Exhibit (c)(9)
FORM OF
STOCK PURCHASE AND STOCKHOLDER AGREEMENT
THIS STOCK PURCHASE AND STOCKHOLDER AGREEMENT, dated as of July __,
1999 (this "Agreement"), is entered into by and between Ocean Group plc, a
company organized under the laws of England and Wales ("Ocean Group"), on the
one hand, and Xxxxx X. Xxxxxxx ("Stockholder"), on the other hand.
RECITALS
A. MSAS Global Logistics Inc., a New York corporation ("Parent"), MSAS
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
Parent ("Acquisition"), and Xxxx VII, Inc., a Delaware corporation (the
"Company"), have entered into an Agreement and Plan of Merger, dated as of July
27, 1999 (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which Acquisition will make a tender offer (the
"Offer") for all outstanding shares of common stock, $0.05 par value, of the
Company ("Company Common Stock") at an offer price of $23 per share, net to the
seller in cash and, after Acquisition has accepted tendered shares for payment
(the date on which such acceptance occurs, the "Acceptance Date"), the Company
and Acquisition will merge with the Company as the surviving corporation and
wholly-owned subsidiary of Parent (the "Merger"). The date of consummation of
the Merger will be referred to herein as the "Closing Date."
B. On July 27, 1999, Stockholder entered into a Tender and Voting
Agreement and Irrevocable Proxy (the "Voting Agreement") with Parent and
Acquisition.
C. In connection with the Voting Agreement and the terms of the Merger
Agreement, Stockholder (following the Acceptance Date or the Closing Date, as
applicable) will receive cash in exchange for (1) the tender/sale of all of the
shares of Company Common Stock beneficially owned by Stockholder (the "Old
Shares"), (2) the cancellation of all of Stockholder's outstanding options to
purchase shares of Company Common Stock (the "Options") and (3) the cancellation
of all of Stockholder's outstanding stock appreciation rights relating to shares
of Company Common Stock ("SARs"). The proceeds to be received by Stockholder,
net of any federal, state of local taxes payable with respect to such proceeds,
relating to the tender, sale or cancellation, as the case may be, of the Old
Shares, Options and SARs shall be referred to herein as the "Proceeds."
D. As an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. PURCHASE OF SHARES.
Immediately following consummation of the Merger, Stockholder
shall purchase from Ocean Group and Ocean Group shall sell to Stockholder the
number of ordinary shares of Ocean Group ("Ocean Group Shares") equal to the
quotient, rounded down to the nearest whole number, of (x) 0.10 multiplied by
the Proceeds and (y) the average closing price of an Ocean Group Share on the
London Stock Exchange for the last five trading days ending two days prior to
the Closing Date (such price to be referred to as the "Stock Price" and such
shares to be referred to herein as "Purchased Shares"). The total purchase price
for the Purchased Shares shall equal the Share Price multiplied by the number of
Purchased Shares and shall be promptly paid by Stockholder by check, banker's
draft or wire transfer to such account as Ocean Group may designate. Following
confirmation that Ocean Group has received cash funds representing the aggregate
purchase price for the Purchased Shares, a certificate or certificates
representing such shares registered in the name of Stockholder will be delivered
by Ocean Group to Stockholder. The parties to this Agreement agree to cooperate
to create and attach hereto as Schedule A, as soon as practicable following the
date hereof, a calculation of the Proceeds.
2. RESTRICTIONS ON TRANSFERS OF THE SHARES; LEGEND.
(a) Except as provided in Section 2(b) hereof, during the
period beginning on the Closing Date of the Merger and ending on the fourth
anniversary of the Closing Date (such period, the "Restricted Period"),
Stockholder shall not sell, assign, pledge, hypothecate or otherwise encumber or
dispose of any Purchased Shares, whether directly or indirectly, whether
voluntary or involuntary and whether for consideration or without consideration
(each, a "Transfer"), other than pursuant to a Family Transfer. For purposes of
this Agreement, "Family Transfer" means a transfer by gift or testamentary
disposition to one or more members of Stockholder's Immediate Family, to a trust
solely for the benefit of the Stockholder and/or his or her Immediate Family or
to a partnership or limited liability company the partners or shareholders of
which are limited to the Stockholder and his or her Immediate Family (provided
all such transferees remain subject to this Agreement) and "Immediate Family"
means Stockholder's spouse, children or grandchildren (including adopted and
stepchildren and grandchildren).
