STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of January 12, 2001
between Heartland Industrial Partners, L.P (the "New Investor") and each of
Blackstone Capital Company II, L.L.C., Blackstone Capital Partners, L.P.,
Blackstone Advisory Directors Partnership, L.P., Blackstone Family Investment
Partnership I L.P. (collectively "Blackstone") and Xxxxxxxxxxx/C&A Holdings,
L.L.C. ("Xxxxxxxxxxx", and together with Blackstone, "Sellers").
RECITALS
WHEREAS, the New Investor desires to purchase from Sellers, and Sellers
desire to sell to the New Investor, 27,000,000 shares ("Shares") of Common
Stock, par value $.01 per share (the "Common Stock") of Xxxxxxx & Xxxxxx
Corporation (the "Company").
WHEREAS, in connection with the transactions contemplated by this
Agreement, the New Investor, Sellers and the Company will enter into a
Stockholders' Agreement (the "Stockholders' Agreement") and a Registration
Rights Agreement (the "Registration Rights Agreement") to provide for certain
matters relating to the respective holdings by the New Investor and Sellers of
the Common Stock.
WHEREAS, simultaneously with the execution of this Agreement, the New
Investor and the Company are entering into a purchase agreement (the "Primary
Share Purchase Agreement") pursuant to which the New Investor will purchase
shares of capital stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and the representations
and warranties contained in this Agreement, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1. Purchase and Sale of the Shares. On the terms and subject to
the conditions of this Agreement, Sellers shall sell, transfer and deliver to
the New Investor, and the New Investor shall purchase from Sellers, the Shares
free and clear of all Liens (as defined) in exchange for (a) immediately
available funds in an amount equal to $135,000,000 (the "Initial Purchase
Price"), allocated among Sellers, as set forth in Annex A to be provided prior
to the Closing and (b) a participating interest in profits realized on each of
the Shares by
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the New Investor on the terms and conditions set forth in the Profit
Participation Agreement (the "Contingent Payment", and together with the Initial
Purchase Price, the "Purchase Price").
SECTION 1.2. Closing. The closing (the "Closing") of the purchase and sale
of the Shares shall be held at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx within
3 business days of satisfaction of the conditions set forth in Article 4 or at a
date and time to be mutually agreed upon by the parties (the "Closing Date"). At
the Closing, (i) the New Investor shall deliver to Sellers, by wire transfer to
a bank account designated in writing by Sellers, immediately available funds in
an amount equal to the Initial Purchase Price in such amounts that correspond to
the allocation among Sellers as set forth in Annex A and (ii) Sellers shall
deliver to the New Investor certificates representing the Shares duly endorsed
in blank or accompanied by stock powers duly endorsed in blank in proper form
for transfer, with appropriate transfer stamps, if any, affixed.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, severally and not jointly, hereby represents and warrants to
the New Investor as follows:
SECTION 2.1. Authority. Each Seller is a limited liability company duly
organized and validly existing under the jurisdiction of its organization. Each
Seller has all requisite corporate power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
All limited liability company acts and other proceedings required to be taken by
each Seller to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and properly taken. This Agreement has been duly executed and delivered by
each Seller and constitutes a legal, valid and binding obligation of each
Seller, enforceable against each Seller in accordance with its terms.
SECTION 2.2. The Shares. Each Seller has good and valid title to the Shares
that it is transferring hereunder, free and clear of any liens, claims,
encumbrances, security interests, options, pre-emptive, drag-along or tag-along
rights, rights of first refusal or first offer, charges or restrictions of any
kind (collectively, "Liens"), except for such restrictions set forth in a
stockholders' agreement dated June 29, 1994 to which the Sellers, the Company
and their affiliates are a party, certain restrictions imposed by the Sellers'
financing of the purchase of the Common Stock and restrictions imposed by United
States Securities laws. Assuming the
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New Investor has the requisite power and authority to be the lawful owner of the
Shares, upon delivery to the New Investor at the Closing of certificates
representing the Shares, duly endorsed by Sellers to the New Investor for
transfer pursuant to Section 1.1 and upon Sellers' receipt of the Purchase
Price, good and valid title to the Shares will pass to the New Investor, free
and clear of any Liens, except for Liens arising from acts of the New Investor.
