Exhibit 2
STOCK PURCHASE AGREEMENT
dated as of
September 25, 2007
among
QUADRANGLE CAPITAL PARTNERS II LP,
QUADRANGLE SELECT PARTNERS II LP,
QUADRANGLE CAPITAL PARTNERS II-A LP,
CITIGROUP VENTURE CAPITAL EQUITY PARTNERS, L.P.,
CVC/SSB EMPLOYEE FUND, L.P.
and
CVC EXECUTIVE FUND LLC
relating to the purchase and sale
of
5,528,222 shares of common stock, par value $0.01 per share
of
NTELOS HOLDINGS CORP.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitional and Interpretative Provisions..............4
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Initial Purchase and Sale.....................................4
Section 2.02. Second Purchase and Sale......................................5
Section 2.03. Third Purchase And Sale.......................................5
Section 2.04. Closings......................................................5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 3.01. Organization and Power........................................7
Section 3.02. Authorization.................................................7
Section 3.03. Governmental Authorization....................................7
Section 3.04. Noncontravention..............................................7
Section 3.05. Ownership of Shares...........................................7
Section 3.06. Litigation....................................................8
Section 3.07. Finders' Fees.................................................8
Section 3.08. No Reliance...................................................8
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01. Corporate Existence and Power.................................9
Section 4.02. Authorization.................................................9
Section 4.03. Governmental Authorization....................................9
Section 4.04. Noncontravention..............................................9
Section 4.05. Purchase for Investment.......................................9
Section 4.06. Litigation....................................................9
Section 4.07. Finders' Fees.................................................0
Section 4.08. No Reliance...................................................0
ARTICLE 5
RELEASE
Section 5.01. Release of Claims............................................10
i
ARTICLE 6
COVENANTS OF BUYERS AND SELLERS
Section 6.01. Notices Of Certain Events....................................11
Section 6.02. Reasonable Best Efforts; Further Assurances..................11
Section 6.03. Certain Filings..............................................12
Section 6.04. Public Announcements.........................................12
ARTICLE 7
CONDITIONS TO CLOSING
Section 7.01. Conditions to Obligations of the Buyers and Sellers..........12
Section 7.02. Conditions to Obligation of Buyer............................13
Section 7.03. Conditions to Obligation of Seller...........................13
ARTICLE 8
SURVIVAL
Section 8.01. Survival.....................................................14
ARTICLE 9
TERMINATION
Section 9.01. Grounds for Termination......................................14
Section 9.02. Effect of Termination........................................14
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices.....................................................15
Section 10.02. Amendments and Waivers......................................16
Section 10.03. Effect of any Stock Split, Reorganization, etc..............16
Section 10.04. Expenses....................................................16
Section 10.05. Successors and Assigns......................................16
Section 10.06. Governing Law...............................................16
Section 10.07. Jurisdiction................................................16
Section 10.08. WAIVER OF JURY TRIAL........................................17
Section 10.09. Counterparts; Effectiveness; Third Party Beneficiaries......17
Section 10.10. Entire Agreement............................................17
Section 10.11. Severability................................................17
Section 10.12. Specific Performance........................................18
Exhibits
Exhibit A.........Maximum Amount of Shares of Common Stock
ii
STOCK PURCHASE AGREEMENT
AGREEMENT (this "Agreement") dated as of September 25, 2007 among (i)
Quadrangle Capital Partners II LP, a Delaware limited partnership, Quadrangle
Select Partners II LP, a Delaware limited partnership, and Quadrangle Capital
Partners II-A LP, a Delaware limited partnership (collectively, the "Buyers")
and (ii) Citigroup Venture Capital Equity Partners, L.P., a Delaware limited
partnership, CVC/SSB Employee Fund, L.P., a Delaware limited partnership, and
CVC Executive Fund LLC, a Delaware limited liability company (collectively,
the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers are the record and beneficial owners of
5,528,222 shares of Common Stock (the "Shares") of the Company and desire to
sell the Shares to the Buyers, and the Buyers desire to purchase the Shares
from the Sellers, upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person; provided that neither the Company nor any Subsidiary shall
be considered an Affiliate of any Seller or Buyer.
