EXHIBIT 10.8
XXXXXXXXXXXXX.XXX, LLC
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "AGREEMENT") is made as of December 30,
1999, by and between XxxxxXxxxxxxx.xxx, LLC, a Delaware limited liability
company (the "COMPANY") and DSCKW Irrevocable Trust, a Massachusetts trust (the
"PURCHASER").
WHEREAS, the Company desires to issue and sell to the Purchaser, and
the Purchaser desires to purchase from the Company, 629,006 membership interests
of the Company (such 629,006 membership interests being referred to herein as
the "MEMBERSHIP INTERESTS").
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE OF MEMBERSHIP INTERESTS. Subject to and upon the
terms and conditions set forth in this Agreement, the Company agrees to issue
and sell to the Purchaser, and the Purchaser hereby agrees to purchase from the
Company, at the Closing (as hereinafter defined), the Membership Interests at a
purchase price of $6.35923456 per Membership Interest. The aggregate purchase
price payable by the Purchaser to the Company for all of the Membership
Interests shall be $4,000,000.
1.2 CLOSING. The closing of the transactions contemplated under this
Agreement (the "CLOSING") shall take place at the Boston offices of Xxxxxxx Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 on or before December 30,
1999, or on such other date as may be agreed upon in writing between the
Purchaser and the Company.
1.3 DELIVERY. At the Closing, the Purchaser shall deliver to the
Company a cash amount equal to $4,000,000 by certified check or wire transfer;
and the Company shall revise Exhibit A to the Operating Agreement (as defined
below) to reflect the Purchaser's purchase of the Membership Interests. The
Purchaser agrees that in connection with any conversion of the Company to a
corporation, the Purchaser shall, upon request of the Management Board of the
Company (the "MANAGEMENT BOARD"), execute documents required to effect such
conversion, including documents evidencing the Purchaser's agreement to comply
with any restrictions imposed by the Management Board upon the Membership
Interests (or the capital stock or other securities received in exchange for
Membership Interests (or into which Membership Interests are converted)) with
respect to the transfer or voting thereof. The Purchaser understands and agrees
that this constitutes an irrevocable commitment which the Purchaser shall not
have the right to cancel or veto.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to the Purchaser as of the date hereof as follows:
2.1 ORGANIZATION AND STANDING; CERTIFICATE OF FORMATION. The Company is
a limited liability company duly organized, validly existing under, and by
virtue of, the laws of the State of Delaware, and is in good standing under such
laws. The Company has all requisite power and authority to own and operate its
properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is duly qualified and
authorized to transact business and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse effect on its
business, properties, prospects, or financial condition. The Company has
furnished the Purchaser with copies of its Certificate of Formation and its
Amended and Restated Operating Agreement, dated as of June 1, 1999 (the
"OPERATING AGREEMENT").
2.2 POWER AND AUTHORITY. The Company has all requisite legal power and
authority to execute and deliver this Agreement, to authorize the issuance of
the Membership Interests hereunder, and to carry out and perform its obligations
under the terms of this Agreement and the Operating Agreement and the
transactions contemplated hereby and thereby.
2.3 OWNERSHIP OF MEMBERSHIP INTERESTS. The membership interests of the
Company consist of 37,408,468 outstanding membership interests and up to an
additional 9,767,021 membership interests and/or economic interests (such
outstanding and additional interests being referred to collectively as the
"PRESENT INTERESTS") which may be outstanding in the future pursuant to the
exercise of warrants and/or options authorized to be issued (excluding the
2,000,000 options authorized by the Management Board on or about November 23,
1999). The Present Interests do not include (i) those certain membership
interests and/or economic interests of the Company issued by the Company to
Madison Dearborn Capital Partners III, L.P. ("MDCP"), Madison Dearborn Special
Equity III, L.P. ("MDSE") and Special Advisors Fund I, LLC ("SAF," together with
MDCP and MDSE, "MADISON") pursuant to that certain Purchase Agreement, by and
between the Company, Xxx Xxxxxxx and Madison, dated as of even date herewith,
and (ii) those certain membership interests and/or economic interests of the
Company issued by the Company to MSD Capital, L.P. and/or one or more of its
affiliates (collectively, "MSD CAPITAL") pursuant to that certain Purchase
Agreement, by and between the Company and MSD Capital, dated as of even date
herewith. The Interests acquired hereby shall have the rights, preferences,
privileges and restrictions set forth in the Operating Agreement.