SECTION 2.3. Governmental Authorization. The execution, delivery and
performance by Sellers of this Agreement requires no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except where the failure to obtain
any such order, license, consent, authorization, approval or exemption or give
any such notice or make any filing or registration would not reasonably be
expected to adversely affect the ability of Sellers to perform their obligations
hereunder.
SECTION 2.4. Noncontravention. The execution, delivery and performance by
Sellers of this Agreement do not and will not (i) violate the governing
documents of either Seller, (ii) violate any law, rule, regulation, judgment,
injunction, order or decree applicable to or binding upon a Seller, (iii)
require any consent or other action by any person under, constitute a default
under (with due notice or lapse of time or both), or give rise to any right of
termination, cancellation or acceleration of any right or obligation of a Seller
or to a loss of any benefit to which a Seller is entitled under any provision of
any agreement or other instrument binding upon a Seller or any of its assets or
properties or (iv) result in the creation or imposition of any material Lien on
any property or asset of a Seller.
SECTION 2.5. Litigation. There is no action, suit, investigation or
proceeding pending against or, to the knowledge of Sellers, threatened against
or affecting either Seller before any court or arbitrator or any governmental
body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement.
SECTION 2.6. No Brokers. No Seller has entered into any agreement or
understanding with any person or firm or the Company which may result in the
obligation of the Company to pay any finder's fee, commission or other like
payment in connection with this Agreement and the transactions contemplated
hereby.
SECTION 2.7 No Other Representations. Except for the representations and
warranties set forth above, no Seller is making any representation or warranty,
including any representation or warranty as to the Company or its prospects.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE NEW INVESTOR
The New Investor hereby represents and warrants to Sellers as follows:
SECTION 3.1. Authority. The New Investor is a limited partnership duly
organized and validly existing under the jurisdiction of its formation. The New
Investor has all requisite power and authority to execute, deliver and perform
this Agreement and the other Secondary Transaction Documents (as defined below),
and to consummate the transactions contemplated hereby. All acts and other
proceedings required to be taken by the New Investor to authorize the execution,
delivery and performance of this Agreement and the other Secondary Transaction
Documents, and the consummation of the transactions contemplated hereby have
been duly and properly taken. This Agreement and the other Secondary Transaction
Documents have been duly executed and delivered by the New Investor and
constitute a legal, valid and binding obligation of the New Investor,
enforceable against the New Investor in accordance with its terms. For purposes
of this Agreement, "Secondary Transaction Documents" means each of the
Stockholders' Agreement, the Registration Rights Agreement and the Primary Share
Purchase Agreement.
SECTION 3.2. Governmental Authorization. The execution, delivery and
performance by the New Investor of this Agreement requires no order, license,
consent, authorization or approval of, or exemption by, or action by or in
respect of, or notice to, or filing or registration with, any governmental body,
agency or official except (i) such as have been obtained, (ii) compliance with
any applicable requirements of the HSR Act and any other applicable antitrust
laws, and (iii) where the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or make any filing
or registration would not reasonably be expected to adversely affect the ability
of the New Investor to perform its obligations hereunder.
SECTION 3.3. Noncontravention. The execution, delivery and performance by
the New Investor of this Agreement does not and will not (i) violate the
partnership agreement or other similar corporate documentation of the New
Investor, (ii) violate any law, rule, regulation, judgment, injunction, order or
decree applicable to or binding upon the New Investor, (iii) require any consent
or other action by any person under, constitute a default under (with due notice
or lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of the New Investor or
to a loss of any benefit to which the New Investor is entitled under any
provision of any agreement or other instrument binding upon the New Investor or
any of its assets or properties or (iv) result in the creation or imposition of
any material Lien on any property or asset of the New Investor.
