MANAGEMENT SUBSCRIPTION AND STOCK PURCHASE AGREEMENT
This
Management Subscription and Stock Purchase Agreement (the “Agreement”)
is entered into as of the 1st day of December, 2006, by and between Xxxxxxx
Company, a Delaware corporation (the “Company”),
and Xxxx X. Xxxxxxxx (“Xxxxxxxx”).
WHEREAS,
the Company believes it to be in the best interests of the Company and its
shareholders to take action to promote work-force stability, to reward
performance and otherwise align employee interests with those of the Company;
and
WHEREAS,
the Xxxxxxxx wish to purchase from the Company, and the Company wishes to issue
and sell to Xxxxxxxx shares of the Company’s class A common stock, par value
$0.01 per share (“Class
A Common Stock”).
NOW,
THEREFORE,
in consideration of the mutual promises, representations, warranties, covenants
and conditions set forth in this Agreement, the parties to this Agreement,
intending to be legally bound, mutually agree as follows:
ARTICLE
I
Purchase
and Sale of Shares
1.1 Sale
and Issuance of Shares.
Subject to the terms and conditions of this Agreement, Xxxxxxxx does hereby
subscribe for and agree to purchase at the Closing (as defined below), and
the
Company does hereby agree to sell to Xxxxxxxx at the Closing, 4,195.33 shares
of
Class A Common Stock (collectively, the “Shares”)
for the total purchase price of $250,000 (the “Purchase
Price”).
1.2 Closing.
The issuance, sale and purchase of the shares of Class A Common Stock hereunder
shall occur at 10:00 a.m. EDT on the date hereof (the “Closing”).
Payment of the Purchase Price shall be made to the Company or its designees
at
the Closing by delivery of a wire transfer of same day funds denominated in
U.S.
dollars, unless otherwise mutually agreed in writing with the
Company.
1.3 Assurances.
Each of the parties hereto agrees to use all commercially reasonable efforts
to
bring about the fulfillment of the conditions precedent contained in this
Agreement.
ARTICLE
II
Representations
and Warranties of the Company
The
Company represents and warrants to Xxxxxxxx that:
2.1 Organization
and Standing.
The Company 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 carry on its business as now conducted and as proposed
to
be conducted.
2.2 Authorization.
All corporate action on the part of the Company necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, and for
the authorization, issuance and delivery of the Shares being sold under this
Agreement, has been taken. This Agreement, when executed and delivered by all
parties hereto, shall constitute the valid and legally binding obligation of
the
Company, except to the extent the enforceability thereof may be limited by
bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or other
laws affecting creditors’ rights generally or by general equitable
principles.
2.3 Validity
of Shares.
The Shares, when issued, sold and delivered in accordance with the terms of
this
Agreement, shall be duly and validly issued, and fully paid and
nonassessable.
2.4 Securities
Act.
The sale of Shares in accordance with the terms of this Agreement (assuming
the
accuracy of the representations and warranties of Xxxxxxxx contained in
Article III hereof) is exempt from the registration requirements of the
Securities Act of 1933, as amended (the “1933
Act”).
ARTICLE
III
Representations,
Warranties and Agreements of Xxxxxxxx
3.1 Authorization.
Xxxxxxxx represents and warrants that this Agreement, when executed and
delivered by him, will constitute his valid and legally binding obligation,
except to the extent the enforceability thereof may be limited by bankruptcy
laws, insolvency laws, reorganization laws, moratorium laws or other laws
affecting creditors’ rights generally or by general equitable
principles.
3.2 Investment
Representations.
(a) This
Agreement is made with Xxxxxxxx in reliance upon his representation to the
Company, which by his acceptance hereof, Xxxxxxxx hereby confirms, that
(i) the Shares to be received by him will be acquired by him for investment
for his own account, not as a nominee or agent, and not with a view to the
sale
or distribution of any part thereof in violation of applicable federal and
state
securities laws, (ii) he has no current intention of selling, granting
participation in or otherwise distributing the same in violation of applicable
federal and state securities laws, and (iii) his address is as set forth
below. By executing this Agreement, Xxxxxxxx further represents that he does
not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person, or to any third person,
with respect to any of the Shares in violation of applicable federal and state
securities laws.
(b) Xxxxxxxx
understands that the Shares have not been registered under the 1933 Act on
the
basis that the sale provided for in this Agreement and the issuance of
securities hereunder is exempt from registration under the 1933 Act pursuant
to
Section 4(2) thereof and regulations issued thereunder, and that the Company’s
reliance on such exemption is predicated on representations of Xxxxxxxx set
forth herein.
(c) Xxxxxxxx
represents that he is an “Accredited Investor” (as such term is defined under
Regulation D of the 0000 Xxx) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of his investment. Xxxxxxxx further represents that he or she has had
access, during the course of the transactions contemplated hereby and prior
to
his purchase of Shares, to the same kind of information that is specified in
Part I of a registration statement under the 1933 Act and that he has had,
during the course of the transactions contemplated hereby and prior to his
purchase of the Shares, the opportunity to ask questions of, and receive answers
from, the Company concerning the terms and conditions of the offering and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to him or to
which
he had access. Xxxxxxxx understands that no federal or state agency has passed
upon this investment or upon the Company, nor has any such agency made any
finding or determination as to the fairness of this investment.
