AGREEMENT OF PURCHASE AND SALE OF STOCK
EXHIBIT
99.1
AGREEMENT (this “Agreement”), dated as of December 7, 2005, by and between XXXXX & XXXXX
COMPANY, a Delaware corporation having its principal office at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx (“Purchaser”), and WARBURG PINCUS INVESTORS LIQUIDATING TRUST, as successor to
Warburg, Xxxxxx Investors, L.P., having offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Seller”).
W I T N E S S E T H:
WHEREAS, Seller, as of the date hereof, owns an aggregate of 5,861,902 shares of Purchaser’s
common stock, par value $.01 per share (the “Common Stock”), which represents all of the issued and
outstanding shares of Purchaser’s Common Stock owned by Seller and any “Affiliate” (as hereinafter
defined) of Seller (all such shares of Common Stock are hereinafter collectively referred to as the
“Shares”); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller,
all of the Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
in order to set forth the terms and conditions of the purchase and sale of stock and the manner of
carrying the same into effect, the parties hereto hereby agree as follows:
1. Purchase and Sale of Stock. Subject to and upon the terms and conditions set forth
in this Agreement, upon the “Closing” (as hereinafter defined), Seller will sell, transfer, convey,
assign and deliver to Purchaser, and Purchaser will purchase all of Seller’s right, title and
interest in and to the Shares.
2. Purchase Consideration. As full and total consideration for the sale, transfer,
conveyance, assignment and delivery of the Shares by Seller to Purchaser, and in reliance upon the
representations and warranties made herein by Seller, upon the Closing Purchaser agrees to pay to
the order of Seller Twenty Three Million Four Hundred Forty Seven Thousand Six Hundred and Eight
Dollars ($23,447,608) (the “Purchase Price”) by wire transfer in accordance with the wire transfer
instructions set forth on Exhibit A annexed hereto.
3. Closing. The closing of the transaction contemplated under this Agreement shall
take place simultaneously upon the execution hereof at the offices of Xxxxxxxx Xxxx & Brandeis,
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place or in such other manner as
agreed to by the parties (the “Closing”).
4. Seller’s Obligations at Closing. At the Closing, Seller shall deliver to Purchaser
(and, as applicable, execute):
(i) stock certificate(s) representing the Shares, duly endorsed in blank, and with all
necessary, if any, stock transfer stamps attached;
(ii) a waiver and release from Seller and certain of Seller’s Affiliates in favor of Purchaser
in substantially the form of Exhibit B annexed hereto (the “Release”); and
(iii) all other documents and instruments required to be delivered to Purchaser pursuant to
the provisions of this Agreement.
5. Purchaser’s Obligations at Closing. At the Closing, Purchaser agrees to deliver to
the order of Seller by wire transfer the entire Purchase Price.
6. Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows:
(a) Existence; Due Execution, Power and Authorization. Seller is a trust validly
existing under the laws of the State of New York. The execution, delivery and performance by the
Seller of this Agreement and the Release is not and will not be contrary to the provisions of the
constitutional documents of Seller and will not result in any breach of the terms of, or constitute
a default under, any instrument or agreement to which Seller is a party or by which its property is
bound. The execution, delivery and performance by Seller of this Agreement and the Release and the
consummation of the transactions contemplated hereby and thereby are within Seller’s power and have
been authorized by all necessary action on the part of Seller. Accordingly, Seller has the full
right, power and authority to enter into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by Seller to authorize the execution,
delivery and performance of this Agreement have been properly taken, and this Agreement constitutes
the valid and binding obligation of Seller, enforceable in accordance with its terms, except that
such enforcement may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium and similar law affecting creditors’ rights generally.
(b) Ownership of Seller’s Common Stock. As of the Closing, Seller is the lawful
record and beneficial owner of all of the Shares, free and clear of any liens, claims, encumbrances
or restrictions of any kind (other than any restrictions under the Securities Act of 1933, as
amended, or other applicable securities laws). Except with respect to that certain voting agreement
dated January 24, 1997 by and among Warburg, Xxxxxx Investors, L.P., Archon Group, L.P. and Xxxx
Xxxxxxx, Xxxxxxx X. Xxxxxxx and C. Xxxxxxx Xxxxxxx (the “Voting Agreement”), Seller is not a party
to or otherwise subject to any agreement, understanding or arrangement of any nature whatsoever,
regarding the ownership, transfer, sale, disposition, purchase, acquisition or voting of the
Shares. Additionally, other than the Shares, neither Seller nor any Affiliate of Seller directly
or indirectly, beneficially or otherwise, owns any other equity or debt securities of Purchaser, or
has the right (through the exercise of a derivative security or otherwise) or has any agreement or
understanding of any nature whatsoever (whether written or oral) to acquire any other equity or
debt securities of Purchaser. Upon the delivery thereof to Purchaser at the Closing, together with
executed stock transfer forms in respect thereof,
Purchaser will acquire good, marketable and valid title to, and undisputed record and
beneficial ownership of, the Shares, free and clear of any liens, claims, encumbrances or
restrictions of any nature whatsoever.
7. Representations and Warranties of Purchaser. Purchaser represents and warrants to
Seller as follows:
(a) Organization; Due Execution, Power and Authorization. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the State of Delaware and
has full corporate power and authority to enter into this Agreement. Accordingly, Purchaser has
the full right, power and authority to enter into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by Purchaser to authorize the execution,
delivery and performance of this Agreement have been properly taken, and this Agreement constitutes
the valid and binding obligation of Purchaser, enforceable in accordance with its terms, except
that such enforcement may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium and similar law affecting creditors; rights generally.
