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SECURITIES PURCHASE AGREEMENT
Among
WORLD FINANCIAL NETWORK HOLDING CORPORATION
LIMITED COMMERCE CORP.
and
THE OTHER SECURITYHOLDERS
NAMED ON SCHEDULE I AND SCHEDULE II HERETO
Dated as of August 30, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I SALE AND TRANSFER OF SECURITIES; CLOSING;
PURCHASE PRICE ................................................ 2
SECTION 1.01 Sale and Transfer of Securities .......................... 2
SECTION 1.02 Delivery of Shares and Notes;
Reissuance of Notes and Payment
of Purchase Price ...................................... 3
SECTION 1.03 Closing .................................................. 4
SECTION 1.04 Assumption of Obligation to Purchase
Additional Shares ...................................... 4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF
THE SELLING SECURITYHOLDERS ................................... 5
SECTION 2.01 Authorization of Agreements, Etc ......................... 5
SECTION 2.02 Validity ................................................. 5
SECTION 2.03 Governmental Approvals, Etc .............................. 5
SECTION 2.04 Litigation Relating to Transaction ....................... 6
SECTION 2.05 Brokers' or Finders' Fees ................................ 6
SECTION 2.06 Title to Shares and Note ................................. 6
SECTION 2.07 Distributions ............................................ 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF
THE COMPANY ................................................... 7
SECTION 3.01 Organization, Qualifications and
Corporate Power; Subsidiaries .......................... 7
SECTION 3.02 Authorization of Agreements, Etc ......................... 7
SECTION 3.03 Validity ................................................. 7
SECTION 3.04 Governmental Approvals, Etc .............................. 8
SECTION 3.05 Litigation Relating to Transaction ....................... 8
SECTION 3.06 Representations and Warranties In the
Merger Agreement ....................................... 8
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER ................. 8
SECTION 4.01 Organization, Power, Etc ................................. 8
SECTION 4.02 Authorization of Agreements, Etc ......................... 8
SECTION 4.03 Validity ................................................. 9
SECTION 4.04 Governmental Approvals, Etc .............................. 9
SECTION 4.05 Litigation Relating to Transaction ....................... 9
SECTION 4.06 Brokers' or Finders' Fees ................................ 9
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ARTICLE V COVENANTS....................................................... 9
SECTION 5.01 Certain Covenants of
the Selling Securityholders ............................ 9
ARTICLE VI CONDITIONS PRECEDENT............................................. 10
SECTION 6.01 Conditions Precedent to
the Obligations of the Purchaser ....................... 10
SECTION 6.02 Conditions Precedent to the
Obligations of the Selling Securityholders ............. 11
ARTICLE VII MISCELLANEOUS.................................................... 12
SECTION 7.01 Expenses, Etc ............................................ 12
SECTION 7.02 Survival of Representations and
Warranties .............................................. 13
SECTION 7.03 Execution in Counterparts ................................ 13
SECTION 7.04 Notices .................................................. 13
SECTION 7.05 Waivers .................................................. 14
SECTION 7.06 Amendments, Supplements, Etc ............................. 14
SECTION 7.07 Entire Agreement ......................................... 14
SECTION 7.08 Applicable Law ........................................... 14
SECTION 7.09 Binding Effect; Benefits ................................. 14
SECTION 7.10 Assignability ............................................ 15
TESTIMONIUM .................................................................... 16
INDEX TO SCHEDULES
Schedule Description
-------- -----------
I Schedule I Securityholders
II Schedule II Securityholder
(ii)
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT dated as of August 1996 among WORLD
FINANCIAL NETWORK HOLDING CORPORATION, a Delaware corporation (the "Company"),
LIMITED COMMERCE CORP., a Delaware corporation (the "Purchaser"), the
securityholders whose names appear on Schedule I hereto (hereinafter sometimes
referred to individually as a "Schedule I Securityholder" and collectively as
the "Schedule I Securityholders") and WCAS CAPITAL PARTNERS II, L.P., a Delaware
limited partnership (the "Schedule II Securityholder" and, together with the
Schedule I Securityholders, the "Selling Securityholders").