(d) Xxxxxxxx
understands that the Shares may not be sold, transferred or otherwise disposed
of without registration under the 1933 Act or an exemption therefrom, and that
in the absence of an effective registration statement covering the Shares or
an
available exemption from registration under the 1933 Act, the Shares must be
held indefinitely. Xxxxxxxx must be prepared to bear the economic risk of this
investment for an indefinite period of time. In particular, Xxxxxxxx
acknowledges that he is aware that the Shares may not be sold pursuant to Rule
144 promulgated under the 1933 Act unless all of the conditions of that Rule
are
met. Among the current conditions for use of Rule 144 by certain holders is
the
availability to the public of current information about the Company. Such
information is not now available, and the Company has no current plans to make
such information available. Xxxxxxxx represents that, in the absence of an
effective registration statement covering the Shares, he will sell, transfer
or
otherwise dispose of the Shares only in a manner consistent with his
representations set forth herein and then only in accordance with the
Securityholders’ Agreement referred to in Article VI.
(e) Independent
of the additional restrictions on the transfer of shares of Class A Common
Stock
contained in the Securityholders’ Agreement referred to in Article VI,
Xxxxxxxx agrees that he will not make a transfer, disposition or pledge of
any
of the Shares other than pursuant to an effective registration statement under
the 1933 Act, unless and until (i) he shall have notified the Company of
the proposed disposition and shall have furnished the Company with a statement
of the circumstances surrounding the disposition, and (ii) if requested by
the Company, at the expense of Xxxxxxxx or his transferee, he or she shall
have
furnished to the Company an opinion of counsel, reasonably satisfactory to
the
Company and its counsel, to the effect that such transfer may be made without
registration of the Shares under the 1933 Act.
(f) Xxxxxxxx
acknowledges that this investment is not recommended for investors who have
any
need for a current return on this investment or who cannot bear the risk of
losing their entire investment. Xxxxxxxx acknowledges that: (i) he has
adequate means of providing for his current needs and possible personal
contingencies and has no need for liquidity in this investment; (ii) his
commitment to investments which are not readily marketable is not
disproportionate to his net worth; and (iii) his investment in the Shares
will not cause his overall financial commitments to become
excessive.
3.3 Legends;
Stop Transfer.
(a) Xxxxxxxx
acknowledges that all certificates evidencing the Shares shall bear the
following legend:
“TRANSFER
RESTRICTED
The
securities represented by this Certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, offered for sale,
pledged or hypothecated in the absence of an effective registration statement
as
to the securities under said Act or an opinion of counsel satisfactory to the
Company and its counsel that such registration is not required.”
(b) The
certificates evidencing the Shares shall also bear any legend
required
by
any applicable state securities law and the Securityholders’
Agreement.
(c) The
Company shall make a notation regarding the restrictions on transfer of the
Shares in its stock books, and the Shares shall be transferred on the books
of
the Company only if transferred or sold pursuant to an effective registration
statement under the 1933 Act covering such Shares or pursuant to and in
compliance with the provisions of Section 3.2(e) hereof. All shares of Class
A
Common Stock hereafter issued to Xxxxxxxx shall bear the same endorsement,
and
shall be subject to all the terms and conditions of this Agreement. A copy
of
this Agreement, together with any amendments thereto, shall remain on file
with
the Secretary of the Company and shall be available for inspection to any
properly interested person without charge within five (5) days after the receipt
of a written request therefor by the Company.
ARTICLE
IV
Conditions
to Obligations of Xxxxxxxx at Closing
The
obligations of Xxxxxxxx under Article I of this Agreement are subject to
the fulfillment on or before the Closing of each of the following
conditions:
4.1 Representations
and Warranties.
The representations and warranties of the Company contained in Article II hereof
shall be true on and as of the Closing with the same force and effect as if
they
had been made at the Closing.
4.2 Performance.
The Company shall have performed and complied with all agreements and conditions
contained in this Agreement required to be performed or complied with by it
on
or before the Closing.
4.3 Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority
or regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Shares pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of
the
Closing.
ARTICLE
V
Conditions
to the Obligations of the Company at Closing
The
obligations of the Company under Article I of this Agreement are subject to
the
fulfillment on or before the Closing of each of the following
conditions:
5.1 Representations.
The representations, warranties and agreements of Xxxxxxxx contained in
Article III hereof shall be true on and as of the Closing Date with the
same force and effect as if they had been made at the Closing.
5.2 Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority
or regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Shares pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of
the
Closing.
5.3 Performance.
Xxxxxxxx shall have performed in all material respects all of his obligations
and materially complied with each and all of his covenants required to be
performed or complied with on or prior to the Closing, including without
limitation the execution and delivery of the agreements and undertakings
provided for in this Agreement.