2.4 AUTHORIZATION. All limited liability company action on the part of
the Company, its managers, members, directors and officers necessary for the
authorization, execution, delivery and performance of this Agreement and the
Operating Agreement by the Company, the authorization of the transfer of the
Membership Interests and the performance of all of the Company's obligations
hereunder and under the Operating Agreement have been taken or will be taken
prior to the Closing. This Agreement and the Operating Agreement constitute
valid and legally binding obligations of the Company, enforceable in accordance
with their respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
2.5 VALID ISSUANCE OF THE COMPANY'S MEMBERSHIP INTERESTS. The
Membership Interests will, upon issuance pursuant to the terms hereof, be duly
authorized and validly issued in compliance with the Certificate of Formation of
the Company and the Operating Agreement, and such Membership Interests will be
free and clear of any liens or encumbrances; provided, however, that the
Membership Interests shall be subject to restrictions on transfer under state
and/or federal securities laws and pursuant to the terms of the Operating
Agreement.
2.6 NO CONFLICT. The execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not
conflict with or result in any
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violation of or default by the Company (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a benefit under (i) any provision
of the organizational documents of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its respective
properties or assets.
2.7 BROKERS. The Company has not retained, utilized or been represented
by any broker or finder in connection with the transactions contemplated by this
Agreement.
2.8 CONSENTS. All consents, approvals, orders and authorizations
required on the part of the Company in connection with the execution, delivery
or performance of this Agreement and the consummation of the transactions
contemplated herein have been obtained and are effective as of the Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents and
warrants to the Company as follows:
3.1 AUTHORIZATION. All action on the part of the Purchaser and, if
applicable, its trustees, officers, directors, managers, members, shareholders
and/or partners necessary for the authorization, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein has been taken. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
may be limited by bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally and by general equitable principles. The Purchaser
has all requisite power and authority to enter into each of this Agreement and
to carry out and perform its obligations under the terms of this Agreement.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Purchaser is acquiring the
Membership Interests for its own account for investment and not for resale or
with a view to distribution thereof in violation of the Securities Act of 1933,
as amended, and all of the rules and regulations promulgated thereunder (the
"SECURITIES ACT").
3.3 INVESTOR STATUS; ETC. The Purchaser certifies and represents to the
Company that it is an "Accredited Investor" as defined in Rule 501 of Regulation
D promulgated under the Securities Act and was not organized for the purpose of
acquiring any of the Membership Interests. The Purchaser's financial condition
is such that it is able to bear the risk of holding the Membership Interests for
an indefinite period of time and the risk of loss of its entire investment. The
Purchaser has been afforded the opportunity to ask questions of and receive
answers from the management of the Company concerning this investment and has
sufficient knowledge and experience in investing in companies similar to the
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company.
3.4 MEMBERSHIP INTERESTS NOT REGISTERED. The Purchaser understands that
the Membership Interests have not been registered under the Securities Act, by
reason of their issuance by the Company in a transaction exempt from the
registration requirements of the Securities Act. The Purchaser understands that
the exemptions from registration afforded by Rule 144 (the provisions of which
are known to it) promulgated under the Securities Act depend on the satisfaction
of various conditions, and that, if applicable, Rule 144 may afford the basis
for sales only in limited amounts.
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3.5 INVESTMENT REPRESENTATIONS. The Purchaser represents and warrants
to the Company that: (i) it is a Massachusetts trust, (ii) each of its
constituent members is an "accredited investor" as such term is defined in Rule
501(a) promulgated under the Securities Act, and (iii) its principal office is
located at Xxx Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
3.6 NO CONFLICT. The execution and delivery of this Agreement by the
Purchaser and the consummation of the transactions contemplated hereby will not
conflict with or result in any violation of or default by the Purchaser (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to a loss of a
benefit under (i) any provision of the organizational documents of the Purchaser
or (ii) any agreement or instrument, permit, franchise, license, judgment,
order, statute, law, ordinance, rule or regulations, applicable to the Purchaser
or its respective properties or assets.
