Exhibit 4.15
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of June 21, 2002 (this
"Agreement"), by and among ZS XX XX L.P. ("Seller"), and Xxx Xxxxxxxx Holdings
Inc., a Delaware corporation, formerly named "Xxx Xxxxxxxx Corporation" (in its
capacity as issuer of the Shares (defined below), the "Company" and, in its
capacity as the purchaser of the Shares from Seller, "Purchaser") and, solely
for purposes of Section 5.01 hereof, DLJ Merchant Banking Partners II, L.P.
(including on behalf of certain of its "affiliates" (as such term is defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that are Stockholders of the Company ("DLJMB").
WHEREAS, Seller owns, beneficially and of record, an aggregate of
5,000,000 shares of common stock, par value $0.01 per share (the "Shares"), of
the Company; and
WHEREAS, Seller wishes to sell and transfer to Purchaser, and
Purchaser wishes to purchase and receive from Seller, Seller's Shares for the
consideration and upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement and other valuable consideration, the receipt of
which hereby is acknowledged, Purchaser and Seller hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.01. SALE OF SHARES. Upon the terms and subject to the
satisfaction or waiver by the proper waiving party of the conditions set forth
herein, at the Closing (as hereinafter defined), Seller shall sell to Purchaser,
and Purchaser shall purchase from Seller, Seller's Shares, free and clear of all
liens, personal or otherwise, pledges and encumbrances consented to or created
by Seller of every kind, character, and description whatsoever other than the
transfer restrictions set forth in that certain Shareholders' Agreement, dated
as of May 22, 1997 (as amended from time to time, the "Shareholders'
Agreement"), among the Company, Seller, DLJMB, Xxxxxx X. Xxxxxxxx, the
Management Shareholders listed on Annex A thereto, and certain other
stockholders of the Company party thereto.
Section 1.02. CLOSING. Upon the terms and subject to the conditions
of this Agreement, the sale and purchase of the Shares contemplated by this
Agreement shall be consummated at a closing to be held at the offices of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 a.m., New
York City time, on the 21st day of June 2002, or at such other place, time and
date as the parties hereto shall mutually agree upon. The date and event of the
sale and purchase are, respectively, hereinafter referred to as the "Closing
Date" and the "Closing".
Section 1.03. PURCHASE PRICE. The aggregate purchase price to be
paid by Purchaser to Seller (the "Purchase Price") for the Shares being
purchased hereunder shall be $5,000,000 (I.E., $1.00 per Share).
Section 1.04. CLOSING DELIVERIES BY SELLER. At the Closing, Seller
shall deliver or cause to be delivered to the Purchaser upon receipt of the
Purchase Price:
(a) stock certificates evidencing the Seller's shares duly endorsed in
blank, or accompanied by stock powers duly executed in blank, in form
reasonably satisfactory to Purchaser and with all required stock transfer
tax stamps, if any, affixed; and
(b) a receipt for an amount equal to the Purchase Price.
Section 1.05. CLOSING DELIVERIES BY PURCHASER. At or prior to the
Closing, Purchaser shall deliver to the Seller an amount equal to the Purchase
Price by wire transfer in immediately available funds or by certified or
cashier's check payable to Seller.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Purchaser as follows:
(a) This Agreement has been duly executed and delivered by Seller.
(b) Assuming due execution and delivery of this Agreement by
Purchaser, this Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against it in accordance with its terms.
(c) Seller has the full legal capacity and authority to execute and
deliver this Agreement and perform its obligations hereunder.
(d) No consent, approval, authorization or filing with any persons or
entities on Seller's part is required in connection with Seller's execution
or delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for such consents as have been obtained or
would not have a material adverse effect on Seller's obligations hereunder
or any such consent, approval, authorization or filing under the
Shareholders' Agreement or from the Company or its affiliates as to which
Seller makes no representation.
(e) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with
or result in any breach of any provision of the limited partnership
agreement of Seller or any other organizational document of Seller or any
general partner of Seller or (ii) result in a violation or breach of, or
constitute a default under, any
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material agreement (other than the Shareholders Agreement as to which
Seller makes no representation) to which Seller is a party.
(f) Immediately prior to the transactions contemplated hereby, the
Seller had good and valid title to the Shares, the Shares were owned by
Seller at such time free and clear of any and all liens, pledges, charges,
agreements, options, security interests or other encumbrances or claims of
any kind whatsoever consented to or created by Seller other than the
transfer restrictions set forth in the Shareholders' Agreement.
(g) The Shares being sold by Seller hereunder constitute all of the
shares of common stock of the Company owned by Seller or any of its
affiliates.
(h) Seller is an "accredited investor" (as that term is defined in
Rule 501 of Regulation D under the Securities Act of 1933, as amended) and
by reason of its business and financial experience, it has such knowledge,
sophistication and experience in business and financial matters as to be
capable of evaluating the merits and risks of, and protecting its own
interests in connection with, the proposed sale of its Shares hereunder.