"Applicable Law" means, with respect to any Person, any federal,
state or local law (statutory, common or otherwise), constitution, treaty,
convention, ordinance, code, rule, regulation, order, injunction, judgment,
decree, ruling or other similar requirement enacted, adopted, promulgated or
applied by a Governmental Authority that is binding upon or applicable to such
Person, as amended unless expressly specified otherwise.
"Business Day" means a day, other than Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or required by
Applicable Law to close.
1
"Closing" means the Initial Closing, the Second Closing or the Third
Closing, as the context requires.
"Closing Date" means the date of the Initial Closing Date, the Second
Closing Date or the Third Closing Date, as the context requires.
"Company" means NTELOS Holdings Corp., a Delaware corporation.
"Governmental Authority" means any transnational, domestic or foreign
federal, state or local, governmental authority, department, court, agency or
official, including any political subdivision thereof.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"HSR Value" means the greater of the Market Price or $26.50.
"Initial Closing" means the closing of the purchase and sale of the
Initial Shares pursuant to Section 2.01.
"Initial Closing Date" means the date of the Initial Closing.
"Knowledge" of any Person that is not an individual means the actual
knowledge of such Person's officers or the officers of the entity or entities
controlling such Person.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset.
"Market Price" means the market price of one share of Common Stock
determined in accordance with Rule 801.10 of the Rules adopted under the HSR
Act.
"Maximum Amount" means, with respect to each Buyer, the maximum
aggregate number of shares of Common Stock to be purchased pursuant to this
Agreement by such Buyer as set forth opposite such Buyer's name on Exhibit A
hereto.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a Governmental Authority.
"Pro Rata Percentage" means 98.088% for Citigroup Venture Capital
Equity Partners, L.P., 1.011% for CVC/SSB Employee Fund, L.P., and 0.901% for
CVC Executive Fund LLC or such other percentage as may be determined by
Citigroup Venture Capital Equity Partners, L.P. equaling 100.000% in the
aggregate.
2
"Released Claims" means any and all past, present or future claims,
actions and causes of action in law or equity, suits, obligations, debts,
demands, agreements, promises, liabilities, controversies, damages, losses,
attorneys' fees, costs or expenses of any kind whatsoever ("Claims"), by any
Seller against the Company, the Company's board of directors, its current
directors, its former directors, Affiliates or its shareholders, or its
Subsidiaries, whether individually or collectively, whether based on common
law or on any federal or state statute, rule, regulation, or other law or
right of action, foreseen or unforeseen, matured or unmatured, known or
unknown, accrued or not accrued, suspected or unsuspected, fixed or
contingent, raised or not raised (regardless of whether such claim could be
raised), and whether or not concealed or hidden, arising out of, based upon or
related to the actions of the Company, its Board of Directors, its former
directors, Affiliates or its shareholders, or its Subsidiaries, including, but
not limited to, the actions taken in connection with this Agreement; provided
that, with respect to any Claims by any Seller which do not arise out of or
relate to such Seller's ownership of any securities of the Company, Released
Claims shall not include any Claims the basis of which such Seller has no
Knowledge as of the date hereof.
"Second Closing" means the closing of the purchase and sale of the
Second Closing Shares pursuant to Section 2.02.
"Second Closing Date" means the date of the Second Closing.
"Shareholders Agreement" means the Amended and Restated Shareholders
Agreement, dated as of February 13, 2006, as amended, by and among the
Company, the Sellers, Quadrangle Capital Partners LP and the other
shareholders of the Company named therein.
"Subsidiary" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by the Company.
"Third Closing" means the closing of the purchase and sale of the
Third Closing Shares pursuant to Section 2.03.
"Third Closing Date" means the date of the Third Closing.
(b).Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
--------- --------
Agreement Preamble
Buyers Preamble
Closing 2.04
HSR Condition 2.02
Initial Shares 2.01
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Initial Purchase Price 2.01
Non-Public Information 3.08
Second Closing Purchase Price 2.02
Second Closing Shares 2.02
Sellers Preamble
Shares Recitals
Third Closing Purchase Price 2.03
Third Closing Shares 2.03
VSCC Condition 2.02
Section 1.02. Other Definitional and Interpretative Provisions.
