First Amendment to Securities Purchase Agreement
Exhibit 10.3
Execution Version
This First Amendment (this “Amendment”) to the Purchase Agreement (as defined below),
is entered into as of August 4, 2011, by and among Harbinger Group Inc., Delaware corporation (the
“Company”), Quantum Partners LP (the “Xxxxx Purchaser”), DDJ High Yield Fund, an
entity organized under the laws of the Province of Ontario, Canada, General Motors Hourly-Rate
Employes Pension Trust — 7N1H, a trust maintained by General Motors Corporation, a Delaware
corporation, General Motors Salaried Employes Pension Trust — 7N1I, a trust maintained by General
Motors Corporation, Stichting Pensioenfonds Hoogovens, a Dutch pension plan regulated by the Dutch
Central Bank, Caterpillar Inc. Master Retirement Trust, a trust maintained by Caterpillar, Inc., a
Delaware corporation, X.X. Penney Corporation, Inc. Pension Plan Trust, a trust maintained by X.X.
Xxxxxx Corporation, Inc., a Delaware corporation, Stichting Bewaarder Interpolis Pensioenen Global
High Yield Pool, a Dutch tax transparent pool of assets, Stichting Pensioenfonds voor
Fysiotherapeuten, a Dutch pension plan regulated by the Dutch Central Bank, Houston Municipal
Employees Pension System, a pension plan organized pursuant to Texas government code, UAW Retiree
Medical Benefits Trust, a trust consisting of three separate employees’ beneficiary associations,
DDJ Distressed and Special Situations Fund, L.P., a Delaware limited partnership, Xxxxxxx
Investment Company — Xxxxxxx Global Opportunistic Credit Fund, a Massachusetts business trust, DDJ
Capital Management Group Trust — High Yield Investment Fund, a trust maintained by The Bank of New
York Mellon, a New York State chartered bank, as trustee (collectively, the “DDJ
Purchasers”), JHL Capital Group Master Fund L.P. (the “JHL Purchaser”), Luxor Capital
Partners, LP, a Delaware limited partnership, Luxor Wavefront, LP, a Delaware limited partnership,
Luxor Capital Partners Offshore Fund, LP, a Cayman Islands limited partnership, OC 19 Master Fund,
L.P. — LCG, a Cayman Islands limited partnership, and GAM Equity Six Inc., a British Virgin Islands
company (collectively, the “Luxor Purchasers”). Capitalized terms used in this Amendment
and not otherwise defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
WHEREAS, the parties hereto (other than the Luxor Purchasers) entered into that certain
Securities Purchase Agreement, dated as of August 1, 2011 (the “Purchase Agreement”); and
WHEREAS, in order for the Luxor Purchasers to be joined as Purchasers under the Purchase
Agreement, the parties hereto wish to amend certain provisions of the Purchase Agreement and agree
that all other terms and conditions of the Purchase Agreement otherwise remain unchanged except as
expressly set forth herein.
NOW THEREFORE, the Purchase Agreement is amended as follows:
1. The third recital in the Purchase Agreement is hereby amended and restated in their
entirety as follows:
WHEREAS, the Company has authorized the issuance and sale of 120,000 shares
of Series A-2 Participating Convertible Preferred Stock, par value $0.01 per
share, of the Company (the “Convertible Preferred Stock”), the rights,
preferences and privileges of which are to be set forth in a Certificate of
Designation, in the form attached hereto as Exhibit A (the “Certificate
of Designation”), which shares of Convertible Preferred Stock shall be
convertible into authorized but unissued shares of Common Stock (as defined
below);
2. The following definitions set forth in Section 1 of the Purchase Agreement are hereby
amended and restated in their entirety as follows:
“Purchasers” means, collectively, the Xxxxx Purchaser, the DDJ Purchasers,
the JHL Purchaser and the Luxor Purchasers.