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SECTION 3.4. Securities Act. The Shares purchased by the New Investor
pursuant to this Agreement are being acquired for investment only and not with a
view to any public distribution thereof, and the New Investor will not offer to
sell or otherwise dispose of the Shares so acquired by it in violation of any
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder.
(a) The New Investor understands that the Shares have not been registered
under the Securities Act. The New Investor also understands that the Shares are
being sold pursuant to an exemption from registration contained in the
Securities Act based in part upon representations of the New Investor contained
in this Agreement.
(b) The New Investor understands that it must bear the economic risk of the
investment in the Shares indefinitely unless the Shares are registered pursuant
to the Securities Act, or an exemption from registration is available.
(c) The New Investor is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(d) The New Investor acknowledges that the Shares will be legended to
reflect the foregoing.
SECTION 3.5. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of the New Investor, threatened
against or affecting the New Investor before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement.
SECTION 3.6. Financial Capability. The New Investor has the funds available
to consummate the purchase of the Shares.
SECTION 3.7. No Other Representations. Except for the representations and
warranties set forth above, the New Investor is not making any other
representation or warranty.
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ARTICLE IV
CONDITIONS TO CLOSING
SECTION 4.1. Conditions to Obligations of the New Investor and Sellers. The
obligations of the New Investor and Sellers to consummate the transactions
contemplated hereby are subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of
competent jurisdiction shall prohibit the consummation of the transactions
contemplated hereby;
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing (including HSR clearance) shall have been
taken, made or obtained;
(c) Each of the material certificates and instruments and other
material third party consents (other than consents from the Company's
financing sources), in form and substance reasonably satisfactory to the
New Investor, required for the consummation of the purchase by the New
Investor shall have been received;
(d) The Stockholders' Agreement and the Registration Rights Agreement,
substantially in the forms attached hereto as Exhibits A and B shall have
been executed by each of the parties thereto with such changes as may be
reasonably required by co-investors with the New Investor that are not
adverse to the Sellers in any respect;
(e) Each of the Indenture Parties shall have entered into a second
supplemental indenture to the Indenture providing for the Indenture
Amendments. By the terms of such second supplemental indenture, the
Indenture Amendments shall become effective without any further action by
any person upon the Closing Date. The Indenture Amendments shall have been
irrevocably consented to by the requisite Holders (as defined under the
Indenture) of Notes for the second supplemental indenture containing the
Indenture Amendments to be entered into by the Indenture Parties and to
become effective in accordance with their terms under Article IX of the
Indenture. The form and substance of the second supplemental indenture,
insofar as the Indenture Amendments and any other changes required by the
Holders are concerned, shall be in a form and substance reasonably
satisfactory to the New Investor. The Consent Costs incurred in connection
with obtaining the Indenture Amendments, shall be reasonably acceptable to
the New Investor based upon the estimates of the likely Consent Costs
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provided to the New Investor prior to the date hereof by the financial
advisors to the New Investor and the financial advisors to the Sellers and
the Company; and
(f) Each of the Credit Agreement Parties shall have entered into an
amendment and waiver to the Credit Agreement, in form in substance
reasonably satisfactory to the New Investor, providing for the Bank
Amendments. By the terms of such amendment and waiver, the Bank Amendments
shall become effective without any further action by any person upon the
Closing Date. The amendment and waiver shall have been irrevocably
consented to by the requisite lenders under the Credit Agreement for it to
become effective in accordance with its terms and the provisions of the
Credit Agreement. The Consent Costs incurred in connection with obtaining
the Bank Amendments, shall be reasonably acceptable to the New Investor
based upon the estimates of the likely Consent Costs provided prior to the
date hereof by the financial advisors to the New Investor and the financial
advisors to the Sellers and the Company. In addition, the New Investor
shall be satisfied that the effect of the Bank Amendments will be to modify
the documentation relating to the Master Equipment Lease Agreement, dated
as of September 30, 1994 and the receivables financing initially entered
into in December 1999, including, without limitation, the Receivables
Agreement and related documentation, to ensure that no default or no
"Termination Event" or "Potential Termination Event" will arise as a result
of the transactions contemplated hereby and by the Primary Share Purchase
Agreement.