RECITALS
WHEREAS the Selling Securityholders hold all of the issued and
outstanding shares of capital stock of Business Services Holdings, Inc., a
Delaware corporation ("BSH"), and 60% of the issued and outstanding shares of
capital stock of the Company; and
WHEREAS the Purchaser holds the remaining 40% of the issued and
outstanding shares of capital stock of the Company; and
WHEREAS the Company and BSH have entered into an Agreement and Plan of
Merger dated as of August , 1996 (the "Merger Agreement"), pursuant to which BSH
and the Company have agreed on the terms and conditions pursuant to which BSH
will be merged (the "Merger") with and into the Company, with the Company as the
surviving corporation of the Merger; and
WHEREAS upon the effectiveness of the Merger, the issued and
outstanding shares of Common Stock, $.01 par value ("BSH Common Stock"), of BSH
shall be converted into an aggregate 28,571,429 shares of Common Stock, $.01 par
value ("Common Stock"), of the Company, and the issued and outstanding shares of
Preferred Stock, $1 par value ("BSH Preferred Stock"), of BSH shall be converted
into an aggregate 25,899,999 shares of Common Stock; and
WHEREAS, upon the effectiveness of the Merger, the Company will assume,
among other things, the obligations and liabilities of BSH under and in respect
of (i) the 10% Subordinated Notes Due January 24, 2002 of BSH (the "Notes") in
the aggregate principal amount of $50,000,000 and (ii) the Securities Purchase
Agreement dated as of January 24, 1996 (the "BSH Securities Purchase
Agreement"), among BSH and the Selling Securityholders; and
WHEREAS the Purchaser, on the one hand, and the Selling
Securityholders, on the other hand, desire to maintain their proportionate
investments in the Company following the effectiveness of the Merger, and, in
connection therewith, (i) the Selling Securityholders have agreed to sell to the
Purchaser, and the Purchaser has agreed to purchase from the Selling
Securityholders, (x) forty percent (40%) of the shares of Common Stock received
by each Selling Securityholder in connection with the Merger, being an aggregate
21,788,572 shares of Common Stock, and (y) forty percent (40%) of the principal
amount of the Notes (being an aggregate $20,000,000 principal amount of Notes),
in each case on the terms and subject to the conditions hereinafter set forth,
and (ii) the Purchaser is willing to assume forty percent (40%) of the financing
obligations of the Schedule I Securityholders under Sections 1.03 and 1.04 of
the BSH Securities Purchase Agreement; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that the BSH Securities Purchase Agreement
be amended to the extent required to give effect to the transactions
contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
I.
SALE AND TRANSFER OF SECURITIES;
CLOSING; PURCHASE PRICE
SECTION 1.01. SALE AND TRANSFER OF SECURITIES.
(a) THE SCHEDULE I COMMON SHARES. Subject to the terms and conditions
set forth herein, each Schedule I Securityholder shall sell to the Purchaser,
and the Purchaser shall purchase from such Schedule I Securityholder on the
Closing Date (as hereinafter defined), the number of shares (the "Schedule I
Common Shares") of Common Stock set forth opposite the name of such Schedule I
Securityholder on Schedule I hereto under the heading "Number of Common Shares".
(b) THE SCHEDULE II COMMON SHARES. Subject to the terms and conditions
set forth herein, the Schedule II Securityholder shall sell to the Purchaser,
and the Purchaser shall purchase from the Schedule II Securityholder on the
Closing Date, the number of shares (the "Schedule II Common Shares" and,
collectively with the Schedule I Common Shares, the "Common Shares") of Common
Stock set forth opposite the name of the
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Schedule II Securityholder on Schedule II hereto under the heading "Number of
Common Shares".
