Exhibit 10.1
EXECUTION VERSION
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WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT, dated as of November 2, 2006 (this
"Agreement"), is by and among X.X. Xxxxxxxxx Corporation, a Delaware corporation
("Parent"), and the holders of Warrants (as defined below) listed on Schedule A
attached hereto (each, a "Warrantholder" and collectively, the
"Warrantholders").
RECITALS:
A. Immediately prior to the execution of this Agreement, the
Warrantholders are the record and beneficial owners of the Warrants set forth
opposite such Warrantholder's name on Schedule A attached hereto.
B. Parent has agreed to repurchase and acquire from the
Warrantholders, and the Warrantholders have agreed to sell to Parent, subject to
the terms and conditions of this Agreement, all of the Warrants owned by the
Warrantholders, as set forth opposite each such Warrantholder's name on Schedule
A attached hereto.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Definitions. For purposes of this Agreement, the
following terms have the following meanings when used herein with initial
capital letters:
(a) "Affiliate" means any Person that directly, or indirectly
through one or more Persons, controls, is controlled by, or is under common
control with, the Person specified. As used in this definition, "control"
(including its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise) of such Person.
(b) "Parent Common Stock" means the common stock, par value $1 per
share, of Parent.
(c) "Person" means any partnership, corporation, association, joint
stock company, trust, joint venture, limited liability company or other
entity or any individual or Governmental Entity (as defined below).
(d) "Warrants" means the warrants to purchase shares of Parent
Common Stock listed on Schedule A attached hereto.
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1. Sale and Transfer of Purchased Shares. The Warrantholders
hereby sell, transfer, convey, assign and deliver to Parent free and clear of
any mortgage, pledge, hypothecation, rights of others, claim, security interest,
encumbrance, title defect, title retention agreement, voting trust agreement,
option, lien, charge or similar restrictions or limitations, including any
restriction on the right to sell or otherwise dispose of the Warrants but
excluding any restrictions or limitations under applicable law (collectively,
"Liens"), and Parent hereby repurchases and acquires from the Warrantholders,
the Warrants. Upon Parent's receipt of the Warrants owned by the Warrantholders,
Parent agrees to pay to each Warrantholder on the date hereof in exchange for
such Warrantholder's Warrants an amount in cash set forth opposite such
Warrantholder's name on Schedule A attached hereto (the "Purchase Price"). The
Purchase Price with respect to each Warrantholder shall be paid by wire transfer
of immediately available funds to the account set forth on Schedule B attached
hereto. Each of the Warrantholders hereby acknowledges and agrees that
immediately following such Warrantholder's receipt of the Purchase Price, the
Warrants shall terminate and be null and void and of no further force or effect
without any further action of the parties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Parent. Parent represents and
warrants to, and agrees with, the Warrantholders on the date hereof as follows:
(a) Organization; Authorization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to execute
and deliver this Agreement and perform its obligations hereunder. The
execution and delivery of this Agreement and the performance by Parent of
its covenants and agreements under this Agreement have been duly and validly
authorized by the board of directors of Parent, and no other corporate
proceedings on the part of Parent (including, without limitation, any
stockholder vote or approval) are necessary to authorize the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Parent and constitutes the valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms, except that
(i) such enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or
hereafter in effect relating to or limiting creditors' rights generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
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(b) No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by this
Agreement will (i) conflict with or result in any breach of any provision of
the incorporation documents or by-laws of Parent or any of its subsidiaries,
(ii) require any filing with, or the obtaining of any permit, authorization,
consent or approval of, any court, department, body, board, bureau,
administrative agency or commission or other governmental authority or
instrumentality, whether federal, state, local or foreign ("Governmental
Entity"), (iii) violate, conflict with or result in a default (or any event
that, with notice or lapse of time or both, would constitute a default) or
require any consent under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions or
provisions of any (A) note, mortgage, indenture, credit agreement, other
evidence of indebtedness or guarantee or (B) license, agreement, lease or
other contract, instrument or obligation, to which Parent or any of its
subsidiaries is a party or by which Parent or any of its subsidiaries or any
of their respective assets may be bound or (iv) violate any order,
injunction, decree, statute, law, rule or regulation applicable to Parent or
any of its subsidiaries, excluding from the foregoing clauses (ii) and (iii)
such requirements, violations, conflicts, defaults or rights that would not
adversely affect the ability of Parent to consummate the transactions
contemplated by this Agreement..