3.7 BROKERS. The Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
3.8 CONSENTS. All consents, approvals, orders and authorizations
required on the part of the Purchaser in connection with the execution, delivery
or performance of this Agreement and the consummation of the transactions
contemplated herein have been obtained and are effective as of the Closing.
4. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AT CLOSING. The
obligations of the Company under Section 1 of this Agreement are subject to the
fulfillment at or before the Closing of each of the following conditions, any of
which may be waived in writing by the Company:
4.1 INSTRUMENT OF ACCESSION. The Purchaser shall execute an Instrument
of Accession, substantially in the form of Exhibit A attached hereto,
simultaneously with the purchase of the Membership Interests hereunder, in order
to become a party to the Operating Agreement thereby agreeing to be bound by the
restrictions set forth in the Operating Agreement.
4.2 PERFORMANCE. The Purchaser shall have performed or fulfilled all
agreements, obligations and conditions contained herein required to be performed
or fulfilled by them before the Closing.
4.3 PROCEEDINGS SATISFACTORY. All trust and legal proceedings taken by
the Purchaser in connection with the transactions contemplated by this Agreement
and all documents and papers relating to such transactions shall be satisfactory
to the Company, in the reasonable exercise of the judgment of the Company.
5. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER AT CLOSING. The
obligations of the Purchaser under Section 1 of this Agreement are subject to
the fulfillment at or before the Closing of each of the following conditions,
any of which may be waived in writing by the Purchaser:
5.1 PERFORMANCE. The Company shall have performed or fulfilled all
agreements, obligations and conditions contained herein required to be performed
or fulfilled by them before the Closing.
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5.2 PROCEEDINGS SATISFACTORY. All limited liability company and legal
proceedings taken by the Company in connection with the transactions
contemplated by this Agreement and all documents and papers relating to such
transactions shall be satisfactory to the Purchaser, in the reasonable exercise
of the judgment of the Purchaser.
6. MISCELLANEOUS
6.1 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement and the
exhibits hereto constitute the entire agreement among the parties relative to
the subject matter hereof. Any previous agreement among the parties is
superseded by this Agreement. Subject to the exceptions specifically set forth
in this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective executors, administrators, heirs,
successors and assigns of the parties.
6.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
entered into and wholly to be performed within the State of Delaware by Delaware
residents.
6.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
6.4 HEADINGS. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
6.5 NOTICES. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery, or by telecopier (confirmed thereafter by U.S. mail) or delivery by
overnight courier, or five days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed as set forth below
(with copies as indicated), or at such other address as each party may designate
by ten (10) days' advance written notice to all other parties:
IF TO THE COMPANY: IF TO THE PURCHASER:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx DSCKW Irrevocable Trust
Xxxxxx, XX 00000 One Joy Street
Attention: President and CEO Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000 Attention: Xxxxxxxxxx Xxxxxxxxxx
Telecopier No.: (000) 000-0000
WITH COPIES TO:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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6.6 SURVIVAL OF WARRANTIES. The representations and warranties of the
parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing; provided, however,
that, except as provided above, such representations and warranties need only be
accurate as of the date of such execution and delivery and as of the Closing.
6.7 AMENDMENT OF AGREEMENT. Any provision of this Agreement may be
amended by a written instrument by agreement of the parties hereto.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement as of the day and year first above written.
XXXXXXXXXXXXX.XXX, LLC
a Delaware limited liability company
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President and CEO
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
DSCKW IRREVOCABLE TRUST
By: /s/ A. Parafestas
------------------------------------
Xxxxxxxxxx Xxxxxxxxxx, as Trustee
Address: Xxx Xxx Xxxxxx
Xxxxxx, XX 00000
EXHIBIT A
FORM OF INSTRUMENT OF ACCESSION