(c) THE NOTES. Subject to the terms and conditions set forth herein,
the Schedule II Securityholder shall sell to the Purchaser, and the Purchaser
shall purchase from the Schedule II Securityholder on the Closing Date, the
principal amount of notes set forth opposite the name of the Schedule II
Securityholder on Schedule II hereto under the heading "Principal Amount of
Note". The purchase of the principal amount of Notes shall also constitute the
purchase of any accrued and unpaid interest in respect of such principal amount.
The Common Shares and the Note are herein referred to as the "Securities".
SECTION 1.02. DELIVERY OF SHARES AND NOTES: REISSUANCE OF NOTES AND
PAYMENT OF PURCHASE PRICE. (a) At the closing on the Closing Date (i) each
Selling Securityholder shall deliver to the Purchaser a certificate or
certificates in definitive form, registered in the name of such Securityholder,
evidencing the Shares being sold by such Selling Securityholder hereunder, duly
endorsed for transfer or accompanied by stock transfer powers duly endorsed in
blank, with all requisite stock transfer taxes paid and stamps affixed and (ii)
the Schedule II Securityholder shall surrender to the Company the Note, duly
endorsed as to the principal amount being sold to the Purchaser by the Schedule
II Securityholder.
(b) At the Closing on the Closing Date, subject to surrender of the
Note as aforesaid, the Company shall issue and deliver to each of the Purchaser
and the Schedule II Securityholder a new Note in the principal amounts being
sold to the Purchaser and being retained by the Schedule II Securityholder,
respectively. Interest on the Note shall be apportioned between the Purchaser
and the Schedule II Securityholder as of the close of business on the Closing
Date.
(c) As payment in full of the purchase price for the Shares and the
Note and against delivery of the certificates evidencing the Shares and
surrender of the Note and issuance of the new Notes as aforesaid, at the closing
on the Closing Date, the Purchaser shall:
(i) pay to each Schedule I Securityholder the amount set
opposite the name of such Schedule I Securityholder in Schedule I
hereto under the heading "Price of Common Shares" being $1.00 for each
Schedule I Common Share being sold by such Schedule I Securityholder,
by transfer of such amount to such Schedule I Securityholder by wire
transfer to an account designated by Welsh, Carson, Xxxxxxxx & Xxxxx
VII, L.P. ("WCAS VII") in writing prior to the Closing Date; and
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(ii) pay to the Schedule II Securityholder the amount set opposite the
name of such Schedule II Securityholder in Schedule II hereto under the
headings "Purchase Price of Subordinated Note" and "Purchase Price of
Common Shares" being the sum of (x) $1.00 for each Schedule II Common
Share being sold by such Schedule II Securityholder, (y) $18,571,428 in
respect of the $20,000,000 principal amount of Notes being sold by the
Schedule II Securityholder and (z) $333,333.33 representing accrued and
unpaid interest on the Notes being purchased by the Purchaser from the
date of original issue thereof through the Closing Date, by wire
transfer to an account designated by WCAS VII in writing prior to the
Closing Date.
SECTION 1.03. CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, X.X. 00000
on August 30, 1996, at 10 a.m. Eastern Daylight Time, or at such other place or
at such other date and time as the Selling Securityholders and the Purchaser may
mutually agree (the date and time of the Closing being herein called the
"Closing Date").
SECTION 1.04. ASSUMPTION OF OBLIGATION TO PURCHASE ADDITIONAL SHARES.
(a) The Purchaser hereby assumes from the Schedule I Securityholders forty
percent (40%) of the Selling Securityholders' obligation under the BSH
Securities Purchase Agreement to purchase up to an aggregate $46,540,000 in
equity securities from the Company, in all respects as if the Purchaser had
been a Purchaser under the BSH Securities Purchase Agreement. In no event shall
any provision of the BSH Securities Purchase Agreement be amended or modified
without the prior written consent of the Purchaser. In addition, the Purchaser
shall not be obligated to make any payment pursuant to this Section 1.04(a)
unless the Selling Securityholders have provided documentation reasonably
satisfactory to the Purchaser demonstrating that the payment of additional
consideration under the BSH Securities Purchase Agreement is required. In no
event will the Purchaser be required to make any payment pursuant to this
Section 1.04(a) unless each Selling Securityholder has theretofore made all
corresponding payments to be made by such Selling Securityholder in accordance
with the BSH Securities Purchase Agreement.