The words "hereof", "herein" and "hereunder" and words of like import used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections, Exhibits and
Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement
unless otherwise specified. All Exhibits and Schedules annexed hereto or
referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in any
Exhibit or Schedule but not otherwise defined therein, shall have the meaning
as defined in this Agreement. Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular. Whenever the
words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation", whether or
not they are in fact followed by those words or words of like import.
"Writing", "written" and comparable terms refer to printing, typing and other
means of reproducing words (including electronic media) in a visible form.
References to any agreement or contract are to that agreement or contract as
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof. References to any Person include the successors and
permitted assigns of that Person. References from or through any date mean,
unless otherwise specified, from and including or through and including,
respectively. References to "law", "laws" or to a particular statute or law
shall be deemed also to include any and all Applicable Law.
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Initial Purchase and Sale. Upon the terms and
subject to the conditions of this Agreement, each of the Sellers agree to sell
their Pro Rata Percentage of that amount of Shares equal to (i) $59,799,900
divided by (ii) the HSR Value of one share of Common Stock (collectively, the
"Initial Shares") to the Buyers, and each of the Buyers, severally and not
jointly, agrees to purchase the Initial Shares at the Initial Closing, but in
no event shall any Buyer be required
4
to purchase Initial Shares in excess of such Buyer's Maximum Amount. The per
share purchase price for the Initial Shares (the "Initial Purchase Price")
shall be $26.50 per share of Common Stock, and shall be payable in cash by the
Buyers at the Initial Closing as provided in Section 2.04(a).
Section 2.02. Second Purchase and Sale. Upon the terms and subject
to the conditions of this Agreement, each of the Sellers agree to sell their
Pro Rata Percentage of the remaining number of Shares held by them after the
Buyers' compliance with the requirements of the HSR Act and/or the expiration
or early termination of the applicable waiting period under the HSR Act (the
"HSR Condition") less any Shares the purchase of which would require the prior
receipt of an order or consent from the Virginia State Corporation Commission
approving the transactions contemplated hereby (the "VSCC Condition") (such
remaining number of Shares collectively, the "Second Closing Shares"),
severally and not jointly, to the Buyers, and each of the Buyers, severally
and not jointly, agrees to purchase the Second Closing Shares at the Second
Closing, but in no event shall any Buyer be required to purchase Second
Closing Shares which, when aggregated with any Initial Closing Shares
purchased by such Buyer, would be in excess of such Buyer's Maximum Amount.
The per share purchase price for the Second Closing Shares (the "Second
Closing Purchase Price") shall be equal to (i) $26.50 plus (ii) interest on
$26.50 at a rate of 8% per annum calculated on a daily basis from the Initial
Closing Date to the Second Closing Date, and shall be payable in cash by the
Buyers at the Second Closing as provided in Section 2.04(b).
Section 2.03. Third Purchase And Sale. Upon the terms and subject to
the conditions of this Agreement, each of the Sellers agree to sell the
remaining number of Shares held by them subsequent to the later of (i) the
Second Closing and (ii) the satisfaction of the VSCC Condition (such remaining
number of Shares collectively, the "Third Closing Shares"), severally and not
jointly, to the Buyers, and each of the Buyers, severally and not jointly,
agrees to purchase the Third Closing Shares at the Third Closing, but in no
event shall any Buyer be required to purchase Third Closing Shares which, when
aggregated with any Initial Closing Shares or Second Closing Shares purchased
by such Buyer, would be in excess of such Buyer's Maximum Amount. The per
share purchase price for the Third Closing Shares (the "Third Closing Purchase
Price") shall be equal to (x) $26.50 plus (y) interest on $26.50 at a rate of
8% per annum calculated on a daily basis from the Initial Closing Date to the
Third Closing Date and shall be payable in cash by the Buyers at the Third
Closing as provided in Section 2.04(c).