ARTICLE
VI
Mutual
Conditions Precedent
The
obligations of the Company and Xxxxxxxx under Article I of this Agreement
are subject to the fulfillment on or before the Closing of the following
condition:
6.1 Securityholders’
Agreement and Registration Rights Agreement.
The Company and Xxxxxxxx shall have executed and delivered a counterpart
signature page to that certain Securityholders’ Agreement and that certain
Registration Rights Agreement by and among the Company and the other parties
thereto, so that Xxxxxxxx shall be entitled to the rights and subject to the
obligations of a “Senior Manager” thereunder as of the date hereof.
ARTICLE
VII
Miscellaneous
7.1 No
Waiver; Modifications in Writing.
This Agreement sets forth the entire understanding of the parties, and
supersedes all prior agreements, arrangements and communications, whether oral
or written, with respect to the subject matter hereof. No waiver of or consent
to any departure from any provision of this Agreement shall be effective unless
signed in writing by the party entitled to the benefit thereof, provided that
notice of any such waiver shall be given to each party hereto as set forth
below. Except as otherwise provided herein, no amendment, modification or
termination of any provision of this Agreement shall be effective against the
Company or Xxxxxxxx unless signed in writing by or on behalf of the Company
and
Xxxxxxxx. Any amendment, supplement or modification of or to any provision
of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Company from the terms of any provision of this
Agreement, shall be effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is specifically required
by
this Agreement, no notice to or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances.
7.2 Notices.
All notices and other communications necessary or contemplated under this
Agreement shall be in writing and shall be delivered in the manner specified
herein or, in the absence of such specification, shall be deemed to have been
duly given when delivered by hand, one day after sending by overnight delivery
service, or three days after sending by certified mail, postage prepaid, return
receipt requested to the respective addresses of the parties set forth
below:
If
to Xxxxxxxx: Xxxx
X. Xxxxxxxx
000
Xxxxx Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
If
to the Company: Xxxxxxx
Company
Xxx
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Financial Officer and General Counsel
With
a copy to: Xxxxxx
X. Xxx Partners, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxx
By
notice complying with the foregoing provisions of this Section 7.2, each party
shall have the right to change the mailing address for future notices and
communications to such party.
7.3 Costs,
Expenses and Taxes.
The Company and Xxxxxxxx shall pay their own costs and expenses incurred in
connection with this Agreement, the Securityholders’ Agreement and the
Registration Rights Agreement, any amendment or supplement to or modification
of
any of the foregoing, and any and all other documents furnished pursuant hereto
or thereto or in connection herewith or therewith. The Company shall pay any
and
all stamp, transfer and other similar taxes payable or determined to be payable
in connection with the execution and delivery of this Agreement or the original
issuance of the Shares but excluding all federal, state and local income or
similar taxes and shall save and hold Xxxxxxxx harmless from and against any
and
all liabilities with respect to or resulting from any delay in paying, or
omission to pay, such taxes.
7.4 Execution
of Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
Agreement.
7.5 Binding
Effect; Assignment.
The rights and obligations of Xxxxxxxx under this Agreement may not be assigned
to any other person. Except as expressly provided in this Agreement, this
Agreement shall not be construed so as to confer any right or benefit upon
any
person other than the parties to this Agreement, and their respective successors
and assigns. This Agreement shall be binding upon the Company and Xxxxxxxx,
and
their respective successors and assigns.
7.6 Governing
Law.
This Agreement shall be governed by the laws of the State of Delaware as to
all
matters, including but not limited to matters of validity, construction, effect,
performance and remedies.
7.7 Severability
of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
7.8 Exhibits
and Headings.
All Exhibits to this Agreement shall be deemed to be a part of this Agreement.
The Article and Section headings used or contained in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
7.9 Injunctive
Relief.
Each of the parties to this Agreement hereby acknowledges that in the event
of a
breach by any of them of any material provision of this Agreement, the aggrieved
party may be without an adequate remedy at law. Each of the parties therefore
agrees that, in the event of a breach of any provision of this Agreement, the
aggrieved party may elect to institute and prosecute proceedings to enforce
specific performance or to enjoin the continuing breach of such provision,
as
well as to obtain damages for breach of this Agreement. By seeking or obtaining
any such relief, the aggrieved party will not be precluded from seeking or
obtaining any other relief to which it may be entitled.
7.10 Survival
of Agreements, Representations and Warranties.
All agreements, representations and warranties contained herein or made in
writing by or on behalf of the Company or Xxxxxxxx, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the sale and purchase of the
Shares and payment therefor.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be
executed
as an instrument under seal, as of the date first above written.
XXXXXXX
COMPANY
By: /s/Xxxxxxx
X. Xxxxxxxxx
_____________________________
Xxxxxxx
X. Xxxxxxxxx
Executive
Vice President and Chief Financial Officer
/s/
Xxxx X.
Xxxxxxxx
_______________________________
Xxxx
X. Xxxxxxxx