(b) The Company hereby agrees that the assumption by the Purchaser of a
portion of the obligation of the Schedule I Securityholders to provide
additional financing pursuant to the BSH Securities Purchase Agreement as
provided in Section 1.04(a) above shall relieve such Schedule I Securityholders
of their respective proportionate shares of the obligation to provide such
additional financing under the BSH Securities Purchase Agreement.
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II.
REPRESENTATIONS AND WARRANTIES OF
THE SELLING SECURITYHOLDERS
Each Selling Securityholder represents and warrants as to itself only,
to the Purchaser as follows:
SECTION 2.01. AUTHORIZATION OF AGREEMENTS, ETC. (a) Such Selling
Securityholder has full legal capacity and power to execute and deliver
this Agreement and to perform such Selling Securityholder's obligations
hereunder.
(b) The execution and delivery by such Selling Securityholder of this
Agreement, and the performance by each Selling Securityholder of such Selling
Securityholder's obligations hereunder, have been duly authorized (in the case
of each corporation and partnership that is a Selling Securityholder) by all
requisite corporate or partnership action on its part, and will not violate any
provision of law, any order of any court or other agency of government, any
judgment, award or decree or any provision of any indenture, agreement or other
instrument which such Selling Securityholder is a party, or by which such
Selling Securityholder or any of such Selling Securityholder's properties or
assets is bound or affected, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument.
SECTION 2.02. VALIDITY. This Agreement has been duly executed and
delivered by such Selling Securityholder and constitutes a legal, valid and
binding agreement of such Selling Securityholder, enforceable against such
Selling Securityholder in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights in general and to general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at law.
SECTION 2.03. GOVERNMENTAL APPROVALS. ETC. Other than compliance by
the Purchaser and the Company with the requirements of the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") with respect to
the transactions contemplated hereby, no order, authorization, approval or
consent from, or filing with, any federal or state governmental or public
body or other authority having jurisdiction over such Selling
Securityholder is required for the execution, delivery and performance of
this Agreement or is necessary in order to ensure the legality, validity,
binding effect or enforceability of this Agreement.
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SECTION 2.04. LITIGATION RELATING TO TRANSACTION. There are no actions,
suits, proceedings or claims pending before any court, arbitrator or government
agency against or affecting the Purchaser which might enjoin or prevent the
consummation of the transactions contemplated by this Agreement or the Escrow
Agreement.
SECTION 2.05. BROKERS' OR FINDERS' FEES. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried out by
such Selling Shareholder directly, without the intervention of any person on
behalf of the Selling Shareholder in such manner as to give rise to any claim by
any person against the Purchaser for a finder's fee, brokerage commission or
similar payment.
SECTION 2.06. TITLE TO SHARES AND NOTE. Such Securityholder is the
lawful holder of record and beneficial owner of the number of shares of Common
Stock and the principal amount of the Note being sold by such Selling
Securityholder to the Purchaser hereunder and has good and valid title thereto,
in each case free and clear of any and all pledges, security interests, liens,
charges or other encumbrances of any nature whatsoever, except as otherwise
provided in the Stockholders Agreement dated as of January 31, 1996 (the
"Original Stockholders Agreement") among the Company, the Purchaser and certain
of the Selling Securityholders, as amended and restated by the Amended and
Restated Stockholders Agreement of even date herewith (collectively with the
Original Stockholders Agreement, the "Stockholders Agreement"). All shares of
Common Stock to be sold by such Selling Securityholder have been duly authorized
and validly issued by the Company and are non-assessable and, except as provided
in the Stockholders Agreement, the issuance thereof was not subject to any
preemptive or similar rights. Upon consummation of the transactions contemplated
by this Agreement, the Purchaser will be the record and beneficial owner of all
shares of Common Stock to be sold by such Selling Securityholder and will have
good and valid title to such shares, free and clear of any and all pledges,
security interest, liens, charges or other encumbrances of any kind, except as
otherwise provided in the Stockholders Agreement. The principal amount of the
Note to be sold by such Selling Securityholder as well as all other obligations
related thereto (including, without limitation, the obligation to pay interest
in respect thereof), constitute valid and binding obligations of the Company.