Section 2.04. Closings. Each Closing shall take place at the offices
of Xxxxx Xxxx & Xxxxxxxx, 450 Lexington Avenue, New York, New York, or at such
other place as the parties may agree in writing. The Initial Closing shall
take place on the fifth Business Day after the date hereof, or, in the event
that the applicable conditions set forth in Article 7 have not been satisfied
by such date, no later than three (3) Business Days after satisfaction of the
applicable conditions
5
set forth in Article 7, or at such other time as the Buyers and Sellers may
agree. The Second Closing shall take place as soon as possible after the
Initial Closing, but in no event later than three (3) Business Days after
satisfaction of the applicable conditions set forth in Article 7, or at such
other time as the Buyers and Sellers may agree. The Third Closing shall take
place as soon as possible after the Second Closing, but in no event later than
three (3) Business Days, after satisfaction of the applicable conditions set
forth in Article 7, or at such other time as the Buyers and Sellers may agree.
(a) At the Initial Closing:
(i) Each Buyer shall deliver to the Sellers cash in an amount equal
to the Initial Purchase Price multiplied by the number of Initial Closing
Shares purchased by such Buyer, in immediately available funds by wire
transfer to an account designated by the Sellers, by notice to such
Buyer, which notice shall be delivered not later than two (2) Business
Days prior to the Initial Closing Date (or if not so designated, then by
certified or official bank check payable in immediately available funds
to the order of Seller in such amount); and
(ii) The Sellers shall deliver to each Buyer certificates evidencing
the number of Initial Shares purchased by such Buyer, duly endorsed or
accompanied by stock powers duly endorsed in blank, with any required
medallion guarantee thereof.
(b) At the Second Closing:
(i) Each Buyer shall deliver to the Sellers cash in an amount equal
to the Second Closing Purchase Price multiplied by the number of Second
Closing Shares purchased by such Buyer, in immediately available funds by
wire transfer to an account designated by the Sellers, by notice to such
Buyer, which notice shall be delivered not later than two (2) Business
Days prior to the Second Closing Date (or if not so designated, then by
certified or official bank check payable in immediately available funds
to the order of Seller in such amount); and
(ii) The Sellers shall deliver to each Buyer certificates evidencing
the number of Second Closing Shares purchased by such Buyer, duly
endorsed or accompanied by stock powers duly endorsed in blank, with any
required medallion guarantee thereof.
(c) At the Third Closing:
(i) Each Buyer shall deliver to the Sellers cash in an amount equal
to the Third Closing Purchase Price multiplied by the number of Third
Closing Shares purchased by such Buyer, in immediately available funds by
wire transfer to an account designated by the Sellers, by notice to
6
such Buyer, which notice shall be delivered not later than two
Business Days prior to the Third Closing Date (or if not so
designated, then by certified or official bank check payable in
immediately available funds to the order of Seller in such amount);
and
(ii) The Sellers shall deliver to each Buyer certificates evidencing
the number of Third Closing Shares purchased by such Buyer, duly endorsed
or accompanied by stock powers duly endorsed in blank, with any required
medallion guarantee thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller, severally and not jointly, represents and warrants to
the Buyers as of the date hereof and as of each Closing Date that:
Section 3.01. Organization and Power. Such Seller is duly formed,
validly existing and in good standing under the laws of its jurisdiction and
has all entity powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted.
Section 3.02. Authorization. The execution, delivery and
performance by such Seller of this Agreement and the consummation of the
transactions contemplated hereby are within the entity powers of such Seller
and have been duly authorized by all necessary entity action on the part of
such Seller. This Agreement constitutes a valid and binding agreement of such
Seller.
Section 3.03. Governmental Authorization. The execution, delivery
and performance by such Seller of this Agreement and the consummation by such
Seller of the transactions contemplated hereby require no action by or in
respect of, or filing with, any Governmental Authority other than (i)
compliance with any applicable requirements of the HSR Act and (ii) as
required to be made with the Virginia State Corporation Commission.
Section 3.04. Noncontravention. The execution, delivery and
performance by such Seller of this Agreement and the consummation by such
Seller of the transactions contemplated hereby do not and will not (i) violate
its constituent documents (including its charter, by-laws, articles of
association or limited partnership agreement, as applicable), (ii) assuming
compliance with the matters referred to in Section 3.03, violate any
Applicable Law, (iii) require any consent or other action by any Person under,
or constitute a default under any provision of any agreement or other
instrument binding upon such Seller or (iv) violate any judgment, decree or
order applicable to such Seller.
