Exhibit 25
EXECUTION COPY
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STOCK PURCHASE AND SUPPORT AGREEMENT
THIS STOCK PURCHASE AND SUPPORT AGREEMENT, dated as of October 3, 2005
(this "Agreement"), is by and among X.X. Xxxxxxxxx Corporation, a Delaware
corporation ("Parent"), X.X. Xxxxxxxxx Inc., a Delaware corporation and a
wholly owned subsidiary of Parent, and the stockholders of Parent listed on
Schedule A attached hereto (each, a "Stockholder" and collectively, the
"Stockholders").
RECITALS:
A. Immediately prior to the execution of this Agreement, the
Stockholders are the record and beneficial owners of the number of shares
of Convertible Cumulative Preferred Stock, par value $1 per share, of
Parent (the "Preferred Stock") set forth opposite such Stockholder's name
under the caption "Shares of Preferred Stock Beneficially Owned" on
Schedule A attached hereto, and each Stockholder has the right to vote (on
an as converted basis and as provided in the Certificate of Designations)
and dispose of all of such shares of Preferred Stock.
B. Dex Media, Inc., a Delaware corporation ("Dex Media"), Parent
and Forward Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Parent ("Merger Sub"), entered into an Agreement and Plan of
Merger, dated as of October 3, 2005 (as amended from time to time, the
"Merger Agreement"), pursuant to which Dex Media will be merged with and
into Merger Sub with Merger Sub as the surviving company (the "Merger").
C. Parent has agreed to repurchase and acquire from the
Stockholders, and the Stockholders have agreed to sell to Parent, subject
to the terms and conditions of this Agreement, all of the shares of
Preferred Stock owned by the Stockholders, as set forth opposite each such
Stockholder's name under the caption "Shares of Preferred Stock
Beneficially Owned" on Schedule A attached hereto (such shares of Preferred
Stock are referred to collectively in this Agreement as the "Purchased
Shares").
D. As a condition to entering into the Merger Agreement, which
will benefit the Stockholders directly and indirectly, Parent has required
that the Stockholders agree, and the Stockholders have agreed, to enter
into this Agreement, pursuant to which, among other things, the
Stockholders (a) agree to vote their Securities owned at the time of such
vote on matters relating to the Merger, the Merger Agreement and the
transactions contemplated by the Merger Agreement as provided herein,
including, without limitation, in favor of the issuance of shares of Parent
Common Stock in the Merger, and (b) consent under the Purchase Agreement
and the Certificate of Designations, on the terms and conditions set forth
herein, to the transactions contemplated herein and by the Merger
Agreement, including, without limitation, the Merger, the purchase of the
Purchased Shares and the Financing, and waive any right of first refusal in
connection with the issuance of shares of Parent Common Stock in the
Merger.
E. Prior to entering into this Agreement, the disinterested
members of Parent's board of directors directed management to negotiate the
terms of the transactions contemplated herein with the Stockholders on an
arms-length basis (the "Transactions").
F. The disinterested members of Parent's board of directors,
after review of the Transactions, which included advice from an independent
investment bank of national reputation, determined that the Transactions
were beneficial and fair to Parent and its stockholders, and that the
Transactions should be consummated as described herein.
G. Parent and the Stockholders desire to set forth certain
agreements herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Definitions. Capitalized terms used and not
defined herein have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement, the following terms
have the following meanings when used herein with initial capital letters:
(a) "Affiliate" means any Person that directly, or indirectly
through one or more Persons, controls, is controlled by, or is under
common control with, the Person specified. As used in this definition,
"control" (including its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise) of such Person.
(b) "Certificate of Designations" means the Certificate of
Designations governing the Convertible Cumulative Preferred Stock of
Parent.
(c) "Material Adverse Effect" means, with respect to any
reference to a state of facts, event, change, effect or condition,
such state of facts, event, change, effect or condition that has had,
has, or could reasonably be expected to have, a material adverse
effect on (i) the business, assets, operations, properties, condition
(financial or otherwise), contingent liabilities or material
agreements of Parent and Parent's subsidiaries, taken as a whole, (ii)
the ability of Parent to perform its obligations under this Agreement
or (iii) the validity or enforceability of this Agreement or the
rights or remedies of the Stockholders hereunder. Notwithstanding
anything contained herein to the contrary, the commencement by or
against Parent or any of Parent's subsidiaries of any case, proceeding
or other action under any law relating to bankruptcy, insolvency or
reorganization or the seeking of an appointment of a receiver,
trustee, custodian or other similar official for Parent or any of
Parent's subsidiaries or for all or any substantial part of Parent's
or any of Parent's subsidiaries' assets, shall be deemed a Material
Adverse Effect.
(d) "Parent Common Stock" means the common stock, par value $1
per share, of Parent.
(e) "Person" means any partnership, corporation, association,
joint stock company, trust, joint venture, limited liability company
or other entity or any individual or Governmental Entity.