For purposes of Sections 4. 1 (e) and (f):
"Bank Amendments" means (1) the waiver of any event of default caused
by or resulting from the transactions contemplated hereby or by the Primary
Share Purchase Agreement, including, without limitation, any event of
default arising from a change of control, (2) the amendment of the
definitions of "Change in Control" and "Designated Person" in the Credit
Agreement, the Receivables Agreement (as defined in the Primary Share
Purchase Agreement) and the Master Lease Agreement (as defined in the
Primary Share Purchase Agreement) to provide for the control and beneficial
ownership of capital stock by the New Investor and its affiliates
contemplated to occur as a result of the transactions contemplated hereby
and by the Primary Share Purchase Agreement without any breach or default
thereunder and (3) such other changes as may be requested by the New
Investor that are reasonably acceptable to the Credit Agreement Parties
(excluding the Company and its affiliates).
"Consent Costs" means the direct and indirect financial cost (whether
through the payment of consent, waiver or other fees, the reimbursement of
out-of-pocket costs and expenses of any person or any change in financial
terms of the Indenture or the Credit Agreement, as applicable) to the New
Investor or its affiliates or the Company
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or any of its subsidiaries incurred or payable in connection with obtaining
requisite approval of the Indenture Amendments and the Bank Amendments, as
applicable; provided that Consent Costs shall not include (1) the
reasonable fees and expenses of any dealer manager/solicitation agent for
the consent solicitation in respect of the Indenture Amendments, (2)
reimbursements of the reasonable out-of-pocket expenses of the Credit
Agreement Parties (other than the Company and its affiliates) payable
pursuant to the terms of the Credit Agreement, as in effect on the date
hereof, (3) the reimbursement of the reasonable out-of-pocket expenses of
the Trustee incurred in connection with the Indenture Amendments, (4) the
payment of reasonable fees and expenses of the New Investor in connection
with the transactions contemplated hereby or by the Primary Share Purchase
Agreement and (5) the payment of reasonable fees and expenses for counsel
to the Company, the Special Committee of the Company and Sellers in
connection with the transactions contemplated hereby or by the Primary
Share Purchase Agreement.
"Credit Agreement" means the Credit Agreement dated as of May 28, 1998
among the Credit Agreement Parties, as amended and modified by the waivers
and amendments thereto dated as of October 27, 1998, December 22, 1998,
March 8, 1999 and May 12,1999.
"Credit Agreement Parties" means collectively (1) Xxxxxxx & Xxxxxx
Products Co., Xxxxxxx & Xxxxxx Canada Inc., Xxxxxxx & Xxxxxx Plastics,
Ltd., as Borrowers, (2) the Company as Guarantor, (3) Bank of America
National Trust and Savings Association, as Documentation Agent, (4) The
Chase Manhattan Bank, as Administrative Agent, and The Chase Manhattan
Bank, as Canadian Administrative Agent, and (5) the Lenders (as defined
under the Credit Agreement) necessary for the Bank Amendments to be
approved and effective under the terms of the Credit Agreement.
"Indenture" means the Indenture dated as of June 1, 1996, as amended
by the first supplemental indenture thereto dated as of June 1, 1996 (the
"First Supplemental Indenture"), among the Indenture Parties.
"Indenture Amendments" means an amendment to change the definition of
"Permitted Holder" in Section 5.14 of the First Supplemental Indenture to
add the New Investor and its affiliates and such related changes so that
the transactions contemplated hereby and by the Primary Share Purchase
Agreement do not cause a "change in control" under such First Supplemental
Indenture.
"Indenture Parties" means collectively Xxxxxxx & Xxxxxx Products Co.,
as Issuer, the Company, as Guarantor, and First Union National Bank of
North Carolina, as Trustees.