Section 3.05. Ownership of Shares. Such Seller is the record and
beneficial owner of its respective Initial Shares, Second Closing Shares and
Third
7
Closing Shares, free and clear of any Lien and any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such Shares) other than as set forth in the Shareholders Agreement
or as applicable under securities laws generally, and will transfer and
deliver to the Buyers at the Closing valid title to such shares free and clear
of any Lien and any such limitation or restriction other than as set forth in
the Shareholders Agreement or as applicable under securities laws generally.
Section 3.06. Litigation. There is no action, suit, investigation
or proceeding (or any basis therefor) pending against, or to the Knowledge of
such Seller, threatened against or affecting, such Seller before any
arbitrator or any Governmental Authority which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
Section 3.07. Finders' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of such Seller who might be entitled to any fee or
commission from the Buyer or the Company in connection with the transactions
contemplated by this Agreement.
Section 3.08. No Reliance. Such Seller (i) is not relying upon
any representations except those expressly set forth in this Agreement; (ii)
has not relied on the Company or any of the Buyers for any legal, regulatory,
tax, business, investment, financial, and accounting advice, and it has made
its own decisions based upon its own judgment and not upon any view expressed
by the Buyers, the Company or any of their respective agents; and (iii) is
entering into this Agreement with a full understanding of the terms,
conditions and risks thereof and it is capable of and willing to assume those
risks. Such Seller acknowledges that: (a) the Buyers may possess and may
hereafter possess certain non-public information concerning the Company and
its Affiliates that may or may not be independently known to such Seller (the
"Non-Public Information") which may constitute material information with
respect to the transactions contemplated by this Agreement, and (b) each
Seller hereby agrees to sell the Shares to the Buyers notwithstanding that it
is aware that Non-Public Information exists and that the Buyers may not have
disclosed such Non-Public Information to such Seller. Such Seller acknowledges
and represents and warrants to the Buyers that: (a) the Buyers have no
obligations to such Seller to disclose any such Non-Public Information and no
fiduciary obligations to such Seller and (b) such Seller is a sophisticated
and accredited investor (as defined under Rule 501(a) of Regulation D under
the Securities Act of 1933, as amended) with respect to the purchase and sale
of the Shares.
8
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Each Buyer, severally and not jointly, represents and warrants to the
Sellers as of the date hereof and as of each Closing Date that:
Section 4.01. Corporate Existence and Power. Such Buyer is duly
formed, validly existing and in good standing under the laws of its
jurisdiction and has all entity powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
Section 4.02. Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the consummation of the
transactions contemplated hereby are within the entity powers of such Buyer
and have been duly authorized by all necessary entity action on the part of
such Buyer. This Agreement constitutes a valid and binding agreement of such
Buyer.
Section 4.03. Governmental Authorization. The execution, delivery
and performance by such Buyer of this Agreement and the consummation of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Authority other than (i) compliance with any
applicable requirements of the HSR Act and (ii) as required to be made with
the Virginia State Corporation Commission.
Section 4.04. Noncontravention. The execution, delivery and
performance by such Buyer of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate its
constituent documents (including its charter, by-laws, articles of association
or limited partnership agreement, as applicable), (ii) assuming compliance
with the matters referred to in Section 4.03, violate any material Applicable
Law, (iii) require any consent or other action by any Person under, or
constitute a default under, any provision of any agreement or other instrument
binding upon such Buyer or (iv) violate any judgment, decree or order
applicable to such Buyer.
Section 4.05. Purchase for Investment. Such Buyer is purchasing
Initial Shares, Second Closing Shares and Third Closing Shares for investment
for its own account and not with a view to, or for sale in connection with,
any distribution thereof. Such Buyer (either alone or together with its
advisors) has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its
investment in the Initial Shares, Second Closing Shares and Third Closing
Shares and is capable of bearing the economic risks of such investment.
Section 4.06. Litigation. There is no action, suit, investigation
or proceeding pending against, or to the Knowledge of such Buyer threatened
against or affecting, such Buyer before any arbitrator or any Governmental
9
Authority which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
Section 4.07. Finders' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of Buyer who might be entitled to any fee or
commission from the Sellers or the Company in connection with the transactions
contemplated by this Agreement.