(f) "Purchase Agreement" means the Preferred Stock and Warrant
Purchase Agreement, dated as of September 21, 2002, by and among
Parent and the Stockholders, as amended by the Letter Agreement, dated
as of November 25, 2002, by and among the Stockholders, Parent and
X.X. Xxxxxxxxx Inc., the Second Letter Agreement, dated as of January
3, 2003, by and among the Stockholders, Parent and X.X. Xxxxxxxxx Inc.
and the Third Letter Agreement, dated as of July 22, 2003, by and
among the Stockholders, Parent and X.X. Xxxxxxxxx Inc..
(g) "Rights Agreement" means the Rights Agreement, dated as of
October 27, 1998, as amended, by and between Parent and The Bank of
New York, as successor Rights Agent.
(h) "Securities" means the Preferred Stock together with any
shares of Parent Common Stock or other securities of Parent held by a
Stockholder as of the date hereof or acquired by a Stockholder in any
capacity or form after the date hereof and prior to the termination of
this Agreement whether pursuant to open market or other purchase or
upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities (including, without
limitation, any shares of Parent Common Stock issued to a Stockholder
upon any exercise of the Warrants or conversion of any shares of
Preferred Stock), or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any
capacity or otherwise.
(i) "Warrants" means the warrants to purchase shares of Parent
Common Stock issued pursuant to the Purchase Agreement.
ARTICLE II
PURCHASE AND SALE OF SHARES; CLOSING
Section 2.1. Sale and Transfer of Purchased Shares. At the Closing and
subject to the terms and conditions set forth in this Agreement, the
Stockholders shall sell, transfer, convey, assign and deliver to Parent,
and Parent shall repurchase and acquire from the Stockholders, the
Purchased Shares, free and clear of any mortgage, pledge, hypothecation,
rights of others, claim, security interest, encumbrance, title defect,
title retention agreement, voting trust agreement, option, lien, charge or
similar restrictions or limitations, including any restriction on the right
to vote, sell or otherwise dispose of the Purchased Shares but excluding
any restrictions or limitations under applicable law (collectively,
"Liens"). The purchase price to be paid to each Stockholder at the Closing
in exchange for such Stockholder's Purchased Shares is an amount in cash
per share equal to the sum of (i) the product of (A) $64.00 (the
approximate average closing price per share of Parent Common Stock on the
NYSE for the 30 trading days ending September 29, 2005) and (B) the number
of shares of Parent Common Stock into which such Purchased Share is
convertible as of (and including) September 30, 2005 plus (ii) an amount
equal to the amount of dividends that would have accrued on such Purchased
Share from and after October 1, 2005 through and including the earlier of
(A) the Closing Date and (B) January 3, 2006 had the parties not entered
into this Agreement (such sum of (i) and (ii), the "Purchase Price");
provided, however, that if the Closing occurs after January 3, 2006, the
Purchase Price will increase by an amount equal to the weighted average
annual interest rate with respect to Parent's or its Affiliates' high-yield
notes issued in connection with the Financing (and if no such securities
are issued, the average interest rate on the Dow Xxxxx CDX US High Yield
index as reported on Bloomberg for the 30 trading days immediately prior to
the Closing Date) based on the number of days elapsed after January 3, 2006
through and including the Closing Date and a 360-day year. The aggregate
Purchase Price to be paid to each Stockholder in exchange for such
Stockholder's Purchased Shares is referred to herein as the "Specified
Purchase Price." The Specified Purchase Price with respect to each
Stockholder shall be paid by wire transfer of immediately available funds
to the account(s) designated by the Stockholders. For the avoidance of
doubt, the parties hereby acknowledge and agree that, as of September 30,
2005, (1) the Convertible Preferred Amount (as defined in the Certificate
of Designations), which includes all dividends that accrued on the
Preferred Stock to such date, was $124,630,175 and (2) the Preferred Stock
was convertible by the Stockholders (excluding fractional shares) into an
aggregate of 5,182,125 shares of Parent Common Stock. Illustrations of how
the Purchase Price would be calculated on hypothetical Closing Dates is
attached hereto as Schedule 2.1.
Section 2.2. Closing. Subject to the satisfaction or waiver of the
conditions set forth in Section 2.3, the closing of the sale of the
Purchased Shares (the "Closing") shall take place at the offices of Xxxxx
Day, North Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 on the
earliest of (i) a date specified by Parent, which shall be after January 3,
2006 and no earlier than five business days after notice to the
Stockholders, (ii) the Effective Time, (iii) if the Merger Agreement is
terminated, the earlier of (A) a date specified by Parent, which shall be
no earlier than five business days after notice to the Stockholders, and
(B) 30 days following termination of the Merger Agreement or (iv) the
earlier of (A) July 15, 2006 and (B) 15 days after the outside termination
date in the Merger Agreement (the earlier of (A) and (B) is referred to
herein as the "Outside Date"), or at such other time and/or place as shall
be mutually agreed upon by Parent and the Stockholders. The date upon which
the Closing occurs is referred to herein as the "Closing Date.
Section 2.3. Conditions to the Closing.
