EXECUTION COPY
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STOCK PURCHASE AGREEMENT
BY AND AMONG
X.X. XXXXXXXXX CORPORATION
GS CAPITAL PARTNERS 2000, L.P.,
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.,
GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGS KG,
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
AND
XXXXXXX XXXXX DIRECT INVESTMENT FUND 2000, L.P.
DATED AS OF JANUARY 10, 2005
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TABLE OF CONTENTS
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ARTICLE I PURCHASE AND SALE OF SHARES; CLOSING...........................2
Section 1.1. Sale and Transfer of Purchased Shares.....................2
Section 1.2. Closing...................................................2
Section 1.3. Conditions to the Closing.................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES.................................4
Section 2.1. Representations and Warranties of RHD.....................4
Section 2.2. Representations and Warranties of the Stockholders........5
ARTICLE III TERMINATION....................................................6
Section 3.1. Termination...............................................6
Section 3.2. Effect of Termination.....................................6
ARTICLE IV MISCELLANEOUS..................................................7
Section 4.1. Taking of Necessary Action; Consent.......................7
Section 4.2. Expenses; Transfer Taxes..................................7
Section 4.3. Entire Agreement; Amendments; Waivers.....................7
Section 4.4. Counterparts..............................................7
Section 4.5. Governing Law.............................................7
Section 4.6. Public Announcements......................................7
Section 4.7. Notices...................................................8
Section 4.8. Successors and Assigns....................................9
Section 4.9. Jurisdiction; Waiver of Jury Trial........................9
Section 4.10. Captions; References......................................9
Section 4.11. Schedule..................................................9
Section 4.12. Third Parties............................................10
Section 4.13. Certain Definitions......................................10
Section 4.14. Severability.............................................10
Section 4.15. No Strict Construction...................................11
Section 4.16. Survival; Indemnification................................11
Section 4.17. Acknowledgement of Rights................................11
Section 4.18. Use of Proceeds..........................................11
Section 4.19. Capitalization Notice....................................12
Schedule A - Selling Stockholders; Specified Purchase Price
TABLE OF DEFINED TERMS
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Affiliate....................................................................10
Agreement.....................................................................1
Amendment.....................................................................1
Ancillary Documents...........................................................4
Closing.......................................................................2
Closing Date..................................................................2
Financing.....................................................................3
Governmental Entity...........................................................4
Liens.........................................................................2
Material Adverse Effect......................................................10
Person.......................................................................10
Preferred Stock...............................................................1
Purchase Agreement...........................................................10
Purchased Shares..............................................................1
Remaining Shares.............................................................11
RHD...........................................................................1
Specified Purchase Price......................................................2
Stockholder...................................................................1
Stockholder Indemnitees......................................................11
Stockholders..................................................................1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of January
10, 2005, is by and among X.X. Xxxxxxxxx Corporation, a Delaware
Corporation ("RHD"), and the stockholders listed on Schedule A attached
hereto (each, a "STOCKHOLDER" and collectively, the "STOCKHOLDERS").
RECITALS:
A. Immediately prior to the execution of this Agreement, the
Stockholders are the record and beneficial owners of the number of shares
of Convertible Cumulative Preferred Stock, par value $1 per share, of RHD
(the "PREFERRED STOCK") set forth opposite such Stockholder's name under
the caption "Shares of Preferred Stock Beneficially Owned" on Schedule A
attached hereto, and each Stockholder has the right to vote and dispose of
all of such shares of Preferred Stock.
B. RHD has agreed to acquire from the Stockholders, and the
Stockholders have agreed to sell to RHD, subject to the terms and
conditions of this Agreement, the number of shares of Preferred Stock set
forth opposite such Stockholder's name under the caption "Shares of
Preferred Stock To Be Sold" on Schedule A attached hereto (such shares of
Preferred Stock are referred to collectively in this Agreement as the
"PURCHASED SHARES").
