McJUNKIN CONTRIBUTION AGREEMENT
Exhibit 2.1.1
Execution Version
XxXXXXXX CONTRIBUTION AGREEMENT
CONTRIBUTION
AGREEMENT, dated as of December 4, 2006 (the “Agreement”), among
XxXxxxxx Corporation, a West Virginia corporation (the “Company”), McJ Holding LLC, a
Delaware limited liability company (“Holdco”), the shareholders of the
Company named in Exhibit A hereto and any other shareholders of the Company who
becomes a party to this Agreement by executing and delivering a Letter of Transmittal (defined
below) to the Company prior to the Effective Time (as defined in the Merger Agreement)
(collectively, the
“Contributing Shareholders”).
RECITALS
WHEREAS, simultaneously with the execution and delivery of this Agreement, each Contributing
Shareholder is executing and delivering a limited liability company operating agreement (the
“Holdco LLC Agreement”) and a registration rights agreement (the “Registration Rights
Agreement”) relating to membership interests in Holdco to be received pursuant to this
Agreement;
WHEREAS, simultaneously with the execution and delivery of this Agreement, the Company is
executing and delivering an agreement and plan of merger (the “Merger Agreement”) with McJ
Holding Corporation, a Delaware corporation and wholly owned subsidiary of Holdco
(“Parent”) and Hg Acquisition Corp., a West Virginia corporation and wholly owned
subsidiary of Parent (“Merger Sub”), pursuant to which Merger Sub will merge with and into
the Company (the “Merger”) and the Company will become a wholly owned subsidiary of Parent;
WHEREAS, each of the Contributing Shareholders owns the number of shares (rounded for
purposes of the Merger Agreement to the nearest one ten-thousandth
(1/10,000) of a share) of
common stock, par value $700.00 per share of the Company (“Company Shares”) set forth
opposite his, her or its name in Column D of Schedule I to the Merger Agreement and desires to
contribute to Holdco the number of Company Shares set forth opposite his, her or its name in
Column D of Schedule I to the Merger Agreement (“Contribution Shares” and all Contribution
Shares owned by the Contributing Shareholders, collectively “the Contribution Shares”);
WHEREAS, the parties hereto desire that the Contribution Shares be contributed immediately
prior to the consummation of the Merger by or on behalf of the Contributing Shareholders on the
terms and conditions provided in this Agreement; and
WHEREAS, the contribution of the Contribution Shares by or on behalf of the Contributing
Shareholders to Holdco in exchange for the Per Share Consideration (as defined below) is part of a
larger transaction that is intended to be governed by Sections 707 and 721 of the Internal Revenue
Code of 1986, as amended (the “Code”);
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties,
covenants and agreements contained herein and in the Merger Agreement, the parties hereto agree as
follows:
ARTICLE I
Contribution
1.1. Contribution. At the Closing provided for in Section 1.3, Holdco shall
receive from each of the Contributing Shareholders, and each of the Contributing
Shareholders shall contribute or cause to be contributed to Holdco, all Contribution Shares
owned by such Contributing Shareholder for the Per Share Consideration (as defined below).
1.2. Consideration. The consideration per Contribution Share (the “Per Share
Consideration”) shall be as set forth in Section 4.1(a)(ii) of the Merger Agreement.
1.3. Closing. Subject to the satisfaction or waiver of the conditions set forth in
Article IV, the closing of the transactions contemplated hereunder (the “Closing”)
shall take place at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx (or such other place as the parties may agree) immediately prior to the consummation of
the Merger. The actual time and date of the Closing is referred to herein as the “Closing
Date”.
1.4. Delivery by the Company. The parties hereto agree that contribution to
Holdco by the Company of Contribution Shares on behalf of any Contributing Shareholder
pursuant to, and accompanied by, a letter of transmittal duly executed and delivered by such
Contributing Shareholder prior to the Effective Time (as defined in the Merger Agreement),
substantially in the form set out in Annex A (the “Letter of Transmittal”) shall
satisfy such Contributing Shareholder’s obligation to deliver Contribution Shares under this
Agreement.
ARTICLE II
Representations and Warranties
2.1. Representations and Warranties of the Contributing Shareholders. Each
Contributing Shareholder hereby represents and warrants to Holdco that:
(a) Such Contributing Shareholder has all requisite power and authority and has
taken all action necessary in order to execute, deliver and perform his obligations
under this Agreement, the Holdco LLC Agreement and the Registration Rights Agreement.