(a) Parent. The obligation of Parent to purchase the Purchased
Shares at the Closing is subject to the satisfaction or waiver of each
of the following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of the Stockholders contained in
this Agreement shall be true and correct in all material respects
(disregarding for these purposes any materiality, material
adverse effect or corollary qualifications contained therein) on
and as of the date of this Agreement and on and as of the Closing
with the same effect as though made on and as of such date, and
the Stockholders shall have in all material respects performed
all obligations and complied with all agreements, undertakings,
covenants and conditions required under this Agreement to be
performed by the Stockholders at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Stock Certificates and Stock Powers. Parent shall have
received stock certificates representing the Purchased Shares
owned by the Stockholders with duly executed stock powers
attached for transfer to Parent.
(iv) Resignation of Directors. The members of Parent's board
of directors designated by the Stockholders pursuant to the
Certificate of Designations or otherwise shall have submitted
letters of resignation to Parent and the Parent board of
directors.
(v) Stockholders' Officer Certificates. Parent shall have
received a certificate from each Stockholder, in form and
substance reasonably satisfactory to Parent, dated as of the
Closing, duly executed by an authorized signatory of each such
Stockholder, certifying that the conditions set forth in Section
2.3(a)(i) and (ii) have been satisfied.
(b) The Stockholders. The obligation of each Stockholder to sell
the Purchased Shares at the Closing is subject to the satisfaction or
waiver of each of the following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of Parent contained in this
Agreement shall be true and correct in all material respects
(disregarding for these purposes any materiality, Material
Adverse Effect or corollary qualifications contained therein) on
and as of the date of this Agreement and on and as of the Closing
with the same effect as though made on and as of such date, and
Parent shall have in all material respects performed all
obligations and complied with all agreements, undertakings,
covenants and conditions required under this Agreement to be
performed by Parent at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Payment of the Specified Purchase Price. Such
Stockholder shall have received payment of the Specified Purchase
Price by bank wire transfer to an account or accounts designated
in writing for this purpose by such Stockholder to Parent at
least two business days prior to the Closing.
(iv) Parent's Officer Certificate. The Stockholders shall
have received a certificate from Parent, in form and substance
reasonably satisfactory to the Stockholders, dated as of the
Closing, duly executed by an authorized officer of Parent,
certifying that the conditions set forth in Section 2.3(b)(i) and
(ii) have been satisfied.
ARTICLE III
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 3.1. Disclosure. Each Stockholder hereby agrees to permit
Parent to publish and disclose in the Form S-4 and the Joint Proxy
Statement (including all documents and schedules filed with the SEC), and
any press release or other disclosure document that Parent determines to be
necessary or desirable in connection with the repurchase of the Purchased
Shares hereunder, the Merger and any transactions related thereto, such
Stockholder's identity and ownership of Parent Securities and the nature of
its representations, warranties and covenants in this Agreement. Parent
will provide the Stockholders with a copy of any proposed disclosure and
will provide the Stockholders with a reasonable opportunity to comment
thereon.
Section 3.2. Voting of Securities. During the period commencing on the
date hereof and continuing until the earliest of (a) the Effective Time,
(b) termination of the Merger Agreement in accordance with its terms and
(c) termination of this Agreement (the "Support Period"), at the Parent
Stockholders Meeting or at any adjournment, postponement or continuation
thereof or in any other circumstances (including any other annual or
special meeting of the stockholders of Parent, any action by prior written
consent or any separate class vote) in which a vote, consent or other
approval with respect to the issuance of shares of Parent Common Stock in
the Merger or otherwise in connection with the Merger, the Merger Agreement
or any of the transactions contemplated by the Merger Agreement, including
any separate class vote of any Securities, each Stockholder hereby
irrevocably and unconditionally agrees to vote or to cause to be voted (in
person, by proxy or otherwise) all of such Stockholder's Securities
entitled to vote thereon and held by such Stockholder at the time of such
vote (i) in favor of (A) the issuance of shares of Parent Common Stock in
the Merger and (B) if applicable, the Merger, the Merger Agreement or any
of the transactions contemplated by the Merger Agreement and (ii) against
(A) any other Acquisition Proposal (whether or not a Superior Proposal)
with respect to Parent, (B) any proposal for any merger, consolidation,
sale of assets, business combination, share exchange, reorganization or
recapitalization of Parent or any of its subsidiaries that is in
competition or inconsistent with the adoption of the Merger Agreement, or
any proposal to effect the foregoing that is made in opposition to or in
competition with the transactions contemplated by the Merger Agreement, (C)
any liquidation or winding up of Parent, (D) any extraordinary dividend by
Parent (other than the payment of any cash dividend that Parent is
expressly permitted to make under the Merger Agreement) and (E) any change
in the capital structure of Parent (other than any change in capital
structure resulting from the Merger or expressly permitted under the Merger
Agreement). Neither the foregoing agreements of the Stockholders to vote,
nor any such actual vote by the Stockholders, shall be or be deemed to be a
waiver of any rights the Stockholders have pursuant to the Purchase
Agreement or the Certificate of Designations nor shall any such vote or
agreement to vote constitute or be deemed to constitute any consent,
waiver, acknowledgement or agreement with respect to any of the matters
described in the second sentence of Section 6.1.