(c) Solvency. Parent is not, and after giving effect to the purchase
of the Warrants, will not be, insolvent within the meaning of Title 11 of
the United States Code, the DGCL or the General Laws of the State of New
York.
(d) No Other Representation. Except for the representations of
Parent contained in this Agreement, Parent makes no other representation or
warranties, express or implied.
Section 3.2. Representations and Warranties of the Warrantholders. Each
Warrantholder represents and warrants to, and agrees with, Parent on the date
hereof as follows:
(a) Organization; Authorization. Such Warrantholder is a limited
partnership duly organized and validly existing under the laws of the state
or country of its jurisdiction of formation. Such Warrantholder has the
power and authority to execute and deliver this Agreement and perform its
obligations hereunder. The execution and delivery of this Agreement and the
performance by such Warrantholder of its covenants and agreements under this
Agreement have been duly and validly authorized by the general partner of
such Warrantholder, and no further proceedings on the part of such
Warrantholder are necessary to authorize the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
such Warrantholder and constitutes the valid and binding agreement of such
Warrantholder, enforceable against such Warrantholder in accordance with its
terms, except that (i) such enforcement may be subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other laws,
now or hereafter in effect, relating to or limiting creditors' rights
generally and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
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(b) No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by this
Agreement will (i) conflict with or result in any breach of any provision of
the organization documents or by-laws of such Warrantholder, (ii) require
any filing with, or the obtaining of any permit, authorization, consent or
approval of, any Governmental Entity, (iii) violate, conflict with or result
in a default (or any event that, with notice or lapse of time or both, would
constitute a default) or require any consent under, or give rise to any
right of termination, cancellation or acceleration under, any of the terms,
conditions or provisions of any note, mortgage, indenture, other evidence of
indebtedness, guarantee, license, agreement, lease or other contract,
instrument or obligation to which such Warrantholder is a party or by which
such Warrantholder or any of its assets may be bound or (iv) violate any
order, injunction, decree, statute, law, rule or regulation applicable to
such Warrantholder, excluding from the foregoing clauses (ii) and (iii) such
requirements, violations, conflicts, defaults or rights that would not
adversely affect the ability of such Warrantholder to consummate the
transactions contemplated by this Agreement.
(c) Warrants. Such Warrantholder is the sole record and beneficial
owner of the Warrants owned by such Warrantholder as set forth opposite such
Warrantholder's name on Schedule A attached hereto and has good and
marketable title to such Warrants, free and clear of any Liens.
(d) No Other Representation. Except for the representations of such
Warrantholder contained in this Agreement, such Warrantholder makes no other
representation or warranties, express or implied.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Taking of Necessary Action; Consent and Waiver. Each of the
parties hereto shall use its reasonable best efforts promptly to take or cause
to be taken all action and promptly to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, in the case of Parent, taking all actions as may
be necessary to assure that Parent has adequate surplus available under
applicable law to consummate the transactions contemplated hereby, including,
without limitation, revaluing assets to the extent necessary.
Section 4.2. Expenses; Transfer Taxes. Each party hereto will bear the
legal, accounting and other expenses incurred by such party in connection with
the negotiation, preparation and execution of this Agreement and the
transactions contemplated hereby. All sales, transfer, recordation and
documentary taxes and fees that may be payable in connection with the
transactions contemplated by this Agreement will be borne by Parent.