X. Xxxxx to entering into this Agreement, RHD's board of directors
established a special committee (the "SPECIAL COMMITTEE"), that did not
include any representatives of the Stockholders, to negotiate the terms of
the transaction contemplated herein with the Stockholders on an arms-length
basis (the "TRANSACTION").
D. The Special Committee, after its negotiation and review of the
Transaction, which included advice from an independent investment bank of
national reputation, determined that the Transaction was beneficial and
fair to RHD and that it should be consummated as described herein.
E. The Second Amendment (the "AMENDMENT") to the Amended and Restated
Credit Agreement, dated as of September 1, 2004, among RHD, X.X. Xxxxxxxxx
Inc., the several banks and other financial institutions or entities from
time to time party thereto, Deutsche Bank Trust Company Americas, as
administrative agent, and the other agents parties thereto, has been duly
executed by or on behalf of each of the parties to the Amendment and is in
full force and effect.
F. RHD and the Stockholders desire to set forth certain agreements
herein.
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
PURCHASE AND SALE OF SHARES; CLOSING
Section 1.1 Sale and Transfer of Purchased Shares. At the Closing,
effective as of the Closing Date, and subject to the terms and conditions
set forth in this Agreement, the Stockholders shall sell, transfer, convey,
assign and deliver to RHD, and RHD shall purchase and acquire from the
Stockholders, the Purchased Shares, 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 vote, sell or otherwise dispose of the
Purchased Shares but excluding any restrictions or limitations under
applicable law (collectively, "LIENS"). The purchase price to be paid to
each Stockholder at the Closing in exchange for such Stockholder's
Purchased Shares shall be as set forth opposite such Stockholder's name
under the caption "Specified Purchase Price" on Schedule A (with respect to
each such Stockholder, such Stockholder's "SPECIFIED PURCHASE PRICE").
Section 1.2 Closing. Subject to the satisfaction or waiver of the
conditions set forth in Section 1.3, the closing of the sale of the
Purchased Shares (the "CLOSING") shall take place at the offices of Xxxxx
Day, North Point, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 concurrently
with or immediately following the closing of the Financing, or at such
other time and/or place as shall be mutually agreed upon by RHD and the
Stockholders. The date upon which the Closing occurs is referred to herein
as the "CLOSING DATE."
Section 1.3 Conditions to the Closing.
(a) RHD. The obligation of RHD to purchase the Purchased Shares
at the Closing is subject to the satisfaction or waiver of each of the
following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of the Stockholders contained in
this Agreement and the Ancillary Documents shall be true and
correct in all material respects (disregarding for these purposes
any materiality, Material Adverse Effect or corollary
qualifications contained therein) on and as of the date of this
Agreement and on and as of the Closing Date with the same effect
as though made on and as of such date, and the Stockholders shall
have performed all obligations and complied with all agreements,
undertakings, covenants and conditions required under this
Agreement and the Ancillary Documents to be performed by the
Stockholders at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Financing. RHD shall have received net proceeds of at
least $280 million from the financing contemplated by the
Offering Memorandum related to the issuance of $300 million of
RHD's Senior Notes due 2013 on the terms and subject to the
conditions thereof (the "FINANCING").
(iv) Stock Certificates and Stock Powers. RHD shall have
received stock certificates representing the Purchased Shares
owned by the Stockholders with duly executed stock powers
attached for transfer to RHD.
(v) Stockholders' Officer Certificates. RHD shall have
received a certificate from each Stockholder, in form and
substance reasonably satisfactory to RHD, dated the Closing Date,
duly executed by an authorized signatory of each such
Stockholder, certifying that the conditions set forth in Section
1.3(a)(i) and (ii) have been satisfied.
(b) The Stockholders. The obligation of each Stockholder to sell
the Purchased Shares at the Closing is subject to the satisfaction or
waiver of each of the following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of RHD contained in this Agreement
and the Ancillary Documents shall be true and correct in all
material respects (disregarding for these purposes any
materiality, Material Adverse Effect or corollary qualifications
contained therein) on and as of the date of this Agreement and on
and as of the Closing Date with the same effect as though made on
and as of such date, and RHD shall have performed all obligations
and complied with all agreements, undertakings, covenants and
conditions required under this Agreement and the Ancillary
Documents to be performed by RHD at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Payment of the Specified Purchase Price. Such
Stockholder shall have received payment of the Specified Purchase
Price by bank wire transfer to an account or accounts designated
in writing for this purpose by such Stockholder to RHD at least
two business days prior to the Closing Date.