Section 3.3. Restriction on Transfer; Agreement Not to Convert. (a)
During the period commencing on the date hereof and continuing until the
first to occur of (i) the Closing and (ii) the termination of this
Agreement in accordance with its terms, each Stockholder agrees that it
will not, directly or indirectly, transfer, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the transfer of, any or all of the Securities, except as otherwise provided
in this Agreement or to Parent.
(b) During the period commencing on the date hereof and
continuing until the Closing or earlier termination of this Agreement
pursuant to Section 5.1, each Stockholder agrees that it will not
convert any shares of Preferred Stock into shares of Parent Common
Stock.
Section 3.4. No Solicitation. (a) Each Stockholder will not, and such
Stockholder will direct and use its reasonable best efforts to cause its
officers, directors, employees, investment bankers, consultants, attorneys,
accountants, agents and other representatives not to, directly or
indirectly, take any action to solicit, initiate or knowingly encourage or
facilitate the making of any Acquisition Proposal or any inquiry with
respect thereto or engage in discussions or negotiations with any Person
with respect thereto, or disclose any nonpublic information or afford
access to books or records to, any Person that has made, or to the
Stockholder's knowledge is considering making, any Acquisition Proposal, or
approve or recommend, or propose to approve or recommend, or execute or
enter into any letter of intent, agreement in principle, merger agreement,
option agreement, acquisition agreement or other similar agreement relating
to an Acquisition Proposal, or propose publicly or agree to do any of the
foregoing relating to an Acquisition Proposal.
(b) It is understood that any violation of the restrictions set
forth in this Section 3.4 by any officer, director, employee,
investment banker, consultant, attorney, accountant, agent or other
representative of such Stockholder, at the direction or with the
consent of such Stockholder, will be deemed to be a breach of this
Section 3.4 by such Stockholder.
(c) Nothing in this Agreement will be deemed to require any
Stockholder or representative of any Stockholder who is also a member
of Parent's board of directors to take any action or refrain from
taking any action in his or her capacity as a member of the board of
directors to the extent such action is permitted by Section 6.10 of
the Merger Agreement.
(d) The provisions of Sections 3.4(a), (b) and (c) will remain in
effect only during the Support Period and nothing herein will prevent
the Stockholders from participating in discussions, negotiations or
furnishing information with respect to an Acquisition Proposal if
Parent would be permitted to participate in such discussions,
negotiations or furnish such information pursuant to the terms and
conditions of the Merger Agreement.
(e) Notwithstanding the forgoing, nothing in this Agreement shall
prohibit Xxxxxxx, Xxxxx & Co. and its Affiliates (other than the
Stockholders) from engaging in any brokerage, investment advisory,
financial advisory, anti-raid advisory, merger advisory, financing,
asset management, trading, market making, arbitrage and/or other
activities conducted in the ordinary course of business.
Section 3.5. Stop Transfer; Legend. (a) Each Stockholder agrees with,
and covenants to, Parent that prior to the termination of this Agreement,
such Stockholder will not request that Parent register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Securities, unless such transfer is made in
compliance with this Agreement.
(b) In the event of a stock dividend or distribution, or any
change in Parent Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like (other than pursuant to the Merger), the terms "Parent Common
Stock" and "Securities" will be deemed to refer to and include the
shares of Parent Common Stock as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Securities may be changed or exchanged and appropriate adjustments
will be made to the terms and provisions of this Agreement.
(c) Each Stockholder agrees that it will promptly after the date
hereof surrender to Parent all certificates representing the Preferred
Stock and the Warrants, and Parent will place the following legend on
such certificates and the Warrants in addition to any other legend
required thereon:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A
STOCK PURCHASE AND SUPPORT AGREEMENT, DATED AS OF OCTOBER 3, 2005,
BY AND AMONG X.X. XXXXXXXXX CORPORATION AND CERTAIN STOCKHOLDERS OF
X.X. XXXXXXXXX CORPORATION SIGNATORY THERETO."
(d) Promptly (but in any event not later than five Business Days)
following the termination of this Agreement, if applicable, Parent
will issue replacement certificates or Warrants without the foregoing
legend to the relevant Stockholder.
(e) Promptly (but in any event not later than five Business Days)
following the Closing, Parent will issue replacement Warrants to the
Stockholders without the legend currently endorsed on the Warrants
with respect to the transfer conditions contained thereon.
Section 3.6. Waiver of Redemption of Preferred Stock. Prior to the
termination of this Agreement, Parent irrevocably and unconditionally
waives any right to call for a redemption of the Preferred Stock or to
deliver a redemption notice pursuant to Sections 5(a) and 6(a) of the
Certificate of Designations.