Section 4.3. Entire Agreement; Amendments; Waivers. This Agreement and the
agreements, certificates and documents referred to herein and therein set forth
the entire agreement between the parties hereto with respect to the transactions
contemplated by this Agreement. Any provision of this Agreement may be amended
or modified in whole or in part at any time by an agreement in writing among the
parties hereto executed in the same manner as this Agreement. No failure on the
part of any party to exercise, and no delay in exercising, any right shall
operate as a waiver thereof nor shall any single or partial exercise by any
party of any right preclude any other or future exercise thereof or the exercise
of any other right. No investigation by the Warrantholders or Parent prior to or
after the date hereof shall stop or prevent the Warrantholders from exercising
any right hereunder or be deemed to be a waiver of any such right.
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Section 4.4. Counterparts. This Agreement may be executed by facsimile
signature and may be executed in one or more counterparts, each of which shall
be deemed to constitute an original, but all of which together shall constitute
one and the same documents.
Section 4.5. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York applicable to
contracts made and to be performed in that State without giving effect to any
conflict of laws rules or principles that might require the application of the
laws of another jurisdiction.
Section 4.6. Public Announcements. Each Warrantholder hereby agrees to
permit Parent to publish and disclose in any press release or Form 8-K or other
disclosure document that Parent determines to be necessary or desirable in
connection with the repurchase of the Warrants hereunder such Warrantholder's
identity and ownership of Warrants and the nature of its representations,
warranties and covenants in this Agreement. Parent will provide the
Warrantholders with a copy of any proposed disclosure and will provide the
Warrantholders with a reasonable opportunity to comment thereon. Subject to the
preceding two sentences, each of the parties hereto agrees to hold in strict
confidence and not to publicly disclose the status of any discussions or
relations between the parties with respect to the subject matter of this
Agreement, or any of the terms or conditions of this Agreement, except to the
extent that (i) the parties mutually agree to publicly disclose such information
or (ii) any party is legally required (whether by federal securities laws, the
rules of any stock exchange or otherwise) to disclose such information;
provided, however, that in each case, the disclosing party shall consult with
the non-disclosing party prior to making any such disclosure and shall give the
non-disclosing party a reasonable opportunity to comment on the content of such
disclosure.
Section 4.7. Successors and Assigns. The terms of this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
Section 4.8. Schedules. The Schedules attached to this Agreement are
incorporated herein and will be part of this Agreement for all purposes.
Section 4.9. Third Parties. Nothing expressed or implied in this Agreement
is intended, or will be construed, to confer upon or give any Person other than
Parent and the Warrantholders and their respective Affiliates any rights or
remedies under or by reason of this Agreement and no such other Person shall be
a third party beneficiary of any of the provisions hereof.
Section 4.10. Severability. Should any part of this Agreement for any reason
be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and effect
as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any such part or parts which may, for any reason, be hereafter
declared invalid.
Section 4.11. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. If any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(Signatures are on the following pages.)
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IN WITNESS WHEREOF, this Agreement has been executed by the respective
duly authorized officers of the parties hereto, all as of the date first above
written.
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President & Treasurer
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Sachs Management GP GmbH
Its General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Managing Director
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GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX DIRECT INVESTMENT FUND
2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
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SCHEDULE A TO WARRANT PURCHASE AGREEMENT
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Warrant Shares
Beneficially Certificate
Warrant holder Owned Numbers Purchase Price
-------------------------------------- ---------------- ---------------- ----------------
GS Capital Partners 2000, L.P. 318,470 W-1-11 $ 29,298,258.36
591,442 W-2-6
GS Capital Partners 2000 115,719 W-1-12 $ 10,645,857.72
Offshore, L.P. 214,908 W-2-7
GS Capital Partners 2000 GmbH 13,311 W-1-13 $ 1,224,591.90
& Co. Beteiligungs KG 24,721 W-2-8
GS Capital Partners 2000 101,125 W-1-14 $ 9,303,224.52
Employee Fund, L.P. 187,804 W-2-9
Xxxxxxx Sachs Direct 28,875 W-1-15 $ 2,656,417.50
Investment Fund 2000, L.P. 53,625 W-2-10
Total 1,650,000 $ 53,128,350.00
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