EXHIBIT 8
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of July 25,
2001 (the "Effective Date") by and among Xxxxxxx Partners, LLC, a Delaware
limited liability company ("Xxxxxxx Partners"), and June X. Xxxxxx, Xxxx X.
Xxxxxxx, Xx. and United States Trust Company of New York, as Co-Executors of The
Estate of Xxxxxx X. Xxxxxx, late of New York, New York (the "Estate").
RECITALS:
X. Xxxxxxx Partners and the Estate, among others, are parties to a certain
Recapitalization Agreement, dated as of June 25, 2001 (the "Recapitalization
Agreement"), with Xxxxxxx International, Ltd., a Delaware corporation (the
"Company").
B. Pursuant to Section 2 (b) of the Recapitalization Agreement, Xxxxxxx
Partners has agreed to purchase from the Estate for the benefit of the Company
(i) 919,569 shares of the common stock, par value $.001 per share, of the
Company (the "Estate Shares") and (ii) promissory notes of the Company in the
aggregate principal amount of $1,851,168.75 (together with all interest accrued
thereon, the "Estate Notes") for an aggregate purchase price of $637,935.35 at a
mutually agreeable date on or before July 25, 2001.
C. Accordingly, Xxxxxxx Partners now desires to purchase from the Estate,
and the Estate desires to sell to Xxxxxxx Partners, the Estate Shares and the
Estate Notes (collectively, the "Securities") on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale. On the terms and subject to the conditions of this
Agreement, at the Closing (as hereinafter defined), Xxxxxxx Partners agrees to
purchase from the Estate, and the Estate agrees to sell to Xxxxxxx Partners, the
Securities. The aggregate purchase price for the Securities shall be $637,935.35
(the "Purchase Price"), $500,000 of which shall be attributable to the purchase
and sale of the Estate Notes, and $137,935.35 of which shall be attributable to
the purchase and sale of the Estate Shares.
1.2 Closing.
(a) The closing of the transactions contemplated by this Agreement (the
"Closing") will take place at the offices of United States Trust Company of New
York, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX, on July 25, 2001 (the "Closing Date")
so long as all conditions to the obligations of the parties to consummate the
transactions contemplated hereby have been
satisfied or waived, or at such other time and location as is mutually agreed
upon by Xxxxxxx Partners and the Estate.
(b) At the Closing, the Estate will deliver to Xxxxxxx Partners the
following:
(i) the certificates evidencing and representing the Estate Shares,
duly endorsed for transfer to Xxxxxxx Partners or accompanying stock powers
with signatures guaranteed in a form customarily acceptable for stock
transfer,
(ii) the original copies of the Estate Notes, duly endorsed for
transfer to Xxxxxxx Partners, and
(iii) such other documents or instruments as may be reasonably
requested by Xxxxxxx Partners to transfer to Xxxxxxx Partners good title to
the Securities.
(c) At the Closing, Xxxxxxx Partners shall deliver to the Estate a
certified check or bank draft in the amount of the Purchase Price or, if
requested by the Estate, Xxxxxxx Partners will wire transfer the Purchase Price
to an account designated by the Estate.
(d) At the Closing, the Estate shall deliver an opinion of counsel to the
Estate in a form reasonably satisfactory to Xxxxxxx Partners.
ARTICLE II
CONDITIONS TO CLOSING
2.1 Conditions to the Estate's Obligations. The obligation of the Estate to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions precedent on or before the Closing
Date:
(a) the representations and warranties made by Xxxxxxx Partners in Article
III herein shall be true and correct in all material respects at and as of such
Closing Date as though then made and as though references to the Closing Date
were substituted for references to the date of this Agreement;
(b) all proceedings to be taken by Xxxxxxx Partners in connection with the
consummation of the transactions contemplated hereby, and all certificates,
instruments, opinions, and other documents required to be delivered by Xxxxxxx
Partners to effect the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to the Estate and its counsel; and
(c) all governmental filings, authorizations and approvals that are
required for the consummation of the transactions contemplated hereby, if any,
shall have been duly made and obtained and all waiting periods will have expired
on terms reasonably satisfactory to the Estate.
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Any condition specified in this Section 2.1 may be waived by the Estate in its
sole discretion.
2.2 Conditions to Xxxxxxx Partners' Obligations. The obligation of Xxxxxxx
Partners to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following conditions precedent on or before
the Closing Date:
(a) the representations and warranties made by the Estate in Article IV
herein shall be true and correct in all material respects at and as of such
Closing Date as though then made and as though references to the Closing Date
were substituted for references to the date of this Agreement;
(b) all proceedings to be taken by the Estate in connection with the
consummation of the transactions contemplated hereby, and all certificates,
instruments, opinions, and other documents required to be delivered by the
Estate to effect the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to Xxxxxxx Partners and its counsel; and
(c) all governmental filings, authorizations and approvals that are
required for the consummation of the transactions contemplated hereby, if any,
shall have been duly made and obtained and all waiting periods will have expired
on terms reasonably satisfactory to Xxxxxxx Partners.
Any condition specified in this Section 2.2 may be waived by Xxxxxxx Partners in
its sole discretion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXX PARTNERS
As a material inducement to the Estate to enter into this Agreement,
Xxxxxxx Partners hereby represents and warrants to the Estate as follows:
3.1 Investment Intention. Xxxxxxx Partners is purchasing the Estate Shares
and the Estate Notes for investment and not for distribution in accordance with
and subject to the terms and conditions of the Recapitalization Agreement.