Section 3.7. Waiver and Modification of Rights Under Certificate of
Designations. Each of the Stockholders agrees and acknowledges that
dividends payable on the Preferred Stock pursuant to Section 3 of the
Certificate of Designations shall cease to accrue on and after October 1,
2005; provided, however, that if this Agreement is terminated, then
dividends shall be deemed to have accrued from and after September 30, 2005
through and including the effective date of such termination (the
"Termination Date") as currently provided in Section 3 of the Certificate
of Designations as if the parties hereto had not agreed to the waiver and
modifications set forth in this Section 3.7 and, thereafter, dividends
shall accrue on the Preferred Stock from and after the Termination Date as
currently provided in Section 3 of the Certificate of Designations as if
the parties hereto had not agreed to the waiver and modifications set forth
in this Section 3.7. The parties agree and acknowledge that any dividends
or other amounts payable on or with respect to the Preferred Stock for any
period subsequent to September 30, 2005 may, at Parent's election, be paid
in cash, or allowed to accrue pursuant to Section 3 of the Certificate of
Designations, provided that no such cash dividends may be paid by Parent
other than following termination of this Agreement. For the avoidance of
doubt, in the event this Agreement is terminated, with respect to any
period subsequent to September 30, 2005, in no event shall any Stockholder
be entitled to receive both (i) dividends on the Preferred Stock as
provided in Section 3 of the Certificate of Designations and (ii) any
additional amounts payable with respect to the Preferred Stock as
contemplated by (A) clause (ii) of the second sentence of Section 2.1 of
this Agreement and (B) the proviso to such sentence.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Parent. Parent
represents and warrants to, and agrees with, the Stockholders on the date
hereof and at and as of the Closing as follows:
(a) Organization; Authorization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority
to execute and deliver this Agreement and the Merger Agreement and
perform its obligations hereunder and thereunder. The execution and
delivery of this Agreement and the Merger Agreement and the
performance by Parent of its covenants and agreements under this
Agreement and the Merger Agreement have been duly and validly
authorized by the board of directors of Parent, and no other corporate
proceedings on the part of Parent (including, without limitation, any
stockholder vote or approval) are necessary to authorize the
execution, delivery and performance of this Agreement and the Merger
Agreement or the consummation of the transactions contemplated hereby
and thereby, except as contemplated by the Merger Agreement. This
Agreement and the Merger Agreement have been duly executed and
delivered by Parent and constitute the valid and binding agreement of
Parent, enforceable against Parent in accordance with their terms,
except that (i) such enforcement may be subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
laws, now or hereafter in effect relating to or limiting creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) No Conflicts. Neither the execution and delivery of this
Agreement or the Merger Agreement nor the consummation of the
transactions contemplated by this Agreement or the Merger Agreement
will (i) conflict with or result in any breach of any provision of the
incorporation documents or by-laws of Parent or any of its
subsidiaries (after giving effect to the transactions contemplated by
the Merger Agreement, including, without limitation, the amendment to
the by-laws contemplated thereby), (ii) require any filing with, or
the obtaining of any permit, authorization, consent or approval of,
any court, department, body, board, bureau, administrative agency or
commission or other governmental authority or instrumentality, whether
federal, state, local or foreign ("Governmental Entity"), (iii)
violate, conflict with or result in a default (or any event that, with
notice or lapse of time or both, would constitute a default) or
require any consent under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions or
provisions of any (A) note, mortgage, indenture, credit agreement,
other evidence of indebtedness or guarantee or (B) license, agreement,
lease or other contract, instrument or obligation, to which Parent or
any of its subsidiaries is a party or by which Parent or any of its
subsidiaries or any of their respective assets may be bound or (iv)
violate any order, injunction, decree, statute, law, rule or
regulation applicable to Parent or any of its subsidiaries, excluding
from the foregoing clauses (ii) and (iii) such requirements,
violations, conflicts, defaults or rights that would not, individually
or in the aggregate, constitute a Material Adverse Effect or with
respect to which consents or waivers are required to be obtained to
consummate the Merger and the transactions contemplated by the Merger
Agreement.
(c) Solvency. Parent is not, and after giving effect to any
financing obtained by Parent or its Affiliates in connection with the
consummation of the transactions contemplated by this Agreement or the
Merger Agreement (the "Financing"), the Merger and the transactions
contemplated by the Merger Agreement, and the purchase of the
Purchased Shares, will not be, insolvent within the meaning of Title
11 of the United States Code, the DGCL or the General Laws of the
State of New York.
(d) No Other Representation. Except for the representations of
Parent contained in this Agreement, Parent makes no other
representation or warranties, express or implied.