Each of this Agreement, the Holdco LLC Agreement and the Registration Rights Agreement
has been duly executed and delivered by such Contributing Shareholder and constitutes a
valid and binding agreement of such Contributing Shareholder enforceable against him in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. Such Contributing
Shareholder is an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933 and, in connection with the
execution of this Agreement, agrees to deliver such certificates to that effect as
Holdco may request.
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(b) Such Contributing Shareholder is the sole record owner of, and has good and
marketable title to, the number of Contribution shares (rounded for purposes of the
Merger Agreement to the nearest one ten-thousandth (1/10,000) of a share) set forth
opposite his name in Column D of Schedule I to the Merger Agreement, free and clear of
any lien, charge, pledge, security interest, claim or other encumbrance (collectively,
“Liens”). Except as set forth on said Schedule I to the Merger Agreement, such
Contributing Shareholder does not own any shares of capital stock or other securities
of the Company or any securities or obligations convertible, or exchangeable or
exercisable for, or giving him a right to subscribe for or acquire, any securities of
the Company. Upon consummation of the contribution of Contribution Shares by such
Contributing Shareholders as provided in this Agreement, Holdco will acquire good and
marketable title to such Contribution Shares free and clear of all Liens.
(c) The execution, delivery and performance of this Agreement by such Contributing
Shareholder does not and will not (i) require him, her or it to obtain any consents,
registrations, approvals, permits or authorizations from any domestic or foreign
governmental or regulatory authority, agency, commission body, court or other
legislative, executive or judiciary government entity (except as would not have a
material adverse effect on his, her or its ability to perform his, hers or its
obligations under this Agreement) or (ii) constitute or result in a breach or violation
of, or a default under, or result in the creation of a lien or encumbrance on any of
his, hers or its properties pursuant to any bond, debenture, note or other evidence of
indebtedness of him, her or it or any indenture or other material agreement to which
he, she or it is a party or by which he, she or it is bound or to which any of his, her
or its material property may be subject (except as would not have a material adverse
effect on his, her or its ability to perform his, her or its obligations under this
Agreement).
(d) Such Contributing Shareholder has not granted and is not a party to any
proxy, voting trust or other agreement which conflicts with any provision of this
Agreement, and such Contributing Shareholder shall not grant any proxy or become party
to any voting trust or other agreement which conflicts with any provision of this
Agreement.
2.2. Representations and Warranties of Holdco. Holdco hereby represents and
warrants to each of the Contributing Shareholders that as to itself:
(a) It has all requisite corporate power and authority and has taken all
corporate action necessary in order to execute, deliver and perform its obligations
under this Agreement. This Agreement has been duly executed and
delivered by it and
constitutes its valid and binding agreement enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.
(b) Immediately following the Closing, all of such issued and outstanding
Holdco Units will be duly authorized and validly issued, fully paid and
nonassessable.
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(c) Except
as set forth in Section 5.2(c) of the Merger Agreement, the execution,
delivery and performance of this Agreement by Holdco does not and will not (i) require
it to obtain any consents, registrations, approvals, permits or authorizations from or
to deliver any notice or make any report or other filing with any domestic or foreign
governmental or regulatory authority, agency, commission body, court or other
legislative, executive or judiciary government entity (except such as may have
previously been obtained or is permitted to be, and will be, filed or made promptly
following the date hereof) or (ii) constitute or result in a breach or violation of, or
a default under, or result in the creation of a lien or encumbrance on any of its
properties pursuant to any bond, debenture, note or other evidence of indebtedness of
it or any indenture or other material agreement to which it is a party or by which it
is bound or to which any of its material property may be subject (except as would not
adversely affect its ability to perform its obligations under this Agreement).
ARTICLE III
Deliveries at the Closing
3.1. Deliveries by Holdco at the Closing. At the Closing, Holdco shall:
(a) amend Schedule A to the Holdco LLC Agreement to reflect the Holdco Units
acquired by the Contributing Shareholders pursuant to this Agreement; and
(b) deliver to each Contributing Shareholder a copy of the Holdco LLC
Agreement duly executed by all GSCP Members (as defined therein).
3.2. Deliveries by the Contributing Shareholders at the Closing. At the
Closing, each Contributing Shareholder (or pursuant to Section 1.4 above, the Company) shall
deliver the following to Holdco:
(a) certificates representing the number of Contribution Shares set forth
opposite his, her or its name in Column D of Schedule I to the
Merger Agreement, to
Holdco, duly endorsed in blank or otherwise in proper form for transfer to Holdco.