Section 4.08. No Reliance. Such Buyer (a) is not relying upon any
representations except those expressly set forth in this Agreement; (b) has
not relied on the Buyers for any legal, regulatory, tax, business, investment,
financial, and accounting advice, and it has made its own decisions based upon
its own judgment and not upon any view expressed by the Sellers or any of
their agents; and (c) is entering into this Agreement with a full
understanding of the terms, conditions and risks thereof and it is capable of
and willing to assume those risks. Such Buyer acknowledges that: (a) each
Seller may possess and may hereafter possess Non-Public Information which may
constitute material information with respect to the transactions contemplated
by this Agreement and (b) each Buyer hereby agrees to purchase the Shares from
the Sellers notwithstanding that it is aware that Non-Public Information
exists and that the Sellers may not have disclosed such Non-Public Information
to such Buyer. Such Buyer acknowledges and represents and warrants to the
Sellers that: (a) the Sellers have no obligations to such Buyer to disclose
any such Non-Public Information and no fiduciary obligations to such Buyer and
(b) Buyer is a sophisticated and accredited investor (as defined under Rule
501(a) of Regulation D under the Securities Act of 1933, as amended) with
respect to the purchase and sale of the Shares.
ARTICLE 5
RELEASE
Each Seller agrees that:
Section 5.01. Release of Claims. On and as of the Third Closing,
each Seller waives and releases, with respect to the Released Claims, any and
all provisions, rights and benefits conferred by any law of any state or
territory of the United States, or principle of common law. Each Seller hereby
acknowledges that it may hereafter discover facts other than or different from
those that it knows or believes to be true with respect to the subject matter
of the Released Claims, but such Seller hereby expressly agrees that, on and
as of the Third Closing Date, it shall have waived and fully, finally and
forever settled and released any known or unknown, suspected or unsuspected,
asserted or unasserted, contingent or non contingent claim with respect to the
Released Claims, whether or not concealed or hidden, without regard to the
subsequent discovery or existence of such different or additional facts.
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ARTICLE 6
COVENANTS OF BUYERS AND SELLERS
The Buyers and Sellers agree that:
Section 6.01. Notices Of Certain Events. The Sellers shall
promptly notify the Buyers of, and the Buyers shall promptly notify the
Sellers of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any Governmental
Authority in connection with the transactions contemplated by this
Agreement;
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its Knowledge threatened against, relating to or
involving or otherwise affecting any party that relate to the
consummation of the transactions contemplated by this Agreement;
(d) any inaccuracy of any representation or warranty contained in
this Agreement at any time during the term hereof that could reasonably
be expected to cause the conditions set forth in Section 7.02 and Section
7.03 not to be satisfied; and
(e) any failure to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this
Section 6.01 shall not limit or otherwise affect the remedies available
hereunder to the party receiving that notice.
Section 6.02. Reasonable Best Efforts; Further Assurances. (a)
Subject to the terms and conditions of this Agreement, the Buyers and Sellers
will use their reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or desirable
under Applicable Laws applicable to such Buyer or Seller to consummate the
transactions contemplated by this Agreement, including (i) preparing and
filing as promptly as practicable with any Governmental Authority or other
third party all documentation to effect all necessary filings, notices,
petitions, statements, registrations, submissions of information, applications
and other documents and (ii) obtaining and maintaining all approvals,
consents, registrations, permits, authorizations and other confirmations
required to be obtained from any Governmental Authority or other third party
that are necessary, proper or advisable to consummate the transactions
contemplated by this Agreement; provided that the parties hereto understand
and agree that the reasonable best efforts of any party hereto shall not be
deemed to include (i) entering into any settlement, undertaking, consent
decree, stipulation
11
or agreement with any Governmental Authority in connection with the
transactions contemplated hereby that would materially and adversely affect
such party or (ii) divesting or otherwise holding separate (including by
establishing a trust or otherwise), or taking any other action (or otherwise
agreeing to do any of the foregoing) with respect to any of its businesses,
assets or properties.