Section 4.2. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to, and agrees with, Parent on the date
hereof and at and as of the Closing as follows:
(a) Organization; Authorization. Such Stockholder is a limited
partnership duly organized and validly existing under the laws of the
state or country of its jurisdiction of formation. Such Stockholder
has the power and authority to execute and deliver this Agreement and
perform its obligations hereunder. The execution and delivery of this
Agreement and the performance by such Stockholder of its covenants and
agreements under this Agreement have been duly and validly authorized
by the general partner of such Stockholder, and no further proceedings
on the part of such Stockholder are necessary to authorize the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by such Stockholder and
constitutes, or as of the Closing will constitute, the valid and
binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except that (i) such
enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or
hereafter in effect, relating to or limiting creditors' rights
generally and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by
this Agreement will (i) conflict with or result in any breach of any
provision of the organization documents or by-laws of such
Stockholder, (ii) require any filing with, or the obtaining of any
permit, authorization, consent or approval of, any Governmental
Entity, (iii) violate, conflict with or result in a default (or any
event that, with notice or lapse of time or both, would constitute a
default) or require any consent under, or give rise to any right of
termination, cancellation or acceleration under, any of the terms,
conditions or provisions of any note, mortgage, indenture, other
evidence of indebtedness, guarantee, license, agreement, lease or
other contract, instrument or obligation to which such Stockholder is
a party or by which such Stockholder or any of its assets may be bound
or (iv) violate any order, injunction, decree, statute, law, rule or
regulation applicable to such Stockholder, excluding from the
foregoing clauses (ii) and (iii) such requirements, violations,
conflicts, defaults or rights that would not adversely affect the
ability of such Stockholder to consummate the transactions
contemplated by this Agreement.
(c) Purchased Shares and Interest. Such Stockholder is the sole
record and beneficial owner of the Preferred Stock owned by such
Stockholder as set forth opposite such Stockholder's name on Schedule
A attached hereto under the caption "Shares of Preferred Stock
Beneficially Owned" and has good and marketable title to such
Preferred Stock, free and clear of any Liens. No Stockholder owns any
shares of Preferred Stock or any other Securities of Parent except for
the Preferred Stock set forth on Schedule A and the Warrants.
(d) No Other Representation. Except for the representations of
such Stockholder contained in this Agreement, such Stockholder makes
no other representation or warranties, express or implied.
ARTICLE V
TERMINATION
Section 5.1. Termination. This Agreement may be terminated on or any
time prior to the Closing:
(a) by mutual written consent of each of the Stockholders and
Parent;
(b) by the Stockholders if the Closing shall not have occurred
prior to the Outside Date, unless the failure of such occurrence shall
be due to the failure by the Stockholders seeking to terminate this
Agreement to perform or observe any agreement set forth herein
required to be performed or observed by the Stockholders on or before
the Closing;
(c) by either Parent or the Stockholders if the other party
breaches any of its representations, warranties or covenants contained
in this Agreement in any material respect and such breach is not cured
within 10 days after receipt by the breaching party of written notice
of such breach from the non-breaching party; or
(d) by Parent or the Stockholders if a Governmental Entity shall
have issued a nonappealable final order, decree or ruling or taken any
other action having the effect of permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this
Agreement.
Section 5.2. Effect of Termination. In the event of the termination of
this Agreement as provided in Section 5.1, all obligations and agreements
of the parties set forth in this Agreement shall forthwith become void
except for Section 3.7, this Section 5.2 and Sections 6.2 - 6.15 (which, in
each case, shall remain in full force and effect) and there shall be no
liability or obligation on the part of the parties hereto except as
otherwise provided in this Agreement. Notwithstanding the foregoing, the
termination of this Agreement under Section 5.1 shall not relieve either
party of any liability for breach of this Agreement prior to the date of
termination.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Taking of Necessary Action; Consent and Waiver. Each of
the parties hereto shall use its reasonable best efforts promptly to take
or cause to be taken all action and promptly to do or cause to be done all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement, including, without limitation, in the case of Parent, (x) using
reasonable best efforts to cause the Merger to be successfully completed,
and for such purpose, at the reasonable request of the other party, will,
without further consideration, promptly execute and deliver, or cause to be
executed and delivered, to the other party such other instruments in
addition to those required by this Agreement, in form and substance
satisfactory to the other party and (y) taking all actions as may be
necessary to assure that Parent has adequate surplus available under
applicable law to consummate the transactions contemplated hereby,
including, without limitation, revaluing assets to the extent necessary.
Pursuant to Sections 4.04 and 8.02 of the Purchase Agreement and the
Certificate of Designations, the Stockholders hereby (a) consent to the
transactions contemplated by this Agreement and the Merger Agreement,
including, without limitation, (i) the Merger, (ii) the repurchase of the
Purchased Shares, (iii) the Financing, (iv) the amendment and restatement
of Parent's bylaws as contemplated by the Merger Agreement, (v) the
increase in size, and changes in composition, of Parent's board of
directors as contemplated by the Merger Agreement (which the Stockholders
agree and acknowledge that the election of such Persons to Parent's board
of directors shall satisfy any rights that the Stockholders have to
designate members of Parent's board of directors pursuant to the
Certificate of Designations or otherwise) and (vi) the amendment of the
Rights Agreement as contemplated by the Merger Agreement, (b) waive any
right of first refusal in connection with the issuance of shares of Parent
Common Stock in the Merger and (c) agree and acknowledge that (i) none of
the antidilution, price protection or other Conversion Price (as such term
is defined in the Certificate of Designations) adjustment provisions of
Section 9 of the Certificate of Designations shall apply in connection with
the Merger and the other transactions contemplated by the Merger Agreement,
including, without limitation, the issuance of shares of Parent Common
Stock in the Merger and (ii) the consummation of (A) the Merger and the
other transactions contemplated by the Merger Agreement shall not
constitute a "Change in Control" under the Certificate of Designations and
(B) the repurchase of the Purchased Shares by Parent pursuant to this
Agreement is in lieu of any rights that such Stockholder may have to
require Parent to redeem the Preferred Stock pursuant to the Certificate of
Designations or otherwise. Parent agrees and acknowledges that the
foregoing consents, waivers, agreements and acknowledgments by each
Stockholder are expressly conditioned on Parent's agreement to purchase the
Preferred Shares in accordance with the terms of this Agreement, and shall
be ineffective (and deemed not to have been given on the date hereof) if
Parent fails to consummate the purchase of the Preferred Shares at the
Closing.