Upon consummation of the transactions contemplated by this Agreement, the
Purchaser will be the record and beneficial owner of the principal amount of the
Note to be sold by such Selling Securityholder (and all other rights, including
the right to receive interest payments relating thereto) and will have good and
valid title thereto, free and clear of any and all pledges, security interests,
liens, charges or other encumbrances of any kind.
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SECTION 2.07. DISTRIBUTIONS. Such Selling Securityholder has not
received any payments from BSH or the Company in respect of the Securities,
whether by way of dividend, distribution, payment of interest or otherwise.
III.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company represents and warrants to the Purchaser as follows:
SECTION 3.01. ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER;
SUBSIDIARIES. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware and is duly licensed or
qualified as a foreign corporation in each other jurisdiction in which it
owns, leases or operates any property or in which the nature of business
transacted by it makes such licensing or qualification necessary (other than
any such jurisdiction in which the failure to be so qualified would not, in
the aggregate, have a material adverse effect on its business, properties or
financial condition). The Company has the corporate power and authority, and
the legal right, to own and operate its properties and to carry on its
business as currently conducted.
SECTION 3.02. AUTHORIZATION OF AGREEMENTS, ETC. (a) The Company has
the corporate power and authority to execute and deliver this Agreement and
to perform its obligations hereunder.
(b) The execution and delivery by the Company of this Agreement, and
the performance by the Company of its obligations hereunder, have been duly
authorized by all requisite corporate action on its part, and will not violate
any provision of law, any order of any court or other agency of government, any
judgment, award or decree or any provision of any indenture, agreement or other
instrument which the Company is a party, or by which the Company's properties or
assets is bound or affected, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
SECTION 3.03. VALIDITY. This Agreement has been duly executed and
delivered the Company and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
7
affecting the enforcement of creditors' rights in general and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
SECTION 3.04. GOVERNMENTAL APPROVALS, ETC. Other than compliance by
the Purchaser and the Company with the requirements of the HSR Act with
respect to the transactions contemplated hereby, no order, authorization,
approval or consent from, or filing with, any federal or state governmental
or public body or other authority having jurisdiction over the Company is
required for the execution, delivery and performance of this Agreement or is
necessary in order to ensure the legality, validity, binding effect or
enforceability of this Agreement.
SECTION 3.05. LITIGATION RELATING TO TRANSACTION. There are no actions,
suits, proceedings or claims pending before any court, arbitrator or government
agency against or affecting the Company which might enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
SECTION 3.06. REPRESENTATIONS AND WARRANTIES IN THE MERGER AGREEMENT.
The Representations and Warranties made by the Company to BSH in Article III of
the Merger Agreement (other than those contained in Section 3.01(a) thereof) are
hereby incorporated herein in their entirety and shall, for the purposes of this
Agreement, be deemed to be included among the representations and warranties
made by the Company to the Purchaser in this Article III.
IV.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Selling Securityholders as
follows:
SECTION 4.01. ORGANIZATION, POWER, ETC. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Purchaser has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
SECTION 4.02. AUTHORIZATION OF AGREEMENTS, ETC. The execution and
delivery by the Purchaser of this Agreement, and the performance by the
Purchaser of its obligations hereunder, have been duly authorized by all
requisite corporate action on its part and will not violate any provision of
law, any order of any court or other agency of government, the Certificate of
Incorporation or By-laws of the Purchaser, any judgment, award or decree or
any indenture, agreement or other instrument to which the Purchaser is a
party, or by which it or any of its properties
8
or assets is bound or affected, or result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Purchaser.