Seller is fully satisfied with the Purchase Price and the Purchase Price is
all that Seller is or will be entitled to receive for the Shares.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
severally represents and warrants to Seller as follows:
(a) Purchaser has all the requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite action of the part of Purchaser.
(c) Assuming due execution and delivery of this Agreement by Seller,
this Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
(d) No consent, approval, authorization or filing with any persons or
entities on the part of Purchaser was or is required in connection with the
execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(e) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict with
or result in any breach of any provision of the Certificate of
Incorporation or By-laws of Purchaser or (ii) result in a violation or
breach of, or constitute a default under, any material agreement to which
Purchaser is a party.
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(f) None of DLJMB, the Company or any of its subsidiaries has received
in the last 60 days a bona fide written offer or, to DLJMB's, the Company's
or any of its subsidiaries' knowledge, any other offer, that would result
in (i) a "Change in Control" (as such term is defined in the indenture
governing the Company's 10-1/4% Senior Notes due 2009) pursuant to which
the stockholders of the Company would receive in excess of $1.00 per share
for their shares of common stock of the Company, or (ii) the receipt by the
Company or any other party for any of the Company's common stock in excess
of $1.00 per share.
Section 2.03. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in this Article II shall survive the
Closing Date and shall not be affected by any investigation, verification or
approval by any party hereto or by anyone on behalf of any such parties.
ARTICLE III
CONDITIONS
Section 3.01. CONDITIONS TO OBLIGATIONS OF PURCHASER. The
obligations of Purchaser under this Agreement are, at the option of Purchaser,
subject to the condition that, at or prior to the Closing Date:
(a) This Agreement shall have been signed by Seller obligating and
committing it to sell to Purchaser the Shares to be sold to Purchaser
hereunder, and Seller shall, at the Closing, deliver to Purchaser all of
the Shares to be sold by it and Seller shall in addition fully comply with
the terms and provisions hereof.
(b) An amendment to the Shareholders' Agreement, which, among other
things, deletes Article II from the Shareholders' Agreement, shall have
been signed by Seller, DLJMB and the requisite Management Shareholders (as
defined in the Shareholders Agreement), and such Amendment shall be
effective at or before the Closing Date.
(c) All of the terms, covenants and conditions of this Agreement to be
complied with or performed by Seller at or before the Closing Date shall
have been duly complied with or performed.
(d) The representations and warranties of Seller set forth in Section
2.01 hereof shall be true in all material respects on and as of the Closing
Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date. The provisions of
this paragraph (d) shall be self-executing, and Seller, by having closed
the sale of its stock hereunder, shall be deemed conclusively to have
certified at Closing that all such representations and warranties were true
in all material respects on and as of the Closing Date
(e) The Company shall have received the written resignation of Xxxxxx
Xxxxx as a director of the Company, effective as of or prior to the
Closing.
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Section 3.02. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations
of Seller under this Agreement to Purchaser are, at the option of Seller,
subject to the condition that, at or before the Closing Date:
(a) All the terms, conditions and covenants of this Agreement to be
complied with and performed by Purchaser at or before the Closing Date
shall have been duly complied with and performed, including the payment of
the consideration to be paid by Purchaser as contemplated by Section 1.04
hereof
(b) Purchaser shall have delivered to Seller on or prior to the
Closing Date an executed copy of this Agreement.
(c) The representations and warranties of Purchaser set forth in
Section 2.02 hereof shall be true in all material respects on and as of the
Closing Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date. The provisions of
this paragraph (c) shall be self-executing, and Purchaser, by having closed
the sale of stock hereunder, shall be deemed conclusively to have certified
at Closing that all such representations and warranties are true in all
material respects on and as of the Closing Date.
(d) The Company shall have accepted the resignation of Xxxxxx Xxxxx as
a director of the Company and released Xx. Xxxxx from any and all claims in
connection with Xx. Xxxxx serving as a director of the Company, which
release shall be contained in Xx. Xxxxx'x resignation letter referred to in
Section 3.01(e) above.
ARTICLE IV
EXPENSES
Section 4.01. EXPENSES. Seller shall pay its own expenses and costs,
including, without limitation, all counsel fees and transfer taxes, and
Purchaser shall pay its own expenses and costs in connection with this Agreement
and the transactions contemplated hereby.
ARTICLE V
MISCELLANEOUS
Section 5.01. SHAREHOLDERS' AGREEMENT; MUTUAL RELEASES.
(a) Immediately upon the consummation of the transactions contemplated
hereby on the Closing Date, Seller will no longer have any rights under, shall
no longer be required to observe any of the obligations under, and shall no
longer be deemed in any respect to be a party to, the Shareholders' Agreement.