Section 6.2. Expenses; Transfer Taxes. Each party hereto will bear the
legal, accounting and other expenses incurred by such party in connection
with the negotiation, preparation and execution of this Agreement and the
transactions contemplated hereby and thereby. All sales, transfer,
recordation and documentary taxes and fees that may be payable in
connection with the transactions contemplated by this Agreement will be
borne by Parent.
Section 6.3. Entire Agreement; Amendments; Waivers. This Agreement and
the agreements, certificates and documents referred to herein and therein
set forth the entire agreement between the parties hereto with respect to
the transactions contemplated by this Agreement. Any provision of this
Agreement may be amended or modified in whole or in part at any time by an
agreement in writing among the parties hereto executed in the same manner
as this Agreement. No failure on the part of any party to exercise, and no
delay in exercising, any right shall operate as a waiver thereof nor shall
any single or partial exercise by any party of any right preclude any other
or future exercise thereof or the exercise of any other right. No
investigation by the Stockholders or Parent prior to or after the date
hereof shall stop or prevent the Stockholders from exercising any right
hereunder or be deemed to be a waiver of any such right.
Section 6.4. Counterparts. This Agreement may be executed by facsimile
signature and may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same documents.
Section 6.5. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York
applicable to contracts made and to be performed in that State without
giving effect to any conflict of laws rules or principles that might
require the application of the laws of another jurisdiction.
Section 6.6. Public Announcements. Subject to Section 3.1 and except
with respect to the initial public announcement that Parent has entered
into the Merger Agreement and the transactions contemplated thereby,
including, without limitation, this Agreement, each of the parties hereto
agrees to hold in strict confidence and not to publicly disclose the status
of any discussions or relations between the parties with respect to the
subject matter of this Agreement, or any of the terms or conditions of this
Agreement, except to the extent that (i) the parties mutually agree to
publicly disclose such information or (ii) any party is legally required
(whether by federal securities laws, the rules of any stock exchange or
otherwise) to disclose such information; provided, however, that in each
case, the disclosing party shall consult with the non-disclosing party
prior to making any such disclosure and shall give the non-disclosing party
a reasonable opportunity to comment on the content of such disclosure.
Section 6.7. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if
delivered personally, by facsimile or sent by overnight courier as follows:
If to the Stockholders, to:
GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, X.X.
Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
Attention: Xxx Xxxxx, Esq.
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Shine, Esq.
If to Parent, to:
X.X. Xxxxxxxxx Corporation
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq
with a copy to (which shall not constitute notice):
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
Section 6.8. Successors and Assigns. The terms of this Agreement shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. Parent may not assign any of
its rights or delegate any of its duties under this Agreement without the
prior written consent of the Stockholders, provided that, after the
Closing, subject to applicable law, Parent may assign its rights under this
Agreement in whole or in part to any of its Affiliates, but no such
assignment shall relieve Parent of its obligations hereunder. No
Stockholder may assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of Parent. Any
purported assignment in violation of this Section 6.8 shall be void.
Section 6.9. Jurisdiction; Waiver of Jury Trial. The state and federal
courts located in the State of New York in New York County shall have
jurisdiction over the parties with respect to any dispute or controversy
between them arising under or in connection with this Agreement and, by
execution and delivery of this Agreement, each of the parties to this
Agreement submits to the jurisdiction of those courts, including but not
limited to the in personam and subject matter jurisdiction of those courts,
waives any objections to such jurisdiction on the grounds of venue or forum
non conveniens, the absence of in personam or subject matter jurisdiction
and any similar grounds, consents to service of process by mail (in
accordance with Section 6.7) or any other manner permitted by law, and
irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY
JURY, TO THE EXTENT LAWFUL, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF
THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY IN ANY DISPUTE WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.10. Captions; References. The captions contained in this
Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to Articles,
Sections, subsections or Schedules in this Agreement refer to the Articles,
Sections, subsections and clauses of, and the Schedules to, this Agreement.
Section 6.11. Schedules. The Schedules attached to this Agreement are
incorporated herein and will be part of this Agreement for all purposes.
Section 6.12. Third Parties. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any
Person other than Parent and the Stockholders and their respective
Affiliates any rights or remedies under or by reason of this Agreement and
no such other Person shall be a third party beneficiary of any of the
provisions hereof.