SECTION 4.03. VALIDITY. This Agreement has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights in general and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
SECTION 4.04. GOVERNMENTAL APPROVALS, ETC. Other than compliance by the
Company and the Purchaser with the requirements of the HSR Act, no order,
authorization, approval or consent from, or filing with, any federal or state
governmental or public body or other authority having jurisdiction over the
Purchaser is required for the execution, delivery and performance of this
Agreement or is necessary in order to ensure the legality, validity, binding
effect or enforceability of this Agreement.
SECTION 4.05. LITIGATION RELATING TO TRANSACTION. There are no actions,
suits, proceedings or claims pending before any court, arbitrator or government
agency against or affecting the Purchaser which might enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
SECTION 4.06. BROKERS' OR FINDERS' FEES. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried out by
the Purchaser directly with the Selling Securityholders, without the
intervention of any person on behalf of the Purchaser in such manner as to give
rise to any claim by any person against any of the Selling Securityholders for a
finder's fee, brokerage commission or similar payment.
V.
COVENANTS
SECTION 5.01. CERTAIN COVENANTS OF THE SELLING SECURITYHOLDERS. (a)
Upon prior notice and at reasonable times, between the date hereof and the
Closing Date, the Selling Securityholders shall, and shall cause the Company to,
provide access to representatives of the Purchaser to the financial,
9
accounting and legal records of the Company, and to key employees of the
Company designated by the Purchaser, and, in connection therewith, shall
permit representatives of the Purchaser to visit the premises of the Company.
Such activities shall be performed, so far as is reasonably possible, in such
a manner as to avoid disruption of normal operations.
(b) Between the date hereof and the Closing Date, none of the Selling
Securityholders nor any affiliate of any of the Selling Securityholders shall
enter into any transaction, make any agreement or commitment, or take any
action, which would result in any of the representations, warranties or
covenants of the Selling Securityholders contained in this Agreement not being
true and correct at and as of the time immediately after the occurrence of such
transaction, event or action.
VI.
CONDITIONS PRECEDENT
SECTION 6.01. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER.
The obligation of the Purchaser to consummate the transactions contemplated by
this Agreement is subject, at the option of the Purchaser, to the satisfaction
at or prior to the Closing Date of each of the following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Selling Securityholder contained in this Agreement or in any
certificate or document delivered to the Purchaser pursuant hereto shall be true
and correct on and as of the Closing Date as though made at and as of that date,
and each Selling Securityholder shall have so certified to the Purchaser in
writing.
(b) COMPLIANCE WITH COVENANTS. Each Selling Securityholder shall have
performed and complied with all terms, agreements, covenants and conditions of
this Agreement to be performed or complied with by it at or prior to the Closing
Date, and each Selling Securityholder shall have so certified to the Purchaser
in writing.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All proceedings to be taken by
the Selling Securityholders and the Company in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Purchaser and its counsel, Xxxxx Xxxx
& Xxxxxxxx, and the Purchaser and said counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
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(d) HSR ACT; CONSENTS AND APPROVALS. The applicable waiting period
under the HSR Act with respect to the transactions contemplated hereby shall
have expired or been terminated, and all authorizations, consents, waivers
and approvals required in connection with the execution, delivery and
performance of this Agreement shall have been duly obtained and shall be in
form and substance satisfactory to counsel for the Purchaser.
(e) LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding shall
have been instituted by any party or threatened by any governmental department,
agency or authority, in either case seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby or
which would, if adversely decided, materially adversely affect the operation by
the Purchaser of the business of the Company.
(f) MERGER AGREEMENT. The Merger Agreement shall have been executed and
delivered by the parties thereto, and the transactions contemplated thereby
shall have been consummated.
