EXHIBIT 10.9
WARRANT REPURCHASE AGREEMENT
THIS REPURCHASE AGREEMENT is made as of this 26th day of September,
2001, by and between Integrity Incorporated, a Delaware corporation (the
"Company"), and Bank Austria AG, Grand Cayman Branch ("Seller"), the owner of
warrants to purchase 818,897 shares of the Company's Class A common stock, par
value $.01 per share (the "Common Stock").
WITNESSETH:
WHEREAS, Seller owns warrants to purchase an aggregate of 818,897
shares of the Company's Common Stock (the "Warrants") for a price of $1.875 per
share; and
WHEREAS, Seller desires to sell, and the Company desires to repurchase,
the Warrants for $6.00 per Warrant (minus the exercise price of $1.875 per
Warrant) pursuant to the terms of this Agreement; and
WHEREAS, it is the intention of the parties hereto that, upon
consummation of the purchase and sale of the Warrants pursuant to this
Agreement, neither Seller nor its affiliates shall own any warrants or other
rights to purchase any equity interest in the Company;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:
ARTICLE 1
SALE OF SECURITIES
1.1 PURCHASE AND SALE OF WARRANTS. Subject to the terms and
conditions stated herein, Seller agrees, effective as of the date of this
Agreement, to sell, assign, transfer and deliver the Warrants to the Company,
and the Company agrees to purchase the Warrants from Seller in exchange for the
purchase price set forth in Section 1.2 herein. The Warrant Certificate(s)
representing the Warrants shall be duly endorsed in blank, or accompanied by
assignment forms or stock powers duly executed in blank, by Seller, with all
necessary transfer tax and other revenue stamps, acquired at Seller's expense,
affixed and canceled. Seller agrees to cure at any time after Closing, without
further consideration, any deficiencies with respect to the endorsement of the
Warrant Certificate(s) or with respect to the assignment forms or stock powers
accompanying the Warrant Certificate(s).
1.2 PRICE. In full consideration for the repurchase by the
Company of the Warrants to purchase 818,897 shares of Common Stock, the Company
shall pay to Seller a purchase price of $6.00 per Warrant (minus the exercise
price of $1.875 per Warrant) or an aggregate purchase price of Three Million
Three Hundred and Seventy-Seven Thousand Nine Hundred Fifty and 13/100ths
Dollars ($3,377,950.13), which the Company will deliver to Seller at the time of
Seller's delivery to the Company of the duly endorsed Warrant Certificate(s)
representing all of the Warrants, by wire transfer according to the following
instructions:
Bayerische Hypo-Und Vereinsbank
ABA # 026 008 808
Account No.: 594-012033-4055-01
A/C: Loan Servicing Department
Contact: Xxxxxxxx Xxxxxxxxxxx
(000) 000-0000
Reference: Integrity Warrant Sale.
1.3 CLOSING OF PURCHASE AND SALE. Subject to the terms and
conditions hereof, the closing of the repurchase and sale provided for herein
(the "Closing") shall take place at 9:00 A.M. Eastern Standard Time on or before
September 26, 2001 by facsimile transmission and in the office of Xxxxxx & Bird
LLP, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
(the "Closing Date").
ARTICLE 2
REPRESENTATIONS OF SELLER
Seller represents and warrants to the Company the following:
2.1 EXISTENCE AND GOOD STANDING. Seller is the Grand Cayman
Branch of an Austrian banking corporation. Seller has corporate power and
corporate authority to make, execute, deliver and perform its obligations under
this Agreement, and this Agreement has been duly authorized and approved by all
required corporate action of Seller.
2.2 RESTRICTIVE DOCUMENTS. Seller is not subject to any charter,
by-law, mortgage, lien, lease, agreement, instrument, order, law, rule,
regulation, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
this Agreement.
2.3 TITLE TO SECURITIES. Seller owns beneficially and of record
and has full power and authority to convey free and clear of all liens,
encumbrances, restrictions and claims of every kind, the Warrants and, upon
delivery of and payment for such Warrants as herein provided, the Company will
acquire good and valid title thereto, free and clear of all liens, encumbrances,
restrictions and claims of every kind. There is no outstanding subscription,
warrant, call, unsatisfied preemptive right, commitment, option or other
agreement or right of any kind to purchase or otherwise to receive from Seller
any of the Warrants.
