STOCK REPURCHASE AGREEMENT
BETWEEN
REFAC TECHNOLOGY DEVELOPMENT CORPORATION
AND
XXXXXX X. XXXX AND THE ORGANIZATIONS
DATED AS OF DECEMBER 13, 1996
TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF THE SHARES; THE CLOSING
1.1 Purchase and Sale of Shares. . . . . . . . . 2
1.2 Appointment of the Sellers' Representative. . 2
1.3 Closing. . . . . . . . . . . . . . . . . . . 3
1.4 Deliveries by the Sellers. . . . . . . . . . 3
1.5 Deliveries by REFAC. . . . . . . . . . . . . 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
2.1 Authorization; Binding Obligation. . . . . . 5
2.2 Title to the Shares. . . . . . . . . . . . . 5
2.3 Consents and Approvals; No Violation. . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF REFAC
3.1 Authorization; Binding Obligation. . . . . . 7
ARTICLE IV
CONDITIONS TO SIGNING
4.1 Employment Agreement . . . . . . . . . . . . . 8
4.2 Opinion of Investment Banker . . . . . . . . . 8
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions Precedent to Obligations of REFAC. 8
5.2 Conditions Precedent to the Obligations of the
Sellers. . . . . . . . . . . . . . . . . . . 9
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representation and Warranties. . 10
6.2 Governing Law. . . . . . . . . . . . . . . . 11
6.3 Notices. . . . . . . . . . . . . . . . . . . 11
6.4 Expenses. . . . . . . . . . . . . . . . . . . 13
6.5 Specific Performance. . . . . . . . . . . . . 13
6.6 Descriptive Headings; Interpretation. . . . . 13
6.7 Counterparts. . . . . . . . . . . . . . . . . 14
6.8 Severability. . . . . . . . . . . . . . . . . 14
6.9 No Third-Party Beneficiaries. . . . . . . . . 15
ARTICLE VII
DEFINITIONS
7.1 Definitions. . . . . . . . . . . . . . . . . 15
THIS STOCK REPURCHASE AGREEMENT ("Agreement"),
dated December 13, 1996, is between REFAC Technology
Development Corporation, a Delaware corporation
("REFAC"), Xxxxxx X. Xxxx ("Lang") and the Xxxxxx X. Xxxx
Foundation (the "Sellers").
WHEREAS the Sellers are the direct beneficial
owners of 1,775,000 shares ("Shares") of common stock
(the "Common Stock") of REFAC, and each Seller is the
direct beneficial owner of the number of shares of Common
Stock of REFAC set forth next to each such Seller's name
on Schedule 1 hereto.
WHEREAS REFAC desires to purchase, and the
Sellers desire to sell, the Shares, upon the terms and
conditions set forth herein, at a price of $8.25 per
share.
NOW, THEREFORE, in consideration of the
premises and agreements hereinafter set forth, intending
to be legally bound, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES; THE CLOSING
1.1 Purchase and Sale of Shares. Upon the
terms and subject to the conditions hereof, at the
Closing (as defined in Section 1.3) the Sellers severally
shall sell, assign, transfer and deliver to REFAC, and
REFAC shall accept and purchase from the Sellers
severally all of the Shares owned by the Sellers, free
and clear of all Encumbrances. REFAC shall pay to the
Sellers severally $8.25 per Share, or an aggregate of
$14,643,750, in Federal, clearing house or other
immediately available funds.
1.2 Appointment of the Sellers'
Representative. Each Seller hereby irrevocably appoints
Lang (the "Sellers' Representative") as such Seller's
attorney-in-fact and representative, to do any and all
things and to execute any and all documents in such
Seller's name, place and stead in connection with this
Agreement and the transactions contemplated hereby,
including, without limitation, to accept on such Seller's
behalf any amount payable to such Seller under this
Agreement, to give or receive, on such Seller's behalf,
any notice or instruction under this Agreement, or to
amend, terminate or extend, or waive the terms of, this
Agreement. REFAC shall be entitled to rely, as being
binding upon such Seller, upon any document or other
writing executed by the Sellers' Representative, and
REFAC shall not be liable to any Seller for any action
taken or omitted to be taken by REFAC in reliance
thereon.