(b) In furtherance and not in limitation of the foregoing, Buyers
shall comply, and representatives of Buyers and Sellers shall instruct the
Company to comply, at the earliest practicable date with any request from the
Virginia State Corporation Commission for additional information, documents or
other materials and shall seek satisfaction of the VSCC Condition as promptly
as practicable. Buyers shall file the required notifications under the HSR
Act, requesting early termination of the applicable waiting period under the
HSR Act, within five (5) Business Days of this Agreement and Buyers and
Sellers shall instruct the Company to comply, at the earliest practicable
date, with its obligations under the HSR Act. Buyers acknowledge and agree
that notwithstanding anything to the contrary set forth herein, using their
reasonable best efforts to satisfy the VSCC Condition and the HSR Condition
are the obligations of the Buyers and not the Sellers.
Section 6.03. Certain Filings. The parties shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions
contemplated by this Agreement and (ii) in taking such actions or making any
such filings, furnishing information required in connection therewith and
seeking timely to obtain any such actions, consents, approvals or waivers.
Section 6.04. Public Announcements. The parties agree to consult with
each other before issuing any press release or making any public statement
with respect to this Agreement or the transactions contemplated hereby and,
except for any press releases and public statements the making of which may be
required by Applicable Law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
ARTICLE 7
CONDITIONS TO CLOSING
Section 7.01. Conditions to Obligations of the Buyers and Sellers. The
obligations of the Buyers and Sellers to consummate the Closings are subject
to the satisfaction of the following conditions:
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(a) Only with respect to the Second Closing, the expiration or
termination of any applicable waiting period under the HSR Act relating
to the transactions contemplated hereby.
(b) Only with respect to the Third Closing, the receipt of an order
or consent from the Virginia State Corporation Commission approving the
transactions contemplated hereby.
(c) No provision of any Applicable Law shall prohibit the
consummation of the applicable Closing.
Section 7.02. Conditions to Obligation of Buyer. The obligation of
each Buyer to consummate each Closing is subject to the satisfaction of the
following further conditions:
(a) Each Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to
the applicable Closing Date;
(b) The representations and warranties of each Seller contained in
this Agreement and in any certificate or other writing delivered by each
Seller pursuant hereto shall be true in all material respects at and as
of the applicable Closing Date as if made at and as of such date; and
(c) The Buyers shall have received a certificate signed by an
authorized officer of each Seller or its general partner or managing
member to the foregoing effect.
Section 7.03. Conditions to Obligation of Seller. The obligation of
each Seller to consummate each Closing is subject to the satisfaction of the
following further conditions:
(a) Each Buyer shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to
the applicable Closing Date;
(b) The representations and warranties of each Buyer contained in
this Agreement and in any certificate or other writing delivered by each
Buyer pursuant hereto shall be true in all material respects at and as of
the applicable Closing Date as if made at and as of such date; and
(c) The Sellers shall have received a certificate signed by an
authorized officer of each Buyer or its general partner or managing
member to the foregoing effect.
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ARTICLE 8
SURVIVAL
Section 8.01. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall survive the
Closing indefinitely or until the latest date permitted by law.
ARTICLE 9
TERMINATION
Section 9.01. Grounds for Termination. This Agreement may be
terminated with respect to any Closing which has not been consummated:
(a) by mutual written agreement of the parties;
(b) by either the Sellers or Buyers if all Closings shall not have
been consummated on or before the expiration of the 270-day period
beginning on the date hereof (provided that neither the Buyers nor
Sellers shall have the right terminate this Agreement with respect to any
Closing if the terminating party's breach of this Agreement has caused
the applicable Closing not to have occurred by the end of such period);
or
(c) by either the Sellers or the Buyers if there shall be any
Applicable Law that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or if consummation of the
transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of any Governmental Authority having competent
jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 9.01(b) or
9.01(c) shall give notice of such termination to the other party. No
termination of this Agreement shall have any effect on the transactions
consummated at any Closing which has occurred prior to such termination.