(g) SUPPORTING DOCUMENTS. On or prior to the Closing Date, the
Purchaser and its counsel shall have received copies of the following supporting
documents:
(1) (A) the Certificate of Incorporation of the Company
certified as of a recent date by the Secretary of State of the State of
Delaware and (B) a certificate of the Secretary of State of the State
of Delaware as to the due incorporation and existence of the Company
and listing all documents on file with said official;
(2) a certificate of the Secretary or an Assistant Secretary
of the Company, dated the Closing Date and certifying (A) that attached
thereto is a true and complete copy of the By-laws of the Company as in
effect on the date of such certification; and (B) that the Certificate
of Incorporation of the Company has not been amended since the date of
the last amendment referred to in the certificate delivered pursuant to
clause (1) (B) above; and
(3) such additional supporting documents and other information
with respect to the operations and affairs of the Company as the
Purchaser or its counsel may reasonably request.
All such documents shall be satisfactory in form and substance to the Purchaser
and its counsel.
SECTION 6.02. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLING
SECURITYHOLDERS. The obligations of the Selling Securityholders under this
Agreement are subject, at the option
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of the Selling Securityholders, to the satisfaction at or prior to the
Closing Date of each of the following conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in this Agreement or in any certificate or
document delivered to the Selling Securityholders pursuant hereto shall be true
and correct on and as of the Closing Date as though made at and as of that date
and the Purchaser shall so certified to the Selling Securityholders in writing.
(b) COMPLIANCE WITH COVENANTS. The Purchaser shall have performed and
complied with all terms, agreements, covenants and conditions of this Agreement
to be performed or complied with by it at or prior to the Closing Date, and the
Purchaser shall have so certified to the Selling Securityholders in writing.
(c) CONSENTS AND APPROVALS. The applicable waiting period under the HSR
Act with respect to the transactions contemplated hereby shall have expired or
been terminated and all authorizations, consents, waivers and approvals required
in connection with the execution, delivery and performance of this Agreement
shall have been duly obtained and shall be in form and substance satisfactory to
counsel for the Selling Securityholders.
(d) LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding shall
have been instituted by any party or threatened by any governmental department,
agency or authority, in either case seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby or
which would, if adversely decided, materially adversely affect the operation by
the Purchaser of the business of the Company.
(e) MERGER AGREEMENT. The Merger Agreement shall have been executed and
delivered by the parties thereto, and the transactions contemplated thereby
shall have been consummated.
VII.
MISCELLANEOUS
SECTION 7.01. EXPENSES, ETC. (a) All costs and expenses, including fees
and disbursements of counsel, financial advisors, accountants and consultants,
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement and the closing of the transactions contemplated hereby, shall
be paid by the party incurring such expenses.
(b) The Selling Securityholders, on the one hand, and the Purchaser, on
the other hand, will indemnify the other and
12
hold it or them harmless from and against any claims for finders' fees or
brokerage commissions in relation to or in connection with such transactions
as a result of any agreement or understanding between such indemnifying party
and any third party.
SECTION 7.02. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by any party hereto in this Agreement or
pursuant hereto shall survive the Closing Date hereunder.
SECTION 7.03. EXECUTION IN COUNTERPARTS. For the convenience of the
parties, this Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 7.04. NOTICES. All notices which are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if (i) delivered personally, (ii) mailed by
registered or certified mail, return receipt requested and postage prepaid,
(iii) sent via a nationally recognized overnight courier service or (iv) sent
via facsimile confirmed in writing to the recipient, in each case as follows:
if to the Company, to:
World Financial Network Holding
Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention:
if to the Purchaser, to:
Limited Commerce Corp.
c/o The Limited, Inc.
Three Limited Parkway
Xxxxxxxx, Xxxx 00000
Attention:
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
if to any Selling Securityholder, to the address appearing under the
name of such Selling Securityholder on Schedule I or II hereto;
13
or such other address or addresses as the Selling Security-holders, on the
one hand, or the Purchaser, on the other hand, shall have designated by
notice in writing to the other.