ARTICLE IV
Conditions to Closing
4.1. Conditions to Obligations of Holdco. The obligations of Holdco to
consummate the transactions contemplated hereunder and to take the other actions at Closing
required by this Agreement are subject to the satisfaction or waiver by such party of the
following conditions as of the Closing Date:
The representations and warranties of each Contributing Shareholder set forth in
this Agreement shall have been true and correct in all material respects when
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made and shall be true and correct in all material respects as of, and as if made on,
the Closing Date.
4.2. Conditions to Obligations of the Contributing Shareholders. The obligations
of each Contributing Shareholder to consummate the transactions contemplated hereunder and to
take the other actions at Closing required by this Agreement are subject to the satisfaction
or waiver by such Contributing Shareholder of the following conditions as of the Closing
Date:
The representations and warranties of Holdco set forth in this Agreement shall
have been true and correct in all material respects when made and shall be true and
correct in all material respects as of, and as if made on, the Closing Date.
4.3. Merger not Consummated. The parties hereto agree that if the Merger is not
consummated on or prior to the third business day after the Closing, then the transactions
effected at the Closing shall be unwound and the provisions of this Agreement shall be
restored as if the Closing had not taken place and shall thereafter remain in full force and
effect until terminated pursuant to the terms hereof.
ARTICLE V
Termination
5.1.
Termination. This Agreement shall automatically terminate upon termination of the
Merger Agreement pursuant to the terms thereof prior to consummation of the Merger.
ARTICLE VI
Miscellaneous
6.1. Entire Agreement; Binding Effect; Assignment; No Third Party Beneficiaries.
This Agreement, the Holdco LLC Agreement, the Registration Rights
Agreement and the Shareholder Support Agreement (as defined in the Merger Agreement) constitute
the entire agreement, and supersede all other prior agreements, understandings, representations
and warranties both written and oral, among the parties, with respect to the subject matter
hereof and thereof. This Agreement shall be binding upon, inure to the benefit of and be
enforceable only by the parties hereto and their respective successors and permitted assigns.
No party may assign its rights or obligations under this Agreement to any other person or
entity without the prior written consent of the other parties and any purported assignment
without such consent is void. Nothing in this Agreement, express or implied, is intended to, or
shall, give to any person other than the parties hereto, their successors and permitted assigns
any benefit or any legal or equitable right, remedy or claim under this Agreement.
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6.2. Modification or Amendment; Waiver. This Agreement may only be amended,
modified, supplemented or waived with the written approval of each party hereto. No failure
or delay on the part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof or of any other or future exercise of any such right, power or
privilege.
6.3. Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument, and all
such counterparts shall together constitute the same agreement.
6.4.
Governing Law and Venue; Waiver of Jury Trial; Specific Performance.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. The parties hereby
irrevocably submit to the personal jurisdiction of the courts of the State of
Delaware located in the County of New Castle and the Federal courts of the United
States of America located in the County of New Castle solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or of
any such document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that this Agreement or any such document
may not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal court located in the County of New
Castle. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and, to the extent permitted by law, over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
6.5 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
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UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6.4.
(c) The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in Delaware State or
Federal court in the County of New Castle, this being in addition to any other remedy
to which such party is entitled at law or in equity.
6.5. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, or by facsimile:
If to Holdco:
c/o GS Capital Partners V Fund, L.P.,
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
and:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP,
Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Contributing Shareholders:
XxXxxxxx Corporation,
000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000.
Attention: Xxxxxxx X. Xxxxxx
with a copy to X.X. Xxxxxx III
Fax: (000) 000-0000
000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000.
Attention: Xxxxxxx X. Xxxxxx
with a copy to X.X. Xxxxxx III
Fax: (000) 000-0000
with a copy to
Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
Attention: Xxxxxxxx X. Xxxxxxxxx III
Fax: (000) 000-0000
Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
Attention: Xxxxxxxx X. Xxxxxxxxx III
Fax: (000) 000-0000
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or to such other persons or
addresses as may be designated in writing
by the party to receive such notice as
provided above. Any notice, request,
instruction or other document given as
provided above shall be deemed given to
the receiving party upon actual receipt,
if delivered personally; three business
days after deposit in the mail, if sent
by registered or certified mail; upon
confirmation of successful transmission
if sent by facsimile (provided
that if given by facsimile such notice,
request, instruction or other document
shall be followed up within one business
day by dispatch pursuant to one of the
other methods described herein); or on
the next business day after deposit with
an overnight courier, if sent by an
overnight courier.