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SECTION 4.2. Conditions to Obligations of the New Investor. The obligation
of the New Investor to consummate the transactions contemplated hereby is
subject to the satisfaction of the following further conditions:
(a) Sellers shall have performed in all material respects all of their
obligations hereunder required to be performed by it on or prior to the
Closing Date;
(b) The representations and warranties of Sellers contained in this
Agreement shall be true in all material respects when made and at and as of
the Closing Date, as if made at and as of such date;
(c) The sale of shares contemplated by the Primary Share Purchase
Agreement, in the form attached hereto as Exhibit C, shall be consummated
simultaneous with the Closing of the sale of the Shares;
(d) The Company's Board of Directors shall have approved the purchase
of the shares of Common Stock by the New Investor such that Section 203 of
the Delaware General Corporation Law shall not apply to the acquisition of
shares by the New Investor;
(e) The proxy statement of the Company in connection with the
Shareholder Matters (as defined in the Primary Share Purchase Agreement)
shall have been prepared and filed with the Securities and Exchange
Commission. Each Seller shall have delivered to the Company an executed
irrevocable proxy in favor of the actions contemplated by the Shareholder
Matters as contemplated in Section 5.4 herein;
(f) Each of the Existing Investor Agreements (as defined below) shall
have been canceled without payment by or obligation of the Company, and
otherwise pursuant to documentation in form and substance reasonably
satisfactory to the New Investor;
(g) The Company shall have entered into a monitoring fee agreement in
form and substance satisfactory to the New Investor providing for the
payment to the New Investor of an annual monitoring fee of $4,000,000;
(h) Four designees of the Sellers shall have resigned and the four
designees of the New Investor shall have been appointed to the Board of
Directors of the Company;
(i) The Sellers shall have entered into an agreement in the form
reasonably satisfactory to the Sellers and Purchaser providing for the
resignation of an additional director who was previously appointed by the
Sellers in the event (i) the Charter Amendment Effective Date (as defined
in the Primary Share Purchase Agreement) has
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not occurred within 45 days of the Closing Date and (ii) the New Investor
does not already have a majority of the Company's Board of Directors.
For purposes of Section 4.2(f), "Existing Investor Agreements" means (i)
the Amended and Restated Stockholders' Agreement dated as of June 29, 1994,
among Blackstone Capital Partners L.P., Xxxxxxxxxxx Xxxxxxx Partners, L.P., the
Company and Xxxxxxx & Xxxxxx Group, Inc., (ii) the Voting Agreement, dated as of
June 29, 1994 among Blackstone Capital Partners L.P. and Xxxxxxxxxxx Xxxxxxx
Partners, L.P., and (iii) the Monitoring Fee Agreements entered into among the
Sellers and the Company.
SECTION 4.3. Conditions to Obligation of Sellers. The obligation of Sellers
to consummate the transactions contemplated hereby is subject to the
satisfaction of the following further conditions:
(a) The New Investor shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to
the Closing Date; and
(b) The representations and warranties of the New Investor contained
in this Agreement shall be true in all material respects when made and at
and as of the Closing Date, as if made at and as of such date.
ARTICLE V
COVENANTS OF SELLERS AND THE NEW INVESTOR
SECTION 5.1. Further Assurances. Sellers and the New Investor agree that,
from time to time, whether on or after the Closing Date, each of them will
execute and deliver such further instruments of conveyance and transfer and take
such other actions as may be necessary to carry out the purposes and intents of
this Agreement.
SECTION 5.2. No Inconsistent Action; Certain Actions. Subject to Sections
7.1 and 7.2, Sellers and the New Investor shall not take any action inconsistent
with their obligations under this Agreement or which could materially hinder or
delay the consummation of the transactions contemplated by this Agreement and
agree to use its best efforts to consummate the transactions contemplated by
this Agreement and the transactions contemplated by the Primary Share Purchase
Agreement. The New Investor agrees that it will not consummate the transactions
contemplated by the Primary Share Purchase Agreement unless the sale of Shares
contemplated by this Agreement is consummated concurrently.
