered to the Estate Representative: (i) the Trust Preferred
Securities and (ii) a number of shares of TCG Common Stock representing 15% of
the issued and outstanding TCG Common Stock (excluding treasury stock) as of
their date of issuance and immediately after giving effect to their issuance
(the "TCG COMMON SHARES" and, together with the Trust Preferred Securities, the
"SETTLEMENT STOCK"); and
WHEREAS, the parties have agreed to amend the Stipulation of Settlement
to allow Xxxxxx Capital Group the opportunity to explore an initial public
offering of securities on the terms described below, in contemplation of a
portion of the proceeds thereof being used to pay a cash amount to the Estate
Representative in lieu of delivery of the Settlement Stock.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. FILING OF REGISTRATION STATEMENT.
(a) On or before May 31, 2002, the Xxxxxx Defendants shall
cause Xxxxxx Capital Group to file with the SEC a registration statement on Form
S-1 (the "S-1"), to register at least the following securities (the "REGISTERED
SECURITIES") in contemplation of an underwritten public offering (the "IPO")
pursuant to a firm commitment from one or more underwriters (the
"UNDERWRITERS"):
(i) the Trust will register in the S-1 no less than
1,380,000 shares of Trust Preferred Securities at a price of $25.00 per
share bearing substantially the same rights, preferences and terms as
the Trust Preferred Securities described in the Stipulation of
Settlement except as described in Section 1(b) below;
(ii) Xxxxxx Capital Group will register in the S-1 no less
than 1,200,000 shares of TCG Common Stock (the "PRIMARY SHARES"), which
will include the TCG Common Shares contemplated by the Stipulation of
Settlement;
(iii) existing stockholders of Xxxxxx Capital Group (the
"SELLING STOCKHOLDERS") will register in the S-1 no less than 200,000
shares of TCG Common Stock;
(iv) the Trust may register in the S-1 up to an additional
number of trust preferred securities equal to 15% of the securities
described in clause (i) above to cover any over-allotment options to be
granted to the Underwriters; and
(v) Xxxxxx Capital Group and/or the Selling Stockholders
will register in the S-1 up to an additional number of shares of TCG
Common Stock equal to 15% of the securities described in clauses (ii)
and (iii) above (the "OVER-ALLOTMENT SHARES").
The number of shares of TCG Common Stock described in this Section 1(a) and the
Base Price described below in Section 2(c) are subject to equitable adjustment
for any stock split, stock dividend, recapitalization or other such transaction
prior to the consummation of the IPO. The parties further agree that the number
of TCG Common Shares required by Section IV.5.3(A) of the Stipulation of
Settlement shall be determined without regard to any additional Primary Shares
or Over-Allotment Shares offered by Xxxxxx Capital Group. Accordingly, it is
assumed for purposes of this Amendment that 5,358,218 shares of TCG Common Stock
shall be issued and outstanding on a pro forma basis at the closing of the IPO
(determined by adding (i) the 4,554,486 issued and outstanding shares of TCG
Common Stock on the date hereof and (ii) the 803,732 TCG Issued Shares to be
issued in satisfaction of Section IV.5.3(A) of the Stipulation of Settlement).
Said 803,732 TCG Issued Shares are hereinafter referred to as the "SETTLEMENT
COMMON SHARES".
(b) In connection only with the contemplated sale of Trust
Preferred Securities in the IPO, Xxxxxx Capital Group may, in its sole
discretion, lower the coupon rate on the Debentures and the Trust Preferred
Securities to such rate as shall permit the Trust Preferred Securities offered
to be priced at $25.00 per share, provided that, as a condition to any such
adjustment to the coupon rate on the Debentures and the Trust Preferred
Securities (a "RATE ADJUSTMENT"), Xxxxxx Capital Group shall agree to not
exercise its right to redeem the Debentures at any time prior to the fifth
anniversary of the completion of the IPO unless:
(i) there is a change in existing laws or regulations, or
new official administrative or judicial interpretation or application
of these laws and regulations, that causes the interest that Xxxxxx
Capital Group pays on the Debentures to no longer be deductible by
Xxxxxx Capital Group for federal tax purposes; or the Trust becomes
subject to federal income tax; or the Trust becomes or will become
subject to other taxes or governmental charges,
(ii) there is a change in existing laws or regulations
that requires the Trust to register as an investment company under the
Investment Company Act of 1940, or
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(iii) there is a change in the capital adequacy guidelines
of the Federal Reserve that results in the Trust Preferred Securities
not being counted as Tier 1 capital.
(c) Xxxxxx Capital Group shall have the sole and exclusive
right to select the Underwriters. It is currently anticipated that Xxxxx,
Xxxxxxxx & Xxxxx, Inc. will be the lead managing underwriter. If at any time
prior to consummation of the IPO, Xxxxxx Capital Group elects to change the lead
managing underwriter, Xxxxxx Capital Group will promptly advise the Estate
Representative of such election and will apprise the Estate Representative of
the nationally recognized investment banks that it is considering as a
replacement.
2. SATISFACTION OF CERTAIN CONDITIONS PRECEDENT TO EFFECTIVENESS
OF AGREEMENTS.
(a) For purposes of Section IV.6.1(A)(2) of the Stipulation of
Settlement only, the Class Settlement Effective Date shall be deemed to have
occurred following closing of the IPO and at the precise moment that the
Settlement Proceeds contemplated by Section 2(c) hereof shall have been
deposited in a bank account designated by the Estate Representative.