6.6.
Interpretation; Construction.
(a) The headings herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof. Where a reference in this Agreement is made to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this
Agreement. In the event that an ambiguity or a question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any provision of this Agreement.
6.7. Tax Matters. The parties hereto shall not take any position on any tax
return inconsistent with the treatment of the contribution of the Contribution Shares to
Holdco in exchange for Holdco Units when considered together with the Merger as a transaction
governed by Sections 707 and 721 of the Code, unless otherwise required pursuant to a
“determination” within the meaning of Section 1313(a) of the Code. Notwithstanding any other
provision of this Agreement, the obligations imposed by this Section 6.7 will survive
indefinitely.
(the remainder of this page has been intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first mentioned above.
| XXXXXXXX CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
| By: | /s/ X.X. Xxxxxx III | /s/ X. Xxxxxx Xxxxxx | ||||
| Name: | X.X. Xxxxxx III | X. Xxxxxx Xxxxxx | ||||
| Title: | President and Chief | |||||
| Executive Officer | ||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||
| McJ HOLDING LLC | Xxxxxxx X. Xxxxxx | |||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxxx | /s/ Xxxxxxxxx Xxxxxxxxx Xxxxxx | ||||
| Name: | Xxxxxxxxx Xxxxxxxxxx | Xxxxxxxxx Xxxxxxxxx Xxxxxx | ||||
| Title: | Vice President | |||||
| /s/ X. X. Xxxxxx III | ||||||
| X. X. Xxxxxx III | ||||||
| /s/ Xxxxx Xxxxx Xxxxxx-Xxxxx | ||||||
| Xxxxx Xxxxx Xxxxxx-Xxxxx | ||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
| /s/ Xxxxxxxxx X. Xxxxxx | ||||||
| Xxxxxxxxx X. Xxxxxx | ||||||
| /s/ X. X. Xxxxxx, Xx. | ||||||
| X. X. Xxxxxx, Xx. | ||||||
| /s/ Xxxxxxxxx X. and X.X. Xxxxxx | ||||||
| Xxxxxxxxx X. and X.X. Xxxxxx | ||||||
| Foundation | ||||||
[XxXxxxxx Contribution Agreement Signature Page]
| /s/ Xxxxxxx X. Xxxxxx — TRUSTEE | ||
| Xxxxxxx X. Xxxxxx, Trustee for | ||
| Xxxxxx Xxxxx Xxxxxx | ||
| /s/ Xxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxx | ||
| /s/ Xxxxxxxxx X. Xxxxxx | ||
| Xxxxxxxxx X. Xxxxxx, Trustee for | ||
| Colin Xxxxxx Xxxxxx | ||
| /s/ Xxxxx X. Xxxxxx, Xx. TRUSTEE | ||
| Xxxxx X. Xxxxxx, Xx., Trustee for | ||
| Xxxxx Xxxxxxx | ||
| /s/ Xxxxxxxxx X. Xxxxxx | ||
| Xxxxxxxxx X. Xxxxxx, Trustee for | ||
| Xxxxxxxxx Xxxxx Xxxxxx | ||
| /s/ Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxx, Trustee for | ||
| Xxxxxxx X. Xxxxxx | ||
| /s/ Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxx, Trustee for | ||
| Xxxxxxx X.X. Xxxxxx | ||
| /s/ Xxxxx Xxxxx Xxxxxx-Xxxxx | ||
| Xxxxx Xxxxx Xxxxxx-Xxxxx, Trustee | ||
| for Xxxxxxx Xxxxx Xxxxx, XX | ||
| /s/ Xxxxx Xxxxx Xxxxxx-Xxxxx | ||
| Xxxxx Xxxxx Xxxxxx-Xxxxx, Trustee | ||
| for Xxxxxxx Xxxxxxxxx Zande |
[XxXxxxxx Contribution Agreement Signature Page]
| /s/ Xxxxx X. Xxxx | ||
| Xxxxx X. Xxxx, as Trustee of the | ||
| Xxxxxx Xxxxxxx Kend Fund | ||
| /s/ Xxxxx X. Xxxx | ||
| Xxxxx X. Xxxx, as Trustee of the | ||
| Sydney Xxxxxxxxx Xxxx Fund |
[XxXxxxxx Contribution Agreement Signature Page]