8. Covenants of Parties.
(a) It is expressly acknowledged, understood and agreed by Seller that from time to time there
exists information which may be of a material nature concerning various aspects of the business and
prospects of the Company that is not publicly available (collectively, the “Non-Public
Information”), and which Non-Public Information, if Seller was aware of, might influence or change
Seller’s decision to sell the Shares to Purchaser for the Purchase Price set forth herein, or at
all. Nonetheless, Seller expressly agrees, and it shall be of the essence hereof, on its own
behalf and on behalf of its Affiliates, pursuant to the Release annexed hereto as Exhibit B
and delivered herewith, to forever waive and release the Company, and all of the Company’s
predecessors and successors and all of the Company’s former, present and future officers,
directors, employees, stockholders, Affiliates, agents (including but not limited to attorneys and
auditors) and assigns, from any and all claims or liabilities of any nature whatsoever arising out
of or related to any Non-Public Information. As used herein, the term “Affiliate” shall mean with
respect to any “Person” (as hereinafter defined), any other Person, directly or indirectly,
controlling, controlled by, or under common control with, such Person. For purposes of this
definition, the term “control” (including the correlative terms “controlling”, “controlled by” and
“under common control with”) means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise. As used herein, “Person” shall mean any individual,
corporation, limited liability company, shareholder, member, manager, general partnership, limited
partnership, general partner, limited partner, association, trust, trustee, beneficiary, or any
other natural person, entity or organization, including but not limited to any governmental agency
or authority or any self regulatory organization.
(b) The parties expressly agree that upon the Closing, the Voting Agreement will be terminated
and of no further force and effect.
(c) The parties acknowledge and agree that the Shares are being offered and sold hereunder in
reliance upon an exemption from the registration requirements of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
9. Survival of Representations, Warranties and Covenants. All statements,
representations, warranties and covenants made by each of the parties hereto (and in any Exhibit
hereto) are and shall be true and correct as of the Closing, and each of them shall survive the
Closing.
10. Notices. Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or certified U.S.
mail, return receipt requested, by hand, or by a recognized overnight courier, addressed to the
parties hereto at their addresses set forth above or such other addresses as they may from
time-to-time designate by written notice, given in accordance with the terms of this Section,
together with copies thereof as follows:
In the case of Purchaser, a copy simultaneously by like means to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile no.: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile no.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
In the case of Seller, a copy simultaneously by like means to:
Xxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile no.: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile no.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the date hand
delivered, (ii) on the first business day following the sending thereof by overnight courier, and
(iii) on the seventh calendar day (or, if it is not a business day, then the next succeeding
business day thereafter) after the depositing thereof into the exclusive custody of the U.S. Postal
Service.
11. Miscellaneous.
(a) This Agreement, including the Exhibits annexed hereto, constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes any and
all prior agreements, arrangements or understandings with respect hereto, and may not be
modified or amended except by a written agreement specifically referring to this Agreement signed
by all of the parties hereto.
(b) No waiver of any breach or default hereunder shall be considered valid unless in writing
and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(c) This Agreement shall be binding upon and inure to the benefit of each party hereto, its
successors and assigns, and each individual party hereto and his heirs, personal representatives,
successors and assigns.
(d) The section headings contained herein are for the purposes of convenience only and are not
intended to define or limit the contents of said sections.
(e) Each party hereto shall cooperate, shall take such further action and shall execute and
deliver such further documents as may be reasonably requested by any other party in order to carry
out the provisions and purposes of this Agreement.
(f) All legal, accounting and other costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party or parties incurring
the same.
(g) This Agreement and all amendments hereto shall be governed by, and construed and enforced
in accordance with the internal laws of the State of Delaware without giving effect to such State’s
principles of conflict of laws.
(h) If any provision of this Agreement shall be held invalid or unenforceable, such invalidity
or unenforceability shall attach only to such provision, only to the extent it is invalid or
unenforceable, and shall not in any manner affect or render invalid or unenforceable any other
severable provision of this Agreement, and this Agreement shall be carried out as if any such
invalid or unenforceable provision were not contained herein.
(i) Seller and Purchaser agree that, without the prior written consent of the other, except to
the extent required by federal securities law, it shall not make or permit to be made any public or
private disclosure or announcement of any kind regarding this Agreement or the transactions
contemplated hereby, either upon the Closing or any time thereafter. In connection with any such
disclosures required by federal securities laws, the parties will, in good faith, consult with one
another before effecting any such disclosures.
(j) Seller, on the one hand, and Purchaser, on the other hand, represent and warrant to the
other that there is no obligation to pay any commission, finder’s fee, broker’s fee or similar
charge in connection with the transactions provided for in this Agreement, resulting from any
agreements or other action of such representing party; and each of the parties hereto agrees to
indemnify the other with respect to the foregoing.
(k) The parties hereto hereby irrevocably consent to the exclusive jurisdiction and venue of
all Federal and State courts located in the County of Kent, State of Delaware in connection with
any proceedings brought by Seller, Purchaser, or their successors or assigns, in connection with
this Agreement.
(l) This Agreement may be executed and delivered in one or more original or facsimile
counterparts, each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
XXXXX & XXXXX COMPANY |
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By: | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Chief Executive Officer | |||
WARBURG PINCUS INVESTORS LIQUIDATING TRUST |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Trustee | |||