(b) Each of Seller and ZS VH L.P. ("ZSI") for itself and its
respective affiliates, heirs, successors and assigns, hereby irrevocably and
unconditionally releases,
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acquits, exonerates and forever discharges each of the Company and DLJMB, and
each of their respective members, officers, directors, managers, employees,
affiliates, shareholders, partners, agents, representatives, or any of them,
from any and all claims, liabilities, causes of action, demands, controversies,
suits, damages, expenses, sums of money and/or judgments of any kind or nature,
both legal and equitable, whether known or unknown, suspected or unsuspected, or
accrued or unaccrued, which are in any way connected with or in respect of, or
which may have arisen or may hereafter arise between the parties under, (i) the
Agreement and Plan of Merger, dated as of May 22, 1997 (the "Merger Agreement"),
by and among VH Acquisition Corp., the Company, DLJMB, and certain shareholders
party thereto, including Seller, and the ancillary documents delivered in
connection therewith, including, without limitation, any indemnification
obligations thereunder, (ii) the Shareholders' Agreement, including, without
limitation, any indemnification obligations thereunder, or (iii) this Agreement
(including, without limitation, in connection with sale and purchase of the
Shares hereunder), except, as contemplated by Section 2.03 hereof, with respect
to the representations and warranties contained in Section 2.02 hereof.
(c) Each of the Company, in its own capacity and as Purchaser, and
DLJMB for itself and its respective affiliates, heirs, successors and assigns,
hereby irrevocably and unconditionally releases, acquits, exonerates and forever
discharges each of the Seller and ZSI, and each of their respective members,
officers, directors, managers, employees, affiliates, shareholders, partners,
agents, representatives, or any of them, from any and all claims, liabilities,
causes of action, demands, controversies, suits, damages, expenses, sums of
money and/or judgments of any kind or nature, both legal and equitable, whether
known or unknown, suspected or unsuspected, or accrued or unaccrued, which are
in any way connected with or in respect of, or which may have arisen or may
hereafter arise between the parties under, (i) the Merger Agreement and the
ancillary documents delivered in connection therewith, including, without
limitation, any indemnification obligations thereunder, (ii) the Shareholders'
Agreement, including, without limitation, any indemnification obligations
thereunder, or (iii) this Agreement (including, without limitation, in
connection with sale and purchase of the Shares hereunder), except (i) with
respect to the representations by the Seller in Section 1.01 that the Shares are
being delivered free and clear of liens, ETC., or (ii) as contemplated by
Section 2.03 hereof, with respect to the representations and warranties of the
Seller set forth in Section 2.01 hereof.
Section 5.02. SUCCESSORS AND ASSIGNS. All of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
Section 5.03. ENTIRE AGREEMENT. This Agreement constitutes the
complete understanding and agreement among the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought.
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Section 5.04. APPROVALS AND CONSENTS. Seller hereby agrees, for
itself, its heirs and legal representative(s), at any time and from time to time
after the Closing Date, upon request of the Company, as Purchaser, to execute
and deliver such further instruments and documents, to take such other actions
as may be reasonably required to more effectively carry out the intent and
purposes of this Agreement and the transactions contemplated hereby.
Section 5.05. D&O INSURANCE. Until such time a Change of Control (as
defined under Section 2.02(f) above) occurs, the Company shall maintain in
effect, if and to the extent available, directors' and officers' liability
insurance covering Xxxxxx Xxxxx with respect to acts while serving as a director
of the Company or any of its subsidiaries prior to the Closing on terms that are
not materially less favorable to the terms now applicable to past and present
directors of the Company under the Company's current policies.
Section 5.06. NOTICES. All notices, requests, demands and other
communications which are required or may be given hereunder shall be in writing
and shall be deemed to have been duly given to a party if delivered personally
or mailed by certified or registered mail, return receipt requested, postage
prepaid, or if given by telex or other telegraphic means, to such party at his
or its address set forth in Schedule A. Any such notice shall for all purposes
of this Agreement be deemed to have been given, and received by the addressee,
on the date of such personal delivery or telex or telegraphic notice or five (5)
days after any such mailing thereof.
Section 5.07. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 5.08. SEVERABILITY. If any provision of this Agreement or
the application of any such provision to any person or circumstances shall be
held invalid by a court of competent jurisdiction, the remainder of this
Agreement, including the remainder of the provision held invalid, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
Section 5.09. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
Section 5.10. HEADINGS. All section headings herein are for
convenience of reference only and are not part of this Agreement, and no
construction or inference shall be derived therefrom.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above by their respective officers thereunto duly
authorized.
SELLER:
ZS XX XX L.P.
By: ZS XX XX L.L.C., General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
PURCHASER:
XXX XXXXXXXX HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Manager
Agreed and Acknowledged for purposes of
Sections 2.02(e), 5.01(b) and 5.01(c)
hereof only:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
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Agreed and Acknowledged for purposes of
Sections 5.01(b) and 5.01(c) hereof only:
ZS VH L.P.
By: ZS Partners,
General Partner
By: /s/ Xxx X. Xxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxx
Title: Manager
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SCHEDULE A
ADDRESS OF SELLER:
ZS XX XX L.P.
000 X. 00xx Xx.
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
ADDRESS OF THE COMPANY, AS PURCHASER:
Xxx Xxxxxxxx Holdings Inc.
0000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: Chief Financial Officer
ADDRESS OF DLJMB:
DLJ Merchant Banking Partners II, L.P.
c/o Credit Suisse First Boston Private Equity
00 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx
Xxxxx X. Xxxxxxxxxxx
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