3.2 Receipt of Information. Xxxxxxx Partners confirms that (a) it has been
given the opportunity to examine all relevant documents and to ask questions of,
and to receive answers from, representatives of the Company concerning the
Company, the Securities and the transactions described in this Agreement, and
(b) it has relied on publicly available information and its own knowledge or the
advice of its own counsel, accountants, or advisors with regard to the legal,
tax, and other considerations involved in the transactions described in this
Agreement; and no representations have been made to Xxxxxxx Partners by the
Estate concerning the Company or its business or prospects, or other matters,
except as set forth in this Agreement.
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3.3 Accredited Investor Status. Xxxxxxx Partners is an accredited investor
as defined in Rule 501(a) of Regulation D under the Securities Act of 1933.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ESTATE
As a material inducement to Xxxxxxx Partners to enter into this Agreement,
the Estate hereby represents and warrants to Xxxxxxx Partners, as follows:
4.1 Authorization of the Transaction. The Estate has full power and
authority, and has obtained all approvals and consents required to enter into,
execute and deliver this Agreement, and to perform fully its obligations under
this Agreement. No other proceedings on the part of the Estate are necessary to
approve and authorize the execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby.
4.2 Due Execution and Delivery. This Agreement has been duly executed and
delivered by the duly qualified legal representatives of the Estate and
constitutes a valid and binding agreement of the Estate, enforceable against the
Estate in accordance with its terms.
4.3 Absence of Conflicts. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (a) conflict with or result in a breach of any of the provisions
of, (b) constitute a default under, (c) result in a violation of, or (d) require
any authorization, consent, approval, exemption or other action by or notice to
any court or other governmental body under, the provisions of any agreement or
instrument to which the Estate is bound or by which it is affected (including
the will of or any trust created by Xxxxxx X. Xxxxxx), or any applicable law,
statute, rule or regulation or any judgment, order or decree to which the Estate
is subject.
4.4 Title. The Estate is the owner of the Securities, free and clear of all
liens, claims and encumbrances of any nature whatsoever ("Liens") created by the
Estate. At the Closing, Xxxxxxx Partners will receive good title to the
Securities, free and clear of any Liens created by the Estate. The Co-Executors
of the Estate have no knowledge of any Liens created on the Securities prior to
the death of Xxxxxx X. Xxxxxx or any Liens on those Estate Shares acquired from
Park Investment Partners, Inc.
ARTICLE V
TERMINATION
5.1 Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) by mutual written consent of Xxxxxxx Partners and the Estate; or
(b) by either of Xxxxxxx Partners or by the Estate if there has been a
material misrepresentation or breach on the part of the other party to this
Agreement, if such breach is not cured within ten (10) days after receipt of
notice of such breach from the non-breaching party.
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5.2 Effect of Termination. In the event of termination of this Agreement by
either Xxxxxxx Partners or the Estate as provided above, this Agreement will
forthwith become void and there will be no liability on the part of any party
hereto to any other party hereto or its members, managers, executors or legal
representatives in respect hereof, except that nothing herein will relieve any
party to this Agreement from liability resulting from any breach of this
Agreement prior to such termination.
ARTICLE VI
COVENANT
Transfer of Securities. During the term of this Agreement, the Estate shall
not sell, convey, assign, pledge, otherwise transfer, or subject the Securities
to any claim or encumbrance, except as contemplated herein.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment and Waiver. This Agreement may be amended and any provision
of this Agreement may be waived, provided that any such amendment or waiver will
be binding upon a party only if such amendment or waiver is set forth in writing
executed by each of Xxxxxxx Partners and the Estate. No course of dealing
between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any party under or by reason of this Agreement.
7.2 Binding Agreement; Assignment. This Agreement and all of the provisions
hereof will be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by a
party without the prior written consent of the other party, except in accordance
with operation of law.
7.3 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Agreement.
7.4 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any person.
7.5 Headings; Interpretation. The headings used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement and
will not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement will be enforced and
construed as if no caption had been used in this Agreement. Whenever the term
"including" is used in this Agreement (whether or not the term is followed by
the phrase "but not limited to" or "without limitation" or words of similar
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effect) in connection with a listing of one or more items or matters, that
listing will be interpreted to be illustrative only and will not be interpreted
as a limitation on, or an exclusive listing of, such items or matters.
7.6 Entire Agreement. This Agreement, the Recapitalization Agreement, and
the documents referred to herein and therein contain the entire agreement
between the parties with respect to the subject matter hereof and thereof, and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof or thereof in any way.
7.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which taken
together will constitute one and the same instrument.
7.8 Execution by Telefacsimile Transmission. Telefacsimile transmissions of
any executed original document and/or retransmission of any executed
telefacsimile transmission shall be deemed to be the same as the delivery of an
executed original. At the request of any party hereto, the other parties shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties.
7.9 Governing Law. THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO
SHALL BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
7.10 Parties in Interest. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties and their respective
successors and assign any rights or remedies under or by virtue of this
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXXX PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Manager
The Estate of Xxxxxx X. Xxxxxx
By: /s/ June X. Xxxxxx
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June X. Xxxxxx, Co-Executor
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Xx., Co-Executor
By: UNITED STATES TRUST COMPANY
OF NEW YORK, Co-Executor
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
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