Section 6.13. Severability. Should any part of this Agreement for any
reason be declared invalid, such decision shall not affect the validity of
any remaining portion, which remaining portion shall remain in full force
and effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or parts which may, for
any reason, be hereafter declared invalid.
Section 6.14. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. If
any ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto,
and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of this
Agreement.
Section 6.15. Survival; Indemnification.
(a) Survival. Subject to Article V, the representations,
warranties, covenants and agreements of the parties hereto contained
in this Agreement shall survive the Closing. In the case of the
representations and warranties made by the Stockholders in this
Agreement, such representations and warranties are being made
severally and not jointly by such Stockholders.
(b) Indemnification by Parent. From and after the Closing, Parent
agrees to indemnify, defend and hold harmless the Stockholders, their
Affiliates, and their officers, directors, partners, employees,
agents, representatives, successors and any assigns of any of the
foregoing ("Stockholder Indemnitees") against all claims, losses,
liabilities, damages, interest and penalties, costs and expenses
(other than any of the foregoing resulting from tax liabilities
incurred by any of the Stockholders), including, without limitation,
losses resulting from the defense, settlement or compromise of a
claim, action, suit, investigation, subpoena or other compulsion of
testimony, or proceeding, reasonable attorneys', accountants' and
expert witnesses' fees, costs and expenses of investigation, and the
costs and expenses of enforcing the indemnification provided hereunder
incurred by any of the Stockholder Indemnitees arising out of or
relating to: (i) any breach of any representation or warranty made by
Parent in this Agreement, (ii) any breach of any covenant, agreement
or obligation of Parent contained in this Agreement or (iii) any
actual or threatened claim, litigation, action, suit, investigation or
proceeding by any Person (other than a Stockholder Indemnitee) in
connection with the (A) transactions contemplated hereby or by the
Merger Agreement, or by any documents executed in connection
therewith, or (B) negotiation, execution, delivery and performance of
this Agreement, the Merger Agreement or any documents executed in
connection therewith. Any payments made by Parent to a Stockholder
under this Section 6.15 shall be considered an increase to such
Stockholder's Specified Purchase Price.
(c) Indemnification by the Stockholders. From and after the
Closing, the Stockholders, severally in proportion to their respective
holdings of Preferred Stock, agree to indemnify, defend and hold
harmless Parent, its other Affiliates, and their officers, directors,
partners, employees, agents, representatives, successors and any
assigns of any of the foregoing ("Parent Indemnitees") against all
claims, losses, liabilities, damages, interest and penalties, costs
and expenses, including, without limitation, losses resulting from the
defense, settlement or compromise of a claim, action, suit,
investigation, subpoena or other compulsion of testimony, or
proceeding, reasonable attorneys', accountants' and expert witnesses'
fees, costs and expenses of investigation, and the costs and expenses
of enforcing the indemnification provided hereunder incurred by any of
the Parent Indemnitees arising out of or relating to: (i) any breach
of any representation or warranty made by the Stockholders in this
Agreement or (ii) any breach of any covenant, agreement or obligation
of the Stockholders contained in this Agreement.
Section 6.16. Termination of Purchase Agreement; No Further Rights.
Each of the Stockholders hereby acknowledges and agrees that immediately
following the Closing (a) the Purchase Agreement shall terminate and be
null and void and of no further force or effect without any further action
of the parties, (b) none of the Stockholders will have any further rights
to designate any directors of Parent or veto any corporate action as
provided in the Purchase Agreement or otherwise, (c) the Registration
Rights Agreement, dated November 25, 2002, among Parent and the
Stockholders shall terminate upon the Closing and be null and void and of
no further force or effect without any further action of the parties, and,
following the Closing, none of the Stockholders shall have any registration
rights with respect to any Securities of Parent, including, without
limitation, the Warrants or any shares of Parent Common Stock that may be
issued or issuable upon exercise of the Warrants (or issued or distributed
in respect of such shares of Parent Common Stock by way of stock dividend
or stock split or other distribution, recapitalization, reclassification,
merger, consolidation or otherwise), and (d) Parent may take such actions
as it deems necessary, desirable or appropriate following the Closing to
cancel or otherwise terminate the Certificate of Designations.
(Signatures are on the following pages.)
IN WITNESS WHEREOF, this Agreement has been executed by the respective
duly authorized officers of the parties hereto, all as of the date first
above written.
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and General Counsel
X.X. XXXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and General Counsel
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
XXXXXXX SACHS DIRECT INVESTMENT FUND
2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
SCHEDULE A
----------
STOCKHOLDERS
Shares of Preferred
Stock Beneficially
------------
Stockholder Owned
----------- -----
GS Capital Partners 2000, L.P. 55,313
GS Capital Partners 2000 20,098
Offshore, L.P.
GS Capital Partners 2000 GmbH & 2,311
Co. Beteiligungs KG
GS Capital Partners 2000 17,564
Employee Fund, X.X.
Xxxxxxx Xxxxx Direct Investment 5,015
Fund 2000, L.P.