(iv) Stock Certificates. Such Stockholder shall have
received a stock certificate representing the shares of Preferred
Stock owned by the Stockholders after giving effect to the
purchase of the Purchased Shares.
(v) RHD's Officer Certificate. The Stockholders shall have
received a certificate from RHD, in form and substance reasonably
satisfactory to the Stockholders, dated the Closing Date, duly
executed by an authorized officer of RHD, certifying that the
conditions set forth in Section 1.3(b)(i) and (ii) have been
satisfied.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of RHD. RHD represents and
warrants to, and agrees with, the Stockholders on the date hereof and at
and as of the Closing as follows:
(a) Organization; Authorization. RHD 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 the other agreements and
instruments executed and delivered or to be executed and delivered
under this Agreement (the "ANCILLARY DOCUMENTS") to which it is a
party and perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Ancillary Documents
and the performance by RHD of its covenants and agreements under this
Agreement and the Ancillary Documents have been duly and validly
authorized by the Board of Directors of RHD, and no other corporate
proceedings on the part of RHD (including, without limitation, any
stockholder vote or approval) are necessary to authorize the
execution, delivery and performance of this Agreement or the Ancillary
Documents or the consummation of the transactions contemplated hereby
and thereby. This Agreement has been, and each of the Ancillary
Documents will be at Closing, duly executed and delivered by RHD and
constitutes, or as of the Closing will constitute, the valid and
binding agreement of RHD, enforceable against RHD in accordance with
its terms, except that (a) 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 (b) 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.
(b) No Conflicts. Neither the execution and delivery of this
Agreement or the Ancillary Documents nor the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents
will (i) conflict with or result in any breach of any provision of the
incorporation documents or By-laws of RHD 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) assuming RHD's receipt
of the Amendment, violate, conflict with or result in a default (or
any event which, 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 (x) note, mortgage,
indenture, credit agreement, other evidence of indebtedness or
guarantee, or (y) license, agreement, lease or other contract,
instrument or obligation, to which RHD or any of its subsidiaries is a
party or by which RHD 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 RHD or any of
its subsidiaries, excluding from the foregoing clauses (ii) and
(iii)(y) such requirements, violations, conflicts, defaults or rights
that would not, individually or in the aggregate, constitute a
Material Adverse Effect.
(c) Solvency. RHD is not, and after giving effect to the
Financing and the purchase of the Purchased Shares will not be,
insolvent within the meaning of Title 11 of the United States Code,
the General Corporation Law of the State of Delaware, or the General
Laws of the State of New York.
(d) Capitalization. As of the date of this Agreement, there are
31,486,001 shares of RHD common stock, $1 par value per share, that
are issued and outstanding.
(e) No Other Representation. Except for the representations of
RHD contained in this Agreement and the Ancillary Documents, RHD makes
no other representation or warranties, express or implied.
Section 2.2. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to, and agrees with, RHD on the date
hereof and at and as of the Closing as follows:
(a) Organization; Authorization. Such Stockholder is a limited
partnership duly organized and validly existing under the laws of the
state or country of its jurisdiction of formation. Such Stockholder
has the power and authority to execute and deliver this Agreement and
the Ancillary Documents to which it is a party and perform its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Ancillary Documents to which it is a party and
the performance by such Stockholder of its covenants and agreements
under this Agreement and the Ancillary Documents to which it is a
party have been duly and validly authorized by the general partner of
such Stockholder, and no further proceedings on the part of such
Stockholder are necessary to authorize the execution, delivery and
performance of this Agreement or the Ancillary Documents to which it
is a party or the consummation of the transactions contemplated hereby
and thereby. This Agreement has been, and each of the Ancillary
Documents to which such Stockholder is a party will be at Closing,
duly executed and delivered by such Stockholder and constitutes, or as
of the Closing will constitute, the valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance
with its terms, except that (a) 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 (b) 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.