Section 9.02. Effect of Termination. If this Agreement is terminated
as permitted by Section 9.01, such termination shall be without liability of
either party (or any stockholder, director, officer, employee, agent,
consultant or representative of such party) to the other party to this
Agreement; provided that if such termination shall result from the (i)
intentional failure of either party to fulfill a condition to the performance
of the obligations of the other party, (ii) failure to perform a covenant of
this Agreement or (iii) breach by either party hereto of any representation or
warranty or agreement contained herein, such party shall be fully liable for
any and all damages incurred or suffered by the other party as a result of
such failure or breach. The provisions of Sections 10.04,
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10.06, 10.07 and 10.08 shall survive any termination hereof pursuant to
Section 9.01.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to any Buyer, to:
Quadrangle Capital Partners II LP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
if to any Seller, to:
Citigroup Venture Capital Equity Partners, L.P.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and
15
other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. in the place of receipt and
such day is a Business Day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been received
until the next succeeding Business Day in the place of receipt.
Section 10.02. Amendments and Waivers. (a) Any provision of this
Agreement may be 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.
(b) 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 10.03. Effect of any Stock Split, Reorganization, etc. The
number of Initial Shares, Second Closing Shares and Third Closing Shares and
the Initial Purchase Price, the Second Closing Purchase Price and the Third
Closing Purchase Price shall be adjusted to reflect the effect of any
reclassification, stock split, reverse split, stock dividend, reorganization,
recapitalization or other similar change with respect to the Common Stock
occurring after the date hereof and prior to the applicable Closing.
Section 10.04. Expenses. Except as otherwise provided herein, all
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section 10.05. 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
each Buyer may transfer or assign its rights and obligations under this
Agreement, in whole or from time to time in part, to (i) one or more of its
Affiliates at any time and (ii) after any Closing Date, to any Person;
provided that no such transfer or assignment shall relieve such Buyer of its
obligations hereunder or enlarge, alter or change any obligation of any other
party hereto or due to such Buyer.
Section 10.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard
to the conflicts of law rules of such state.
Section 10.07. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising
16
out of or in connection with, this Agreement or the transactions contemplated
hereby shall 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, so
long as one of such courts shall have subject matter jurisdiction over such
suit, action or proceeding, and that any cause of action arising out of this
Agreement shall be deemed to have arisen from a transaction of business in the
State of New York, and each of the parties hereby irrevocably 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 that 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
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
such party as provided in Section 10.01 shall be deemed effective service of
process on such party.
Section 10.08. 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 10.09. Counterparts; Effectiveness; 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 all of the other parties hereto. Until and unless each party has
received a counterpart hereof signed by the other party hereto, this Agreement
shall have no effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other
communication). No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto, the Company and their respective
successors and assigns.
Section 10.10. Entire Agreement. This 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 10.11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other Governmental Authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated so
17
long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.
Section 10.12. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof
in the United States District Court for the Southern District of New York or
any New York State court sitting in New York City, in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
QUADRANGLE CAPITAL PARTNERS II LP
By: Quadrangle GP Investors II LP, as its
General Partner
By: QCP GP Investors II LLC, as its
General Partner
By: ___________________________
Name:
Title:
QUADRANGLE SELECT PARTNERS II LP
By: Quadrangle GP Investors II LP, as its
General Partner
By: QCP GP Investors II LLC, as its
General Partner
By: ___________________________
Name:
Title:
QUADRANGLE CAPITAL PARTNERS II-A LP
By: Quadrangle GP Investors II LP, as
its General Partner
By: QCP GP Investors II LLC, as its
General Partner
By: ___________________________
Name:
Title:
CVC EXECUTIVE FUND LLC
By: Citigroup Venture Capital GP
Holdings, Ltd., as managing member
By: ___________________________
Name:
Title:
CVC/SSB EMPLOYEE FUND, L.P.
By: CVC Partners LLC, as its General
Partner
By: Citigroup Venture Capital GP
Holdings, Ltd., as its Managing
Member
By:___________________________
Name:
Title:
CITIGROUP VENTURE CAPITAL EQUITY PARTNERS, L.P.
By: CVC Partners LLC, as its General
Partner
By: Citigroup Venture Capital GP
Holdings, Ltd., as its Managing
Member
By:___________________________
Name:
Title:
Exhibit A
Maximum Amount of Shares
of Common Stock to be
Buyer Purchased
----------------------------------- -------------------------
Quadrangle Capital Partners II LP 4,622,865
Quadrangle Select Partners II LP 119,741
Quadrangle Capital Partners II-A LP 785,616