2.4 BINDING EFFECT OF AGREEMENT. This Agreement has been duly
executed and delivered by Seller and is a valid and binding agreement of Seller,
in accordance with its terms.
2.5 ACCESS TO BOOKS AND RECORDS; DISCLOSURE. Seller acknowledges
that
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(a) Seller has been given full and adequate access to, and the
opportunity to inspect and review, the financial statements of the Company and
all such other books and records of the Company relating to the business,
finances and operations of the Company as Seller has deemed necessary in
connection with Seller's evaluation of the Company's offer to purchase the
Warrants and of the business, financial condition and prospects of the Company.
(b) Except as otherwise noted, Seller has such knowledge and
experience in financial and business matters (particularly including Seller's
knowledge and experience with the Company's business and with the industry in
which the Company operates) as to be capable of evaluating the merits and risks
of selling the Warrants to the Company at the price and terms set forth in
Article I hereof.
2.6 HOLDINGS OF CAPITAL STOCK. Except as specifically
contemplated by this Agreement, no person or entity has any written or oral
contract, agreement, option or commitment or any right (whether preemptive or
contractual) for the purchase of any Warrant or any portion thereof.
2.7 STATEMENTS TRUE AND CORRECT. No representation or warranty
made by Seller to the Company pursuant to this Agreement contains or will
contain any untrue statement of material fact or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
ARTICLE 3
REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to Seller the following:
3.1 EXISTENCE AND GOOD STANDING. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has corporate power and corporate authority to
make, execute, deliver and perform its obligations under this Agreement, and
this Agreement has been duly authorized and approved by all required corporate
action of the Company.
3.2 RESTRICTIVE DOCUMENTS. The Company is not subject to any
charter, by-law, mortgage, lien, lease, agreement, instrument, order, law, rule,
regulation, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
this Agreement.
3.3 BINDING EFFECT OF AGREEMENT. This Agreement has been duly
executed and delivered by the Company and is a valid and binding agreement of
the Company, in accordance with its terms. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated thereby
will (i) result in the creation or imposition of any security interest, lien,
charge or other encumbrance upon the Warrants under any agreement or commitment
to which the Company is bound (ii) result in the breach or default under or
require the consent or approval of any party to any material written or oral
agreement, contract or commitment of the Company or (iii) result in the
violation of any law, regulation, decree, judgment, order or award.
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3.4 CONSENTS. No consent, approval or authorization of, prior
filing, registration, declaration with or notice to, or other action by, any
governmental authority or any other third party is required to be obtained by
the Company in connection with the authorization, execution, delivery and
performance by the Company of this Agreement or the consummation of the
transactions contemplated herein.
3.5 STATEMENTS TRUE AND CORRECT. No representation or warranty
made by the Company to Seller pursuant to this Agreement contains any untrue
statement of material fact or omits to state a material fact necessary to make
the statements contained therein not misleading.
ARTICLE 4
ACTIONS TO BE TAKEN AT THE CLOSING
The following actions shall be taken at the Closing, each of which
shall be conditioned on completion of all the others and all of which shall be
deemed to have taken place simultaneously:
4.1 PURCHASE PRICE PAID. The Company shall deliver to Seller the
purchase price payable at Closing in an amount not less than that set forth in
Section 1.2 of this Agreement.
4.2 DELIVERY OF WARRANT CERTIFICATE(S). Seller shall deliver to
the Company the duly endorsed Warrant Certificate(s) representing all of the
Warrants to purchase 818,897 shares of the Common Stock.
ARTICLE 5
MISCELLANEOUS
5.1 PUBLICITY. Except as otherwise required by law, none of the
parties hereto shall issue any press release or make any other public statement,
in each case relating to or in connection with or arising out of this Agreement
or the matters contained herein, without obtaining the prior approval of the
other party hereto as to the contents and manner of presentation and publication
thereof.
5.2 EXPENSES. Except as otherwise specifically provided herein,
the Company and Seller shall pay their own respective expenses, including the
fees and disbursements of their respective counsel in connection with the
negotiation, preparation and execution of this Agreement and the consummation of
the transactions contemplated hereby.