(b) No Conflicts. Neither the execution and delivery of this
Agreement or the Ancillary Documents to which such Stockholder is a
party nor the consummation of the transactions contemplated by this
Agreement or the Ancillary Documents to which such Stockholder is a
party will (i) conflict with or result in any breach of any provision
of the organization documents or by-laws of such Stockholder, (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 which,
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 Stockholder is a party or by
which such Stockholder or any of its assets may be bound, or (iv)
violate any order, injunction, decree, statute, law, rule or
regulation applicable to such Stockholder, excluding from the
foregoing clauses (ii) and (iii) such requirements, violations,
conflicts, defaults or rights that would not adversely affect the
ability of such Stockholder to consummate the transactions
contemplated by this Agreement.
(c) Purchased Shares and Interest. Such Stockholder is the sole
record and beneficial owner of the Preferred Stock owned by such
Stockholder as set forth opposite such Stockholder's name on Schedule
A attached hereto under the caption "Shares of Preferred Stock
Beneficially Owned" and has good and marketable title to such
Preferred Stock, free and clear of any Liens.
(d) No Other Representation. Except for the representations of
such Stockholder contained in this Agreement and the Ancillary
Documents to which it is a party, such Stockholder makes no other
representation or warranties, express or implied.
ARTICLE III
TERMINATION
Section 3.1. Termination. This Agreement may be terminated on or any
time prior to the Closing:
(a) by the mutual written consent of each of the Stockholders and
RHD; or
(b) by either RHD or the Stockholders if the Closing shall not
have occurred prior to January 31, 2005, unless the failure of such
occurrence shall be due to the failure of such party to perform or
observe any agreement set forth herein required to be performed or
observed by such party on or before the Closing; or
(c) by RHD or the Stockholders if a Governmental Entity shall
have issued a nonappealable final order, decree or ruling or taken any
other action having the effect of permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this
Agreement.
Section 3.2. Effect of Termination. In the event of the termination of
this Agreement as provided in Section 3.1, all obligations and agreements
of the parties set forth in this Agreement shall forthwith become void
except for the obligations set forth in Sections 4.2 - 4.15 and the second
sentence of Section 4.16 (which, in each case, shall remain in full force
and effect) and there shall be no liability or obligation on the part of
the parties hereto except as otherwise provided in this Agreement.
Notwithstanding the foregoing, the termination of this Agreement under
Section 3.1 shall not relieve either party of any liability for breach of
this Agreement prior to the date of termination.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Taking of Necessary Action; Consent. 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 RHD, using
reasonable best efforts to cause the Financing to be successfully
completed, and for such purpose, at the reasonable request of the other
party, before, at or after the Closing will, without further consideration,
promptly execute and deliver, or cause to be executed and delivered, to the
other party such other instruments in addition to those required by this
Agreement, in form and substance satisfactory to the other party. The
Stockholders hereby consent, pursuant to Section 4.04 of the Purchase
Agreement, to the transactions contemplated by this Agreement, including,
without limitation, the Financing and the purchase of the Purchased Shares.
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, the
Ancillary Documents and the transactions contemplated hereby and thereby.
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 RHD.
Section 4.3. Entire Agreement; Amendments; Waivers. This Agreement,
the Ancillary Documents 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 Stockholders of RHD
prior to or after the date hereof shall stop or prevent the Stockholders
from exercising any right hereunder or be deemed to be a waiver of any such
right.
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 of the parties hereto agree 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. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if
delivered personally, by facsimile or sent by overnight courier as follows:
If to the Stockholders, to:
GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, X.X.
Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
Attention: Xxx Xxxxx, Esq.
with a copy to (which shall not constitute notice):
Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to RHD, to:
X.X. Xxxxxxxxx Corporation
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
with a copy to (which shall not constitute notice):
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
Section 4.8. 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. RHD may not assign any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the Stockholders, provided that, after the Closing,
subject to applicable law, RHD may assign its rights under this Agreement
in whole or in part to any of its Affiliates, but no such assignment shall
relieve RHD of its obligations hereunder. No Stockholder may assign any of
its rights or delegate any of its duties under this Agreement without the
prior written consent of RHD, provided that, after the Closing, subject to
applicable law, such Stockholder may assign its rights under this Agreement
in whole or in part to any of its Affiliates, but no such assignment shall
relieve such Stockholder of its obligations hereunder. Any purported
assignment in violation of this Section 4.8 shall be void.
Section 4.9. Jurisdiction; Waiver of Jury Trial. The state and federal
courts located in the State of New York in New York County shall have
jurisdiction over the parties with respect to any dispute or controversy
between them arising under or in connection with this agreement and, by
execution and delivery of this agreement, each of the parties to this
Agreement submits to the jurisdiction of those courts, including but not
limited to the in personam and subject matter jurisdiction of those courts,
waives any objections to such jurisdiction on the grounds of venue or forum
non conveniens, the absence of in personam or subject matter jurisdiction
and any similar grounds, consents to service of process by mail (in
accordance with Section 4.7) or any other manner permitted by law, and
irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY
JURY, TO THE EXTENT LAWFUL, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF
THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY IN ANY DISPUTE WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.10. Captions; References. The captions contained in this
Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to Articles,
Sections, subsections or Schedules in this Agreement refer to the Articles,
Sections, subsections and clauses of, and the Schedules to, this Agreement.
Section 4.11. Schedule. The Schedule attached to this Agreement are
incorporated herein and will be part of this Agreement for all purposes.
Section 4.12. Third Parties. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any
Person other than RHD and the Stockholders and their respective Affiliates
any rights or remedies under or by reason of this Agreement.
Section 4.13. Certain Definitions.
(a) For purposes of this Agreement, the term "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) For purposes of this Agreement, the term "PERSON" means any
partnership, corporation, association, joint stock company, trust,
joint venture, limited liability company or other entity or any
individual or Governmental Entity.
(c) For purposes of this Agreement, the term "PURCHASE AGREEMENT"
means the Preferred Stock and Warrant Purchase Agreement, dated as of
September 21, 2002, by and among RHD and the Stockholders, as amended
by the Letter Agreement, dated as of November 25, 2002, by and among
the Stockholders, RHD and X.X. Xxxxxxxxx Inc., the Second Letter
Agreement, dated as of January 3, 2003, by and among the Stockholders,
RHD and X.X. Xxxxxxxxx Inc. and the Third Letter Agreement, dated as
of July 22, 2003, by and among the Stockholders, RHD and X.X.
Xxxxxxxxx Inc.
(d) For purposes of this Agreement, the term "MATERIAL ADVERSE
EFFECT" means, with respect to any reference to a state of facts,
event, change, effect or condition, such state of facts, event,
change, effect or condition that has had, has, or could reasonably be
expected to have, a material adverse effect on (i) the business,
assets, operations, properties, condition (financial or otherwise),
prospects, contingent liabilities or material agreements of RHD and
RHD's subsidiaries, taken as a whole (ii) the ability of RHD to
perform its obligations under this Agreement or the Ancillary
Documents or (iii) the validity or enforceability of this Agreement or
the Ancillary Documents or the rights or remedies of the Stockholders
hereunder and thereunder. Notwithstanding anything contained herein to
the contrary, the commencement by or against RHD or any of RHD's
Subsidiaries of any case, proceeding or other action under any law
relating to bankruptcy, insolvency or reorganization or the seeking of
an appointment of a receiver, trustee, custodian or other similar
official for RHD or any of RHD's Subsidiaries or for all or any
substantial part of RHD's or any of RHD's Subsidiaries' assets, shall
be deemed a Material Adverse Effect.
Section 4.14. 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 4.15. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement and
the Ancillary Documents. If any ambiguity or question of intent or
interpretation arises, this Agreement and the Ancillary Documents 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 or any of the
Ancillary Documents.