SECTION 7.05. WAIVERS. Either the Selling Securityholders, on the one
hand, or the Purchaser, on the other hand, may, by written notice to the other,
(i) extend the time for the performance of any of the obligations or other
actions of the other under this Agreement, (ii) waive any inaccuracies in the
representations or warranties of the other contained in this Agreement or in any
document delivered pursuant to this Agreement, (iii) waive compliance with any
of the conditions or covenants of the other contained in this Agreement, or (iv)
waive performance of any of the obligations of the other under this Agreement.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
SECTION 7.06. AMENDMENTS, SUPPLEMENTS, ETC. At any time this Agreement
may be amended or supplemented by such additional agreements, articles or
certificates, as may be determined by the parties hereto to be necessary,
desirable or expedient to further the purposes of this Agreement, or to clarify
the intention of the parties hereto, or to add to or modify the covenants, terms
or conditions hereof or to effect or facilitate any governmental approval or
acceptance of this Agreement or to effect or facilitate the filing or recording
of this Agreement or the consummation of any of the transactions contemplated
hereby. Any such instrument must be in writing and signed by all parties hereto.
SECTION 7.07. ENTIRE AGREEMENT. This Agreement, its Exhibits, Schedules
and Annexes and the documents executed on the Closing Date in connection
herewith, constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof.
SECTION 7.08. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
exclusive of the conflicts of laws provisions thereof.
SECTION 7.09. BINDING EFFECT; BENEFITS. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted as-
14
signs. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason
of this Agreement.
SECTION 7.10. ASSIGNABILITY. Neither this Agreement nor any of the
parties' rights hereunder shall be assignable by any party hereto without
the prior written consent of the other parties hereto.
15
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as of the day and year first above written.
WORLD FINANCIAL NETWORK HOLDING
CORPORATION
By /s/ Xxxxx X.
------------------------------
Title
LIMITED COMMERCE CORP.
By
------------------------------
Title:
WELSH, CARSON, ANDERSON, XXXXX VII, L.P.
By: WCAS VII Partners, L.P.,
General Partner
By
------------------------------
Title: General Partner
WCAS INFORMATION PARTNERS, L.P.
By: WCAS INFO Partners, L.P.
------------------------------
General Partner
By
-------------------------------
Title: General Partner
16
WCAS CAPITAL PARTNERS II, L.P.
By: WCAS XX XX Partners,
General Partner
By
-------------------------------
Title: General Partner
WCA MANAGEMENT CORPORATION
By
-------------------------------
Title:
------------------------------
Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. XxXxxxxxx
17
------------------------------
Xxxxx XxxXxxxx
------------------------------
Xxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxxx X. xxXxxxxx
-------------------------------
Xxxxx Xxxxxx
18
SCHEDULE I
Number of Price of
Name and Address of Common Common
Selling Securityholder Shares Shares
---------------------- --------- ------------
Welsh, Carson, Xxxxxxxx & 19,531,348 $19,531,348
Xxxxx VII, L.P.
WCAS Information Partners, 81,440 $81,440
L.P.
WCA Management Corporation 14,252 $14,252
Xxxxxxx X. Xxxxx 122,160 $122,160
Xxxxxxx X. Xxxxxx 93,656 $93,656
Xxxxx X. Xxxxxxxx 203,600 $203,600
Xxxxxxx X. Xxxxx 61,080 $61,080
Xxxxxx X. Xxxx 40,720 $40,720
Xxxxxx X. Xxxxxxxxx 61,080 $61,080
Xxxxx XxxXxxxx 4,072 $4,072
Xxxxx X. Xxxxxx 8,144 $8,144
Xxxxxx X. Xxxxxxxxx 40,720 $40,720
Xxxxxxx X. xxXxxxxx 16,288 $16,288
Xxxxx Xxxxxx (DLJSC as 81,440 $81,440
Custodian for the XXX FBO
Xxxxx X. Xxxxxx)
c/o Welsh, Carson, Xxxxxxxx
& Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
---------- -----------
TOTAL: 21,788,572 $21,788,572
========== ===========
SCHEDULE II
Principal Purchase
Amount of Price of Purchase
Name and Address of Subordinated Subordinated Common Price of
Selling Securityholder Note Note Shares Common Shares
---------------------- ------------ ------------ ----------- -------------------
WCAS Capital Partners $20,000,000 $18,571,428 1,428,572 $ 1,428,572
II L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