(b) Upon the closing of the IPO, the conditions precedent to
the Stipulation Effective Date set forth in Section IV.6.1(B) and (D) of the
Stipulation of Settlement shall be deemed waived by the Estate Representative,
and the conditions set forth in Sections IV.4.1 through IV.4.3 of the
Stipulation of Settlement shall be deemed satisfied by Xxxxxx Capital Group,
each without any further action by any party.
(c) The Stipulation Effective Date shall be deemed to have
occurred when (I) all conditions precedent to effectiveness of the Stipulation
of Settlement contained in Section IV.6.1 thereof shall have been satisfied or
deemed to have been satisfied, (II) the IPO shall have closed, and (III) all
Settlement Proceeds (as hereinafter defined) shall have been delivered by wire
transfer to a bank account designated by the Estate Representative. For purposes
of this Amendment, "Settlement Proceeds" shall mean the following sums delivered
to the Estate Representative in full satisfaction of the obligations of the
Xxxxxx Defendants and Xxxxxx Capital Group pursuant to Sections IV.5.1, IV.5.2
and IV.5.3 of the Stipulation of Settlement: (i) $65,000,000, plus (ii) the
amount, if any, by which the offering price per share of TCG Common Stock to the
public in the IPO exceeds $25.00 (the "BASE PRICE") multiplied by the number of
Settlement Common Shares, minus (iii) the sum of $3,100,000 plus 7% of the
amount, if any, obtained in subclause (ii) hereof, all as reimbursement to
Xxxxxx Capital Group of a portion of the registration expenses, including
underwriting commissions, on the sale of the Trust Preferred Securities and the
Settlement Common Shares.
(d) On the first business day following the closing of the IPO
and satisfaction (or deemed satisfaction) of all other conditions precedent to
effectiveness set forth in Section IV.6.1 of the Stipulation of Settlement,
Xxxxxx Capital Group shall cause the Settlement Proceeds to be delivered to the
Estate Representative in the manner contemplated herein; provided, however, that
if all of the conditions precedent to effectiveness of the Stipulation of
Settlement shall have been satisfied as of the closing date of the IPO, Xxxxxx
Capital Group shall take commercially reasonable steps to direct the
Underwriters to cause the Settlement Proceeds to be delivered directly by them
to a bank account designated by the Estate Representative (it being understood,
however, that any payment of the Settlement Proceeds to said bank account from
any source shall satisfy Xxxxxx Capital Group's payment obligations hereunder).
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3. EFFECT OF FAILURE TO CLOSE THE IPO BY SEPTEMBER 30, 2002. If
Xxxxxx Capital Group has not completed the sale of the Registered Securities
pursuant to the IPO on or before September 30, 2002, Xxxxxx Capital Group may
withdraw the S-1, at which time the terms and conditions of the First Amendment
and Restatement, as modified by Paragraphs 3 through 5 hereof, shall become
fully operative without regard to the provisions of Paragraph 2 hereof. On the
Stipulation Effective Date, as defined in Section IV.1.56 of the Stipulation of
Settlement, the Estate Representative shall reimburse $500,000 to Xxxxxx Capital
Group with respect to a portion of the registration expenses, which amount may
be offset by Xxxxxx Capital Group against the cash payment otherwise payable on
the Stipulation Effective Date pursuant to Section IV.5.1 of the Stipulation of
Settlement.
4. EXTENSION OF TERMINATION DATE. Pursuant to the Stipulation of
Settlement, the Estate Representative or the Xxxxxx Defendants have the right to
terminate the Stipulation of Settlement if certain conditions have not been
satisfied or waived on or before May 31, 2002 (the "TERMINATION DATE"). In
consideration of the terms and conditions set forth in this Amendment, the
parties hereto agree that the Termination Date shall be December 31, 2002.
5. MISCELLANEOUS.
(a) Remedies. Each of the parties to this Amendment will be
entitled to enforce its rights under this Amendment specifically, to recover
damages by reason of any breach of any provision of this Amendment and to
exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Amendment and that any party hereto shall be entitled to
immediate injunctive relief or specific performance without bond or the
necessity of showing actual monetary damages in order to enforce or prevent any
violations of the provisions of this Amendment.
(b) Final Agreement. This Amendment, together with the
Stipulation of Settlement and all other agreements entered into by the parties
hereto pursuant to the Stipulation of Settlement, constitutes the complete and
final agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings in respect of the matters
expressly set forth herein; provided, however, that except as amended herein,
the terms and covenants of the Stipulation of Settlement remain in full force
and effect.
(c) Counterparts. This Amendment may be executed in one or
more counterparts. All executed counterparts and each of them shall be deemed to
be one and the same instrument. Counsel for the parties shall exchange among
themselves signed counterparts of this Amendment. Signatures delivered by
facsimile transmission shall be effective upon receipt and have the same weight
and effect as an executed original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized counsel on the date first set forth above.
[EXECUTION PAGES TO FOLLOW]
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COUNSEL FOR THE ESTATE REPRESENTATIVE
XXXXXX X. XXXXXXX & ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Estate Representative's Lead Counsel and
Chairman of Estate Representative's
Executive Committee
COUNSEL FOR THE XXXXXX DEFENDANTS
XXXXXXXXX, WILL & XXXXX
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
XXXXXXXXX, WILL & XXXXX
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Counsel for the Xxxxxx Defendants
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