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SECTION 5.3. Regulatory Filings. The New Investor agrees to promptly, but
in no event later than 10 days from the date of this Agreement, to make any
required regulatory filings, including any required Xxxx-Xxxxx-Xxxxxx filings
and to use its best efforts to obtain any required clearance as promptly as
practicable.
SECTION 5.4. Stockholder Action. Upon the written request of the New
Investor, at any time after the date of this Agreement and for so long as this
Agreement is in effect, Sellers shall execute an irrevocable proxy such that the
Shares will be voted in favor of the Shareholder Matters (as defined in the
Primary Share Purchase Agreement).
SECTION 5.5. Board Representation. Each of Blackstone and Xxxxxxxxxxx shall
cause two of its representatives on the Company board of directors to resign
immediately prior to the Closing.
SECTION 5.6. No Solicitation. Each Seller agrees that it will not, directly
or indirectly through any officer, subsidiary, affiliate, director, employee,
stockholder, representative, agent or other person (other than the Company or a
director of the Company whose actions shall be governed by the Primary Share
Purchase Agreement), (i) seek, initiate, solicit or encourage any Person to make
an Acquisition Proposal, (ii) engage in negotiations or discussions concerning
any Acquisition Proposal with any person or group, (iii) disclose any non-public
information relating to the Company or give access to the properties, employees,
books or records of the Company or any of its subsidiaries to any person or
group in connection with any Acquisition Proposal or (iv) approve or recommend
or agree to approve or recommend any Acquisition Proposal.
(a) Each Seller shall notify the New Investor in writing no later than the
end of the next business day after receipt thereof of the receipt by it of any
Acquisition Proposal (including a copy thereof if in writing), the terms and
conditions of such Acquisition Proposal and the identity of the person making
it. Each Seller also shall promptly notify the New Investor no later than the
end of the next Business Day of any change to or modification of such
Acquisition Proposal.
(b) Each Seller shall, and shall cause its Affiliates and the advisors,
employees and other agents of such Seller and any of its Affiliates to, cease
immediately and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any Third Party conducted prior to the
date hereof with respect to any Acquisition Proposal and shall use reasonable
best efforts to cause any such party (or its agents or advisors) in possession
of confidential information about the Company that was furnished by or on behalf
of the Sellers to return or destroy all such information.
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"Acquisition Proposal" means any offer or proposal for, or any indication
of interest in, (i) any acquisition or purchase of 10% or more of the
consolidated assets of the Company and its Subsidiaries, (ii) any acquisition or
purchase of an equity interest in the Company representing in excess of 10% of
the power to vote for the election of a majority of the directors of the
Company, or any tender offer or exchange offer for equity securities of the
Company as a result of which the offer or would hold such an equity interest in
the Company, (iii) any merger, consolidation, business combination, sale of
substantially all assets, recapitalization, liquidation, dissolution or similar
transaction involving the Company, or any of its Subsidiaries, whose assets,
individually or in the aggregate, constitute more than 10% of the consolidated
assets of the Company and its Subsidiaries, or (iv) any acquisition or purchase
of the Shares in each case other than the transactions contemplated by this
Agreement.
"Third Party" means any Person as defined in Section 13(d) of the 1934 Act,
other than the New Investor or any of its Affiliates.
SECTION 5.7. Debt Consents. Sellers shall cooperate and shall cause the
Company to cooperate in seeking such modifications to the "change of control"
provisions of the Credit Agreement and the Indenture so that the sale of Shares
contemplated by this Agreement and the Primary Share Purchase Agreement may be
consummated without violating the terms of the governing documents for such debt
facilities.
ARTICLE VI
NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Survival. The representations, warranties and covenants in
this Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Closing for the statute of limitations period relating to such
representations, warranties or covenants.
ARTICLE VII
TERMINATION
SECTION 7.1. Grounds for Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written agreement of Sellers and the New Investor;
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(b) by Sellers, on the one hand, or the New Investor, on the other
hand, if the Closing shall not have been consummated as of the close of
business on May 31, 2001;
(c) by Sellers, on the one hand, or the New Investor, on the other
hand, if consummation of the transactions contemplated hereby would violate
any non-appealable final order, decree or judgment of any court or
governmental body having competent jurisdiction; or
(d) by the New Investor or the Sellers, if the Primary Share Purchase
Agreement is terminated pursuant to its terms.