1.3 Closing. Upon the terms and subject to
the conditions contained in this Agreement, the closing
of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 A.M., New York City Time on the earlier
of (i) February 15, 1997 or (ii) such other time and
place as the Sellers and REFAC shall mutually agree upon
in writing. The date on which the Closing actually takes
place is referred to as the "Closing Date".
1.4 Deliveries by the Sellers. At the
Closing, the Sellers severally are delivering to REFAC
(unless previously delivered) the following:
(a) stock certificates representing the
Shares, accompanied by stock powers duly endorsed in
blank or accompanied by duly executed instruments of
transfer, with all necessary transfer tax and other
revenue stamps affixed thereto;
(b) a receipt for the payments provided
for by Section 1.1 hereof;
(c) the resignation of Lang as Chief
Executive Officer of REFAC; and
(d) an executed Retirement Agreement (as
defined in Section 5.1(c)).
1.5 Deliveries by REFAC. At the Closing,
REFAC is delivering (unless previously delivered) the
following:
(a) To the Sellers, the payments provided
for in Section 1.1 hereof;
(b) To the Sellers, certain resolutions
of the Board of Directors of REFAC approving this
Agreement, the Amended and Restated Employment Agreement
(as defined in Section 4.1 and the Retirement Agreement
and the transactions contemplated hereby and thereby; and
(c) To Lang, an executed Retirement
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EACH SELLER
Each Seller represents and warrants to REFAC as
follows:
2.1 Authorization; Binding Obligation. This
Agreement has been duly and validly executed and
delivered by such Seller and, assuming due authorization
by REFAC, constitutes a legal, valid and binding
obligation of such Seller, enforceable against such
Seller in accordance with its terms. Each Seller has the
legal capacity and all requisite power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to perform such
Seller's obligations hereunder. Such execution, delivery
and consummation has been duly and validly authorized by
all necessary action on the part of such Seller, and no
other proceedings on the part of such Seller are
necessary to authorize such execution, delivery and
consummation.
2.2 Title to the Shares. Immediately prior to
the Closing, each Seller was the record and beneficial
owner of, and had good and marketable title to, the
number of Shares set forth next to each such Seller's
name on Schedule 1 hereto, free and clear of all
Encumbrances. Such Shares are not subject to any
restrictions on transferability other than those imposed
by the Securities Act and applicable state securities
laws, and there are no options, warrants, calls,
commitments or rights of any character to purchase or
otherwise acquire Shares from such Seller pursuant to
which such Seller may be obligated to sell or transfer
any of such Shares. At the Closing, REFAC is acquiring
good and marketable title to such Shares, free and clear
of all Encumbrances.
2.3 Consents and Approvals; No Violation.
Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby,
nor compliance with any of the provisions hereof, will
(a) require any consent, waiver, approval, authorization
or permit of, or filing with or notification to, or any
other action by, any Governmental Authority by such
Seller, (b) violate any Law of any Governmental Authority
which may be applicable to such Seller, or by which any
of such Seller's businesses, properties or assets
(including without limitation, such Seller's Common
Stock) may be bound or affected or (c) violate, breach,
or conflict with, or constitute (with or without due
notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration
or any obligation to pay or result in the imposition of
any Encumbrance upon any of the property (including,
without limitation, such Seller's Common Stock)) under,
any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, Encumbrance, Contract, Permit,
Order, or other instrument or obligation to which such
Seller is a party or by which any of such Seller's
businesses, properties or assets (including, without
limitation, such Seller's Common Stock) may be bound or
affected.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF REFAC
REFAC represents and warrants to the Sellers as
follows:
3.1 Authorization; Binding Obligation. REFAC
has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to perform its
obligations hereunder. The execution and delivery of
this Agreement by REFAC and the consummation of the
transactions contemplated hereby by REFAC have been duly
and validly authorized by the Board of Directors of REFAC
and no other corporate proceedings on the part of REFAC
are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This
Agreement has been validly executed and delivered by
REFAC and, assuming due authorization, execution and
delivery by the Sellers, constitutes the legal, valid and
binding obligation of REFAC, enforceable against REFAC in
accordance with its terms.