(b) During the Restricted Period, Stockholder may Transfer the
Purchased Shares in accordance with the following schedule:
(i) if the Company meets or exceeds the fiscal
year 1999 performance targets, as set forth
on Schedule B attached hereto, Stockholder
may Transfer up to 25% of the Purchased
Shares following the date the board of
directors of the Company determines whether
such targets have been met or exceeded;
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(ii) if the Company meets or exceeds the fiscal
year 2000 performance targets, as set forth
on Schedule B attached hereto, Stockholder
may Transfer up to an additional 25% of the
Purchased Shares following the date the
board of directors of the Company determines
whether such targets have been met or
exceeded;
(iii) if the Company meets or exceeds the fiscal
year 2001 performance targets, as set forth
on Schedule B attached hereto, Stockholder
may Transfer up to an additional 25% of the
Purchased Shares following the date the
board of directors of the Company determines
whether such targets have been met or
exceeded; and
(iv) if the Company meets or exceeds the fiscal
year 2002 performance targets, as set forth
on Schedule B attached hereto, Stockholder
may Transfer up to an additional 25% of the
Purchased Shares following the date the
board of directors of the Company determines
whether such targets have been met or
exceeded.
If, for any fiscal year set forth in Schedule B, the Company's
cumulative results for that and the preceding fiscal years covered by this
Agreement (as specified in Schedule B) equals or exceeds the cumulative
performance target amounts set forth in Schedule B with respect to such fiscal
year, Stockholder may Transfer a number of Purchased Shares equal to the number
of Purchased Shares Stockholder would have been permitted to Transfer had the
Company achieved its performance targets for that and each of the preceding
fiscal years covered by this Agreement. Ocean Group will use its best efforts to
cause the board of directors of the Company to determine whether the performance
targets have been met or exceeded as soon as commercially reasonable following
the end of each fiscal year covered by this Agreement. The parties to this
Agreement agree to cooperate to create and attach hereto Schedule B, as soon as
practicable following the date hereof. In addition, if Stockholder's employment
with the Company (or any successor thereto) terminates for any reason, the
Restricted Period and the Transfer restrictions set forth in Section 2(a) hereof
shall immediately terminate and lapse and be of no further force and effect.
(c) All certificates representing the Purchased Shares shall,
in addition to other legends that may be required by applicable law, bear the
following legend, unless otherwise determined by counsel to Ocean Group:
"THE SALE AND TRANSFERABILITY OF THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS AS SET FORTH IN A STOCK PURCHASE AND STOCKHOLDERS
AGREEMENT BETWEEN THE ORIGINAL PURCHASER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE AND THE CORPORATION (THE "SHAREHOLDERS AGREEMENT").
ANY ATTEMPTED SALE OR TRANSFER OF THESE SECURITIES WHICH DOES NOT
COMPLY APPLICABLE PROVISIONS OF THE SHAREHOLDERS AGREEMENT SHALL BE
VOID.
3. REPRESENTATIONS AND ACKNOWLEDGMENTS OF STOCKHOLDER.
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(a) Stockholder hereby represents and warrants to Ocean
Group as follows:
(i) The Purchased Shares will be acquired for
investment for Stockholder's own account, not as a nominee or
agent, and not with a view to the resale or distribution of
any part thereof. Stockholder has no present intention of
selling, granting any participation in, or otherwise
distributing the same. Stockholder does not have any contract,
undertaking, agreement or arrangement with any person to sell,
Transfer or grant participation to such person or any third
person with respect to any of the Purchased Shares.
(ii) Stockholder has received all the information he
considers necessary or appropriate for deciding whether to
acquire the Purchased Shares. Stockholder has had an
opportunity to ask questions and receive answers from Ocean
Group regarding Ocean Group and the terms and conditions of
this Agreement.
(iii) Stockholder is able to bear the economic risk
of this investment and is capable of evaluating the merits and
risks of this investment. Stockholder understands that
Stockholder's interest in Ocean Group may be subject to
dilution based on additional share issuances.
(iv) Stockholder has full power and authority to
enter into this Agreement and to perform his or her
obligations hereunder and to consummate the transactions
contemplated herein. This Agreement is a valid and binding
agreement of Stockholder, enforceable against him or her in
accordance with its terms.
(b) Stockholder hereby acknowledges that the Purchased Shares
are being issued to Stockholder without registration or other qualification
under any applicable securities law, and that Stockholder cannot Transfer any
Shares except in full compliance with all applicable laws, including securities
laws and as otherwise limited hereby.
4. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) CERTAIN EVENTS. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Purchased Shares and shall be
binding upon any person to which legal or beneficial ownership of the Purchased
Shares shall pass, whether by operation of law or otherwise. Notwithstanding any
transfer of Purchased Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
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(c) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by operation of law or
otherwise without the prior written consent of the other party.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be made in accordance with the notice provisions
set forth in the Voting Agreement.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or portion
of any provision in such jurisdiction, and this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement shall cause the other party to sustain damage for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
(h) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(i) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(j) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement and shall
become effective when one or more of the counterparts have been signed by each
of the parties and delivered to the other parties.
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IN WITNESS WHEREOF, Ocean Group and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
OCEAN GROUP PLC,
an England and Wales company
By:
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Name: Xxxx X. Xxxxx
Title: Chief Executive
XXXXX X. XXXXXXX
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[SIGNATURE PAGE FOR OCEAN GROUP/STOCKHOLDER STOCK PURCHASE AND STOCKHOLDER
AGREEMENT]
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