The party desiring to terminate this Agreement pursuant to clauses 7. 1
(b), (c) or (d) shall promptly give notice of such termination to the other
party.
SECTION 7.2. Effect of Termination. If this Agreement is terminated as
permitted by Section 7.1, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, member, director,
officer, employee, agent, consultant or representative of such party) to the
other party to this Agreement except as provided below, and this Agreement shall
become void and of no further force or effect; provided that such termination
shall not affect a party's ability to bring an action for breach of this
Agreement. Notwithstanding the foregoing, the provisions of Sections 8.2, 8.5,
8.6 and 8.7 shall survive any termination hereof pursuant to Section 7. 1.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by prepaid telex, cable or telecopy or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service and
shall be deemed given when so delivered by hand, telexed, cabled or telecopied,
or if mailed, three business days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
if to the New Investor,
Heartland Industrial Partners, L.P.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
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Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to Sellers,
Blackstone Capital Partners L.P.
000 Xxxx Xxxxxx-- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000; and
Xxxxxxxxxxx Xxxxxxx Management Partners
1301 Avenue of the Americas -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X'Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
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SECTION 8.2. Expenses. Whether or not the transactions contemplated hereby
are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs or expenses.
SECTION 8.3. Amendments and Waivers. Any provision of this Agreement maybe
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement, or in the
case of a waiver, by the party against whom the waiver is to be effective.
(a) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.4. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto; except that the New Investor may
assign its rights under this Agreement without the consent of any other party so
long as (i) the New Investor is not relieved of its obligations hereunder and
(ii) upon the purchase of the Shares under this Agreement and the Primary Share
Purchase Agreement, Heartland and its affiliates will beneficially own a
majority of the shares of Common Stock of the Company (assuming conversion of
the convertible preferred shares).
SECTION 8.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 8.6. Jurisdiction. The parties hereto agree that any suit, action
or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on
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such party as provided in Section 8.1 shall be deemed effective service of
process on such party.
SECTION 8.7. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.8. Counterparts; Third Party Beneficiaries. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any person other than the parties
hereto any rights or remedies hereunder, except that the Company shall have the
right to enforce the provisions of Section 5.2 with respect to each party's duty
to use its "best efforts" to consummate the transactions contemplated hereby and
in the Primary Share Purchase Agreement.
SECTION 8.9. Entire Agreement. This Agreement, together with the
Stockholders' Agreement, constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
SECTION 8.10. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 8.11. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be deemed to
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
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IN WITNESS WHEREOF, each of the parties has duly executed this Agreement or
caused it to be duly executed as of the date first written above.
BLACKSTONE CAPITAL PARTNERSHIP, L.P.
By: Blackstone Management Associates L.P.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxx
Authorized Signatory
BLACKSTONE ADVISORY DIRECTORS
PARTNERSHIP L.P.
By: Blackstone Management Associates L.P.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxx
Authorized Signatory
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP I L.P.
By: Blackstone Management Associates I L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxx
Authorized Signatory
BLACKSTONE CAPITAL COMPANY II, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxx
Authorized Signatory
XXXXXXXXXXX/C&A HOLDINGS, L.L.C.
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By: /s/ Xxxxxxx X. X'Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx
Title: Member
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
HEARTLAND INDUSTRIAL ASSOCIATES, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
Annex A
Entity Shares Sold $5 per Share Sale
Price
Xxxxxxxxxxx/C&A Holdings L.L.C. 13,337,264 $66,686,320
Blackstone Capital Company II, L.L.C. 2,303,169 $11,515,845
Blackstone Family Investment Partnership L.P. 554,963 $2,774,815
Blackstone Advisory Directors Partnership L.P. 48,778 $243,890
Blackstone Capital Partners L.P 10,755,826 $53,779,130
Total 27,000,000 $135,000,000