ARTICLE IV
CONDITIONS TO SIGNING
4.1 Employment Agreement. As of the date
hereof, REFAC and Xxxxxx X. Xxxxxxx ("Xxxxxxx") shall
have executed and delivered the Amended and Restated
Employment Agreement dated December 13, 1996 (the
"Amended and Restated Employment Agreement")
substantially in the form attached hereto as Exhibit B
and when delivered hereunder such Amended and Restated
Employment Agreement will be a legal, valid, binding and
enforceable obligation of each of REFAC and Xxxxxxx.
4.2 Opinion of Investment Banker. As of the
date hereof, REFAC shall have received an opinion from
Southcoast Capital Corporation that the transaction is
fair to REFAC.
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions Precedent to Obligations of
REFAC. The obligation of REFAC to consummate the
transactions contemplated hereby is subject to the
satisfaction or waiver (subject to applicable law) on or
before the Closing of each of the following conditions:
(a) Accuracy of Representations and
Warranties. Each of the representations and warranties
of each Seller contained 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 the Closing as though made on and as of such date.
(b) Performance of Agreements. The
Sellers severally shall have performed and complied with
all of the covenants and agreements contained in this
Agreement to be performed or complied with by them at or
before the Closing.
(c) Retirement Agreement. REFAC and Lang
shall have executed and delivered the Retirement
Agreement dated December 13, 1996 (the "Retirement
Agreement") substantially in the form attached hereto as
Exhibit A and when delivered hereunder such Retirement
Agreement will be a legal, valid, binding and enforceable
obligation of each of REFAC and Lang.
5.2 Conditions Precedent to the Obligations of
the Sellers. The obligations of the Sellers severally
to consummate the transactions contemplated hereby are
subject to the satisfaction or waiver (subject to
applicable law) on or before the Closing of each of the
following conditions:
(a) Accuracy of Representations and
Warranties. Each of the representations and warranties
of REFAC contained 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 the
Closing as though made on and as of such date.
(b) Performance of Agreements. REFAC
shall have performed and complied with all of the
covenants and agreements contained in this Agreement to
be performed or complied with by REFAC at or before the
Closing.
(c) Retirement Agreement. REFAC and Lang
shall have executed and delivered the Retirement
Agreement substantially in the form attached hereto as
Exhibit A and when delivered hereunder such Retirement
Agreement will be a legal, valid, binding and enforceable
obligation of each of REFAC and Lang.
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representation and Warranties.
All representations and warranties made by any party
contained in this Agreement, or any certificate delivered
pursuant hereto or made in writing by or on behalf of
REFAC or the Sellers, as the case may be, in connection
with the transactions contemplated by this Agreement
shall survive for three years from the date hereof. The
covenants and agreements of REFAC or each of the Sellers,
as the case may be, shall survive the date hereof
indefinitely.
6.2 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
6.3 Notices. All notices, requests, claims,
demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if
delivered personally, telecopied (with confirmation of
receipt), delivered by nationally-recognized overnight
express service or sent by registered or certified mail
(postage prepaid, return receipt requested) to the
parties at the following addresses:
(a) If to REFAC to:
REFAC Technology Development Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
Copy to:
Skadden, Arps, Slate,
Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
(b) If to a Seller to:
Xxxxxx X. Xxxx
REFAC Technology Development Corp.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Copy to:
Kronish, Lieb, Weiner & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
or to such other address as the person to whom notice is
to be given may have previously furnished to the other in
writing in the manner set forth above, provided that
notice of a change of address shall be deemed given only
upon receipt.
6.4 Expenses. Each party hereto shall be
solely responsible for all expenses incurred by it or on
its behalf in connection with the preparation and
execution of this Agreement and the consummation of the
transactions contemplated hereby, including, without
limitation, the fees and expenses of its counsel,
accountants, brokers, finders, financial advisors and
other representatives.
