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EXHIBIT 10.38
EXECUTION COPY
PUT RIGHTS AGREEMENT
THIS PUT RIGHTS AGREEMENT (this "AGREEMENT"), dated as of September 9,
1997, is made and entered into by and among XXXXX/XXXXXX, INC., a Texas
corporation (the "COMPANY"), and GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY,
LIFE INVESTORS INSURANCE COMPANY OF AMERICA and NATIONWIDE LIFE INSURANCE
COMPANY (each a "PURCHASER" and collectively the "PURCHASERS"). Capitalized
terms used and not elsewhere defined in this Agreement shall have the
respective meanings assigned to them in Section 3 of this Agreement.
1. Background. The Company and the Purchasers have entered into that
certain Note and Warrant Purchase Agreement (the "PURCHASE AGREEMENT"), dated
as of September 8, 1997, pursuant to which the Company has agreed, among other
things, to issue and sell its Common Stock Purchase Warrants expiring August 9,
2004 (the "WARRANTS"), evidencing rights to purchase an aggregate of 3,050,847
shares (subject to adjustment as provided therein) of the Company's Common
Stock, no par value per share (the "COMMON STOCK"). This agreement shall become
effective upon the issuance of such Warrants.
2. Put Rights.
2.1 Grant of Put Rights. The Company hereby grants to each
holder of Put Securities the right and option (as to each such holder, its "PUT
RIGHT" and, as to all such holders collectively, the "PUT RIGHTS"), to require
the Company to purchase all or any portion of the Put Securities held by such
holder upon the exercise by such holder of its Put Right in accordance with the
provisions of this Agreement.
2.2 Time of Exercise. The Put Right of any holder of Put
Securities may be exercised at any time during the 45-day period following the
delivery to such holder (pursuant to the terms of the Purchase Agreement)
during the Exercise Period of (i) the Company's annual audited financial
statements for any fiscal year or (ii) the Company's unaudited financial
statements for any second fiscal quarter.
2.3 Manner of Exercise. A holder of Put Securities may
exercise such holder's Put Right with respect to all or any portion of the Put
Securities by delivering written notice thereof (a "PUT NOTICE") to the
Company. Such Put Notice shall specify (i) the number and type of Put
Securities to be purchased from such holder by the Company and (ii) a date,
which shall be no later than 90 days after the date of the Put Notice, upon
which the Company is to purchase such Put Securities (the "PROPOSED PUT CLOSING
DATE"). If the Proposed Put Closing Date is not specified in the Put Notice,
the Proposed Put Closing Date shall be the 90th day after the date of the Put
Notice.
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2.4 Determination of Put Price. The purchase price of the Put
Securities specified in the Put Notice (the "PUT PRICE") will be the Market
Value of such Put Securities, as determined by an independent investment bank,
or accounting firm or other organization which is recognized for, and
experienced in, valuing insurance agencies and brokers and similar financial
services firms (the "INDEPENDENT EVALUATOR"), and which is, in any case,
selected and mutually agreed upon by the Required Holder(s) and the Company
(collectively, the "INTERESTED PARTIES"). In the event the Required Holder(s)
or the Company propose an Independent Evaluator and the Interested Parties
cannot agree on that or any other proposed Independent Evaluator within 30
days, the Required Holder(s) and the Company shall each hire an Independent
Evaluator within 15 days thereafter. The cost of such Independent Evaluators
shall be borne by the Company. The determination of the Market Value of such
Put Securities by the Independent Evaluator shall be set forth within 45 days
of its engagement in a written opinion addressed to the Board of Directors of
the Company and to the holders of such Put Securities, and shall be final,
conclusive and binding upon the Company and such holders. In the event that the
Interested Parties hire two Independent Evaluators, the Market Value of such
Put Securities shall be the average of the two values established unless there
is a difference of more than 10%, in which case the Independent Evaluators
shall select a third Independent Evaluator who shall establish a value within
30 days of such engagement and the Market Value of such Put Securities shall be
the average of the two closest values established by the Independent
Evaluators. In the event a third Independent Evaluator is hired, the cost of
such evaluation shall be split evenly between the Company and the Required
Holder(s).
2.5 Form of Payment of Put Price. Payment of the Put Price will,
at the option of the Company, be either made in cash or a combination of cash
and notes (the "PUT NOTES") and will, in the case of Put Securities consisting
of Warrants, be net of the then current exercise price thereof. The Company
shall specify the form of the Put Price in a written notice (the "PUT PRICE
NOTICE") to a holder of Put Securities exercising its Put Right within 15 days
after the Company's receipt of the Put Notice delivered by such holder. In the
case where the Company elects to pay all or a portion of the Put Price in the
form of Put Notes, such Put Notes will bear interest (payable quarterly and
computed on a 360-day year/30-day month basis) at the greater of (i) the
average daily "prime rate" as published in the Southwestern edition of The Wall
Street Journal (the "PRIME RATE") plus 1.0% and (ii) 12% per annum. Fifty
percent of the principal amount of such Put Notes shall be due and payable on
the first anniversary of the Put Closing Date, and the remaining outstanding
principal amount of such Put Notes shall be due and payable on the second
anniversary of the Put Closing Date. The Company may, at any time and from time
to time, and without premium, prepay all or any portion of the outstanding
principal amount of the Put Notes, pro rata among the holders of all Put Notes
then outstanding. In connection with each prepayment of principal, the Company
shall also pay all accrued and unpaid interest thereon. The Put Notes will have
the same terms, covenants and collateral (and priority with respect thereto) as
the Notes (whether or not any Notes are then outstanding).