3. Section 1 of the Purchase Agreement is hereby amended to add the following definition:
“Luxor Purchasers” shall mean, collectively, Luxor Capital Partners, LP, a Delaware
limited partnership, Luxor Wavefront, LP, a Delaware limited partnership, Luxor Capital
Partners Offshore Fund, LP, a Cayman Islands limited partnership, OC 19 Master Fund, L.P. -
LCG, a Cayman Islands limited partnership, and GAM Equity Six Inc., a British Virgin Islands
company.
4. Section 5.11 of the Purchase Agreement is hereby deleted in its entirety and replaced with
a reference to “[Reserved.]”
5. New subsection (e) is hereby added to Section 12.3 of the Purchase Agreement as follows:
(e) if to the Luxor Purchasers, to:
Luxor Capital Group, LP
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Operations Group
Fax: (000) 000-0000
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Operations Group
Fax: (000) 000-0000
6. Annex A of the Purchase Agreement is hereby amended and restated in its entirety as set
forth on Exhibit A hereto.
7. Each of the Luxor Purchasers agrees that upon execution of this Amendment, such Luxor
Purchaser shall become a party to the Purchase Agreement and shall be fully bound by, and subject
to, all of the representations, warranties, covenants, terms and conditions of the Purchase
Agreement as though an original party thereto and shall be deemed a Purchaser for all purposes
thereof and entitled to all the rights incidental thereto.
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8. Except as expressly amended herein, all provisions of the Purchase Agreement shall remain
in full force and effect.
9. This Amendment shall be governed by and construed in accordance with the laws of the State
of New York, regardless of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
10. This Amendment may be signed in any number of counterparts each of which shall be an
original and all of which shall together constitute one and the same agreement. Any counterpart or
other signature hereupon delivered by facsimile shall be deemed for all purposes as constituting
good and valid execution and delivery of this Amendment by such party.
[Signature Pages Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.
| COMPANY: HARBINGER GROUP INC. |
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| By: | /s/ Xxxxxxx X. XxXxxxxx | |||
| Name: | Xxxxxxx X. XxXxxxxx | |||
| Title: | Executive Vice President & Chief Financial Officer | |||
[Signature Page to First Amendment to the Purchase Agreement]
| QUANTUM PARTNERS LP By: QP GP LLC, its General Partner |
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| By: | /s/ Xxx X. Xxxxxxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxxxxxx | |||
| Title: | Attorney-in-Fact | |||
[Signature Page to First Amendment to the Purchase Agreement]
| JHL CAPITAL GROUP MASTER FUND L.P. |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Managing Member JHL Capital Group LLC |
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[Signature Page to First Amendment to the Purchase Agreement]
Caterpillar Inc. Master Retirement Trust By: DDJ Capital Management, LLC, on behalf of Caterpillar Inc. Master Retirement Trust, in its capacity as investment manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| DDJ Capital Management Group Trust — High Yield Investment Fund By: DDJ Capital Management, LLC, in its capacity as Investment Manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| DDJ High Yield Fund By: DDJ Capital Management, LLC, its attorney-in-fact |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
[Signature Page to First Amendment to the Purchase Agreement]
| General Motors Hourly-Rate Employes Pension Trust — 7N1H By: State Street Bank and Trust Company, solely in its capacity as Trustee for General Motors Hourly-Rate Employes Pension Trust (Account 7N1H), and not in its individual capacity, as directed by DDJ Capital Management, LLC, as Investment Manager |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Client Services Officer State Street Bank and Trust Company | |||
| General Motors Salaried Employes Pension Trust — 7N1I By: State Street Bank and Trust Company, solely in its capacity as Trustee for General Motors Salaried Employes Pension Trust (Account 7N1I), and not in its individual capacity, as directed by DDJ Capital Management, LLC, as Investment Manager |