Section 4.16. Survival; Indemnification. The representations,
warranties, covenants and agreements of the parties hereto contained in
this Agreement or in any of the other Ancillary Documents shall survive the
Closing and the delivery of the Ancillary Documents. In the case of the
representations and warranties made by the Stockholders in this Agreement
or in any of the other Ancillary Documents, such representations and
warranties are being made severally and not jointly by such Stockholders.
From and after the Closing, RHD agrees to indemnify, defend and hold
harmless the Stockholders, their Affiliates, and their officers, directors,
partners, employees, agents, representatives, successors and any assigns of
any of the foregoing ("Stockholder Indemnitees") against all claims,
losses, liabilities, damages, interest and penalties, costs and expenses
(other than any of the foregoing resulting from tax liabilitities incurred
by any of the Stockholders), including, without limitation, losses
resulting from the defense, settlement or compromise of a claim, action,
suit, investigation, subpoena or other compulsion of testimony, or
proceeding, reasonable attorneys', accountants' and expert witnesses' fees,
costs and expenses of investigation, and the costs and expenses of
enforcing the indemnification provided hereunder incurred by any of the
Stockholder Indemnitees arising out of or relating to: (i) any breach of
any representation or warranty made by RHD in this Agreement or any
Ancillary Document, (ii) any breach of any covenant, agreement or
obligation of RHD contained in this Agreement or any Ancillary Document, or
(iii) any actual or threatened claim, litigation, action, suit,
investigation or proceeding by any Person (other than a Stockholder
Indemnitee) in connection with (A) the transactions contemplated hereby or
by the Ancillary Documents or (B) the negotiation, execution, delivery and
performance of this Agreement or the Ancillary Documents. Any payments made
by RHD to a Stockholder under this Section 4.16 shall be considered an
increase to such Stockholder's Specified Purchase Price.
Section 4.17. Acknowledgement of Rights. For avoidance of doubt, RHD
hereby acknowledges and agrees that (i) the transactions contemplated by
this Agreement will not amend, modify or result in any changes in the
preferences, terms, rights or remedies of the shares of Preferred Stock to
be owned by the Stockholders after the Closing (the "Remaining Shares"),
(ii) by way of example and without limiting the generality of the
foregoing, by virtue of the Remaining Shares, the Stockholders will, after
the Closing, have the right to designate the same number of directors, veto
the same corporate actions, and exercise the same registration rights with
respect to the Remaining Shares, as they had with respect to the Preferred
Stock prior to the Closing and (iii) the Purchased Shares will cease to be
Registrable Shares for purposes of the Registration Rights Agreement, dated
November 25, 2002.
Section 4.18. Use of Proceeds. RHD covenants and agrees that the net
proceeds of the Financing will first be applied to the purchase of the
Purchased Shares as described herein.
Section 4.19. Capitalization Notice. RHD shall deliver to the
Stockholders, within 5 days after Closing, a statement as to the number of
shares of RHD common stock, $1 par value per share, that were issued and
outstanding as of immediately after the Closing.
(Signatures are on the following pages.)
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. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
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
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH
Its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
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
-----------------------------------
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
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE A
SELLING STOCKHOLDERS; SPECIFIED PURCHASE PRICE
Shares of
Preferred
Stock Shares of
Beneficially Preferred Stock
Stockholder Owned To Be Sold Specified Purchase Price
----------- ----- ---------- ------------------------
GS Capital Partners 2000, L.P. 110,627 55,314 $152,865,502.78
GS Capital Partners 2000 40,197 20,099 $55,545,499.16
Offshore, L.P.
GS Capital Partners 2000 GmbH & 4,622 2,311 $6,386,668.42
Co. Beteiligungs KG
GS Capital Partners 2000 Employee 35,128 17,564 $48,539,785.42
Fund, X.X.
Xxxxxxx Xxxxx Direct Investment 10,030 5,015 $13,859,429.74
Fund 2000, L.P.