6.5 Specific Performance. Without limiting
the rights of each party hereto to pursue all other legal
and equitable rights available to such party for the
other parties' failure to perform their obligations under
this Agreement, the parties hereto acknowledge and agree
that the remedy at law for any failure to perform their
obligations hereunder would be inadequate and that each
of them, respectively, shall be entitled to specific
performance, injunctive relief or other equitable
remedies in the event of any such failure.
6.6 Descriptive Headings; Interpretation. The
headings contained in this Agreement are for the
reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
References in this Agreement to Sections, Exhibits or
Schedules mean a Section, Exhibit or Schedule of this
Agreement unless otherwise indicated. References to this
Agreement shall be deemed to include the Exhibits hereto,
unless the context otherwise requires. The term "person"
shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, a governmental
entity or an unincorporated organization.
6.7 Counterparts. This Agreement may be
executed in any number of counterparts, each of which
shall be an original, but all of which together shall
constitute one instrument.
6.8 Severability. In the event that any one
or more of the provisions contained herein, or the
application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any
reason, the parties shall negotiate in good faith with a
view to the substitution therefor of a suitable and
equitable solution in order to carry out, so far as may
be valid and enforceable, the intent and purpose of such
invalid provision, provided, however, that the validity,
legality and enforceability of any such provision in
every other respect and of the remaining provisions
contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to
the fullest extent permitted by law.
6.9 No Third-Party Beneficiaries. Nothing in
this Agreement is intended to confer upon any person
other than the parties hereto any rights or remedies
hereunder.
ARTICLE VII
DEFINITIONS
7.1 Definitions. For purposes of this
Agreement, the following terms shall have the meanings
set forth below (such meanings to be equally applicable
to both the singular and plural forms of the terms
defined):
"Closing" shall have the meaning set forth in
Section 1.3 hereof.
"Closing Date" shall have the meaning set forth
in Section 1.3 hereof.
"Code" shall mean the Internal Revenue Code of
1986, as amended.
"Common Stock " shall have the meaning set
forth in the preamble.
"Encumbrance" shall mean any lien, encumbrance,
proxy, voting trust arrangement, pledge, security
interest, collateral security agreement, financing
statement (and similar notices) filed with any
Governmental Authority, claim (including any claim as
defined in the Code), charge, equities, mortgage, pledge,
objection, title defect, option, restrictive covenant or
restriction on transfer of any nature whatsoever, and the
interest of the lessor in any property subject to a
capital lease.
"Governmental Authority" shall mean any
government or political subdivision thereof, whether
federal, state, local or foreign, or any agency,
department, commission, board, bureau, court, tribunal,
body, administrative or regulatory authority or
instrumentality of any such government or political
subdivision.
"Law" shall mean any law (including common
law), rule, regulation, restriction (including zoning),
code, statute, ordinance, order, writ, injunction,
judgment, decree or other requirement of a Governmental
Authority.
"Order" shall mean any order, judgment,
injunction, award, decree, writ, rule or similar action
of any Governmental Authority.
"Organizations" shall have the meaning set
forth in the preamble.
"Permit" shall mean any franchise, license,
certificate, approval, identification number,
registration, permit, authorization, order or approval
of, and any required registration with, any Governmental
Authority.
"REFAC" shall mean REFAC Technology Development
Corporation, a Delaware Corporation.
"Securities Act" shall mean the Securities Act
of 1933, as amended, and the rules and regulations
promulgated thereunder.
"Sellers" shall have the meaning set forth in
the preamble.
"Sellers' Representative" shall have the
meaning set forth in Section 1.2 hereof.
"Shares" shall have the meaning set forth in
the preamble.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, on the day and year first above
written.
REFAC TECHNOLOGY DEVELOPMENT
CORPORATION
By: ----------------------------
Name:
Title:
THE SELLERS:
--------------------------------
Xxxxxx X. Xxxx
XXXXXX X. XXXX FOUNDATION
By:-----------------------------
Name:
Title:
Schedule 1
Ownership of Shares
Number of Shares
Xxxxxx X. Xxxx 832,912
Xxxxxx X. Xxxx Foundation 942,088