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| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Client Services Officer State Street
Bank and Trust Company |
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| Houston Municipal Employees Pension System By: DDJ Capital Management, LLC, in its capacity as Manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
[Signature Page to First Amendment to the Purchase Agreement]
| X.X. Penney Corporation, Inc. Pension Plan Trust By: DDJ Capital Management, LLC, on behalf of X.X. Xxxxxx Corporation, Inc. Pension Plan Trust, in its capacity as investment manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| Xxxxxxx Investment Company — Xxxxxxx Global Opportunistic Credit Fund By: DDJ Capital Management, LLC, in its capacity as Money Manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| Stichting Bewaarder Interpolis Pensioenen Global High Yield Pool By: Syntrus Achmea Asset Management, as asset manager By: DDJ Capital Management, LLC, as subadviser |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| Stichting Pensioenfonds Hoogovens By: DDJ Capital Management, LLC, on behalf of Stichting Pensioenfonds Hoogovens, in its capacity as Manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
[Signature Page to First Amendment to the Purchase Agreement]
| Stichting Pensioenfonds voor Fysiotherapeuten By: DDJ Capital Management, LLC, in its capacity as investment manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| UAW Retiree Medical Benefits Trust By: State Street Bank and Trust company, solely in its capacity as Trustee for UAW Retiree Medical Benefits Trust, as directed by DDJ Capital Management, LLC, and not in its individual capacity |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| DDJ Distressed and Special Situations Fund, L.P. By: DDJ/GP Distressed and Special Situations, LLC, its General Partner By: DDJ Capital Management, LLC, Manager |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
[Signature Page to First Amendment to the Purchase Agreement]
| LUXOR CAPITAL PARTNERS, LP |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | General Counsel | |||
| LUXOR CAPITAL PARTNERS OFFSHORE MASTER FUND, LP |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | General Counsel | |||
| LUXOR WAVEFRONT, LP |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | General Counsel | |||
| GAM EQUITY SIX INC. |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | General Counsel | |||
| OC 19 MASTER FUND, L.P. — LCG |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | General Counsel | |||
[Signature Page to First Amendment to the Purchase Agreement]
Exhibit A
Annex A
Shares and Purchasers
| Purchaser | Shares | Share Purchase Price | ||||||
Luxor Capital Partners, LP |
14,384 | $ | 14,384,000.00 | |||||
Luxor Capital Partners Offshore Master Fund, LP |
22,263 | $ | 22,263,000.00 | |||||
Luxor Wavefront, LP |
5,159 | $ | 5,159,000.00 | |||||
OC 19 Master Fund, LP |
1,603 | $ | 1,603,000.00 | |||||
GAM Equity Six, Inc.: |
1,591 | $ | 1,591,000.00 | |||||
Quantum Partners LP |
25,000 | $ | 25,000,000.00 | |||||
DDJ High Yield Fund |
250 | $ | 250,000.00 | |||||
General Motors Hourly-Rate Employes Pension Trust — 7N1H |
3,750 | $ | 3,750,000.00 | |||||
General Motors Salaried Employes Pension Trust — 7N1I |
2,000 | $ | 2,000,000.00 | |||||
Stichting Pensioenfonds Hoogovens |
1,250 | $ | 1,250,000.00 | |||||
Caterpillar Inc. Master Retirement Trust |
2,500 | $ | 2,500,000.00 | |||||
| Purchaser | Shares | Share Purchase Xxxxx | ||||||
X.X. Penney Corporation, Inc. Pension Plan Trust |
3,000 | $ | 3,000,000.00 | |||||
Stichting Bewaarder Interpolis Pensioenen Global High Yield Pool |
3,250 | $ | 3,250,000.00 | |||||
Stichting Pensioenfonds voor Fysiotherapeuten |
1,000 | $ | 1,000,000.00 | |||||
Houston Municipal Employees Pension System |
1,000 | $ | 1,000,000.00 | |||||
UAW Retiree Medical Benefits Trust |
3,750 | $ | 3,750,000.00 | |||||
DDJ Distressed and Special Situations Fund, L.P. |
1,000 | $ | 1,000,000.00 | |||||
Xxxxxxx Investment Company — Xxxxxxx Global Opportunistic Credit Fund |
2,000 | $ | 2,000,000.00 | |||||
DDJ Capital Management Group Trust — High Yield Investment Fund |
250 | $ | 250,000.00 | |||||
JHL Capital Group Master Fund L.P. |
25,000 | $ | 25,000,000.00 | |||||
TOTAL: |
120,000 | $ | 120,000,000.00 | |||||