5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of Seller and the Company contained in this
Agreement shall survive the execution of this Agreement.
5.4 BROKERAGE COMMISSIONS AND FINDER'S FEES. Except for any
agreement between the Company and X.X. Xxxxxxx, each of the parties represents
and warrants to the others that it has not
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hired, retained or dealt with any broker or finder in connection with the
transactions contemplated by this Agreement, and will defend, indemnify and hold
the other parties harmless from and against any and all claims for finder's fees
or brokerage or other commissions which may at any time be asserted against any
of such other parties founded upon a claim which is inconsistent with the
aforesaid representation and warranty of the indemnifying party, together with
any and all losses, damages, costs and expenses (including reasonable attorneys'
fees) relating to such claims or arising therefrom or incurred by the
indemnified party in connection with the enforcement of this indemnification
provision. The Company will defend, indemnify and hold Seller harmless from and
against any and all claims for finder's fees or brokerage or other commissions
which may at any time be asserted against Seller by X.X. Xxxxxxx arising out of
the agreement between the Company and X.X. Xxxxxxx, together with any and all
losses, damages, costs and expenses (including reasonable attorneys' fees)
relating to such claims or arising therefrom or incurred by the indemnified
party in connection with the enforcement of this indemnification provision.
5.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and may not
be modified, amended or terminated except by a written instrument specifically
referring to this Agreement signed by each of the parties hereto.
5.6 WAIVERS AND CONSENTS. All waivers and consents given
hereunder shall be in writing. No waiver by any party hereto of any breach or
anticipated breach of any provision hereof by any other party shall be deemed a
waiver of any other contemporaneous, preceding or succeeding breach or
anticipated breach, whether or not similar, on the part of the same or any other
party.
5.7 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given only if and when (i)
personally delivered or (ii) upon receipt after mailing, postage prepaid, by
certified mail or (iii) when delivered (and receipted for) by an overnight
delivery service, addressed in each case as follows:
(A) If to Seller to:
c/o HypoVereinsbank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
with a copy in like manner to:
Xxxxxxxx Xxxxxxx LLP
Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
(B) If to the Company to:
Integrity Incorporated
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0000 Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: P. Xxxxxxx Xxxxxxx
with a copy in like manner to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
Seller and the Company, may change the address(es) for the giving of notices and
communications to it, and/or copies thereof, by written notice to the other
parties in conformity with the foregoing.
6.9 FURTHER ASSURANCES. Each party covenants that at any time,
and from time to time, after the Closing Date, it will execute such additional
instruments and take such actions as may be reasonably requested by the other
party to confirm or perfect or otherwise to carry out the intent and purposes of
this Agreement.
6.10 RIGHTS OF THIRD PARTIES. All conditions of the obligations
of the parties hereto, and all undertakings herein, are solely and exclusively
for the benefit of the parties hereto and their successors and assigns, and no
other person or entity shall have standing to require satisfaction of such
conditions or to enforce such undertakings in accordance with their terms, or be
entitled to assume that any party hereto will refuse to consummate the purchase
and sale contemplated hereby in the absence of strict compliance with any or all
thereof, and no other person or entity shall, under any circumstances, be deemed
a beneficiary of such conditions or undertakings, any or all of which may be
freely waived in whole or in part, by mutual consent of the parties hereto at
any time, if in their sole discretion they deem it desirable to do so.
6.11 HEADINGS. The Article and Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
6.12 GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the internal
laws of the State of New York.
6.13 PARTIES IN INTEREST. This Agreement may not be transferred,
assigned, pledged or hypothecated by either party hereto, other than by
operation of law or with the consent of the other party. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted assigns.
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6.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
6.15 AMENDMENTS. This Agreement may not be changed orally, but
only by an agreement in writing signed by the Company and Seller.
6.16 SEVERABILITY. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, all as of the day and year first above written.
"COMPANY"
INTEGRITY INCORPORATED
By: /s/ P. Xxxxxxx Xxxxxxx
---------------------------------
Name: P. Xxxxxxx Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
"SELLER"
BANK AUSTRIA AG, GRAND CAYMAN BRANCH
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Exec V.P.
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