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2.6 Put Closing. The consummation of the exercise of the Put
Rights of a holder or holders of Put Securities (the "PUT CLOSING") shall occur
on the Proposed Put Closing Date or, in the event the Market Value of such Put
Securities has not been established as provided under Section 2.3 on or before
the Proposed Put Closing Date, as soon as practicable after the establishment
of such Market Value, and in any event at such time and place as shall be
agreed to by the Company and the Required Holder(s). At the Put Closing, the
Company shall deliver the Put Price of the Put Securities to the appropriate
holder or holders thereof, in immediately available funds, Put Notes, or a
combination thereof, as specified in the Put Price Notice. The holder or
holders of the Put Securities in respect of which Put Rights are being
exercised shall deliver the certificate or certificates representing the
applicable Put Securities to the Company, duly endorsed or accompanied by duly
executed separate assignments, and shall transfer such Put Securities to the
Company free of any claims, liens or other encumbrances created or incurred by
such holder or holders.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"COMMON STOCK" shall have the meaning specified in
Section 1.
"COMPANY" shall have the meaning specified in the
introductory paragraph of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, or any similar Federal statute, and the rules and regulations of
the Securities and Exchange Commission thereunder, all as the same shall
be in effect at the time. Reference to a particular section of the
Securities Exchange Act of 1934 shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"EXERCISE PERIOD" shall mean the period of time commencing
September 9, 2002 and ending at such time as (i) the Company is required
under Section 12(g) of the Exchange Act to comply with the reporting
requirements of Section 13 or 15(d) of the Exchange Act and (ii) the
Common Stock is listed on the New York Stock Exchange or the American
Stock Exchange or quoted by the Nasdaq National Market or any successor
thereto or comparable system.
"INDEPENDENT EVALUATOR" shall have the meaning specified
in Section 2.4.
"INTERESTED PARTIES" shall have the meaning specified in
Section 2.4.
"MARKET VALUE" shall be determined on a per share basis
(without taking into account any minority discount) as of the date of
the applicable Put Notice, and shall mean the greatest of (i) the
exercise price of the Warrants, as adjusted pursuant to the anti-
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dilution provisions of the Warrants; (ii) the probable sale price for
substantially all of the business of the Company that a willing
strategic purchaser would pay in an arm's length transaction; or (iii)
the probable offering price in an initial public offering of the
Company's Common Stock on a firm underwriting commitment basis, net of
commissions, fees and costs that would reasonably be expected to be
incurred in connection with such an initial public offering.
"PRIME RATE" shall have the meaning specified in Section
2.5.
"PROPOSED PUT CLOSING DATE" shall have the meaning
specified in Section 2.3.
"PURCHASE AGREEMENT" shall have the meaning specified in
Section 1.
"PURCHASER" and "PURCHASERS" shall have the respective
meanings specified in the introductory paragraph of this Agreement.
"PUT CLOSING" shall have the meaning specified in
Section 2.5.
"PUT NOTES" shall have the meaning specified in
Section 2.5.
"PUT NOTICE" shall have the meaning specified in
Section 2.3.
"PUT PRICE" shall have the meaning specified in
Section 2.4.
"PUT PRICE NOTICE" shall have the meaning specified in
Section 2.5.
"PUT RIGHT" and "PUT RIGHTS" shall have the respective
meanings specified in Section 2.1 of this Agreement.
"PUT SECURITIES" shall mean, collectively, the Warrants
and the Warrant Stock.
"REQUIRED HOLDER(S)" shall mean, (i) in the event only one
holder of Put Securities is exercising its Put Right at a given time,
such holder, and, (ii) in the event two or more holders of Put
Securities are exercising their respective Put Rights at the same time,
the holders of at least 50.1% of the Put Securities in respect of
which such Put Rights are being exercised, determined with respect to
the number of shares of Warrant Stock then held by each such holder or,
with respect to Warrants, the number of shares of Warrant Stock for
which such Warrants may then be exercised.
"WARRANT STOCK" shall mean (i) any shares of Common Stock
issued or issuable upon exercise of any of the Warrants and (ii) any
securities issued or issuable with respect to any such Common Stock by
way of stock dividend or stock split or in connection with a
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combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
"WARRANTS" shall have the meaning specified in Section 1.
5. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of 66 2/3% of all Put Securities, determined with respect to the
number of shares of Warrant Stock then held by each such holder (or, with
respect to Warrants, the number of shares of Warrant Stock for which such
Warrants may be exercised). Each holder of any Put Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
5, whether or not such Put Securities shall have been marked to indicate such
consent.
6. Nominees for Beneficial Owners. In the event that any Put
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Put Securities for purposes of any request or other action by any holder or
holders of Put Securities pursuant to this Agreement or any determination of
any number or percentage of shares of Put Securities held by any holder or
holders of Put Securities contemplated by this Agreement. If the beneficial
owner of any Put Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such Put
Securities.
7. Notices. All communications provided for hereunder shall
be sent by first-class mail and (a) if addressed to a party other than the
Company, addressed to such party in the manner set forth in the Purchase
Agreement, or at such other address as such party shall have furnished to the
Company in writing, or (b) if addressed to the Company, at 0000 Xxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: President, or at such other
address, or to the attention of such other officer, as the Company shall have
furnished to each holder of Put Securities at the time outstanding; provided,
however, that any such communication to the Company may also, at the option of
any of the parties hereunder, be either delivered to the Company at its address
set forth above or to any officer of the Company.
8. Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the
benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Put Securities,
subject to the provisions respecting the minimum numbers or percentages of
shares of Put Securities required in order to be entitled to certain rights, or
take certain actions contained herein.
9. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
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10. Specific Performance. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Put Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
11. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of New York.
12. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
XXXXX/XXXXXX, INC.
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: CEO
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
LIFE INVESTORS INSURANCE COMPANY
OF AMERICA
By:
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Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By:
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Name:
Title:
