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EXHIBIT 5
STOCK PURCHASE AGREEMENT
between
XX. XXXXXXX X. XXXXXXXXX
and
APOLLO HOMES PARTNERS, L.P.,
a Delaware limited partnership
dated as of November 21, 1995
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TABLE OF CONTENTS
Page
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I. Actions to be Completed at or Prior to the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Representations and Warranties of Apollo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. Representations and Warranties of Xxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Restrictions on Transfer of Retained Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
V. Tag-Along Rights; Bring-Along Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
VI. Proxy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VII. Acquisition of Additional Securities from the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
VIII. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IX. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
November 21, 1995, between Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), and Apollo Homes
Partners, L.P., a Delaware limited partnership ("Apollo").
WHEREAS, Apollo owns 5,316,855 shares (the "Apollo Shares") of
common stock, $.01 par value per share ("Common Stock"), of Xxxxxx, Inc., a New
Jersey corporation (the "Company");
WHEREAS, Apollo desires to sell 2,658,855 Apollo Shares (the
"Purchased Shares") and retain 2,658,000 Apollo Shares (the "Retained Shares");
and
WHEREAS, Xxxxxxxxx owns 1,542,144 shares of Common Stock, and
Xxxxx X. Xxxxxxxxx owns 65,782 shares of Common Stock, and Xxxxxxxxx desires to
purchase the Purchased Shares;
NOW THEREFORE, in consideration of the foregoing and of the
promises, covenants and conditions contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereto agree as follows:
I. Actions to be Completed at or Prior to the Closing
The closing of the transactions contemplated hereunder (the
"Closing") shall occur as promptly as practicable following the consummation of
any condition to Closing hereunder but in no event later than November 30, 1995
unless otherwise agreed to by the parties hereto. The date that the closing
actually occurs is referred to as the "Closing Date." At or prior to the
Closing Apollo shall deliver or cause to be delivered to Xxxxxxxxx the
Purchased Shares by means of (i) inter-participant transfers at The Depository
Trust Company ("DTC") to the account of Xxxxx Xxxxxx Inc., participant #0418
against payment of $1,329,427.50 to Apollo's custodian that is a participant in
DTC in the Same Day Funds Settlement System operated by DTC or (ii) delivery of
a certificate or certificates evidencing the Purchased Shares, registered in
the name of Apollo or its nominee, accompanied by written instruments of
transfer, duly executed against wire transfer of immediately available funds in
the amount of $1,329,427.50 to: The Chase Manhattan Bank, N.A., ABA #:
021-000021, A/C: 000-0-000000, BBK: Chase Manhattan Bank, N.A., A/C: 899-
22113, BNF: Apollo Homes Partners, L.P., Attention: Cookie Xxxxxxxx.
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II. Representations and Warranties of Apollo
Apollo hereby represents and warrants to Xxxxxxxxx as follows:
(a) Apollo is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) Apollo has all necessary partnership power and
authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and
delivered by Apollo and constitutes a legal, valid and binding obligation of
Apollo, enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to or affecting generally the
enforcement of creditors' rights and remedies and by general principles of
equity.
(d) The execution and delivery of this Agreement and the
performance of the obligations imposed hereunder will not result in a violation
of the partnership agreement or other organic document of Apollo or any order,
decree or judgment of any court or governmental agency having jurisdiction over
Apollo or its properties, will not conflict with, constitute a default under,
or result in the breach of, any contract, agreement or other instrument to
which Apollo is a party or is otherwise bound and no consent, authorization or
order of, or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement by
Apollo, except for such filings as may be required under the Securities
Exchange Act of 1934, as amended.
(e) There is no litigation or proceeding pending or, to
the best knowledge of Apollo, threatened, against Apollo which would have an
effect on the validity or performance of this Agreement.
(f) Apollo owns the Apollo Shares free and clear of all
liens, claims and other encumbrances (except as may be imposed under the
Securities Act of 1933, as amended, or the "Blue Sky" laws of any state).
(g) All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Apollo directly with
Xxxxxxxxx without the intervention of any Person on behalf of Apollo in such
manner as to give rise to any valid claim by any Person against Xxxxxxxxx for a
finder's fee, brokerage commission or similar payment.
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III. Representations and Warranties of Xxxxxxxxx
Xxxxxxxxx hereby represents and warrants to Apollo as follows:
(a) Xxxxxxxxx has full legal right and power and the
requisite capacity to enter into and perform this Agreement and to consummate
the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by
Xxxxxxxxx and constitutes a legal, valid and binding obligation of Xxxxxxxxx,
enforceable against him in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to or affecting generally the
enforcement of creditors' rights and remedies and by general principles of
equity.
(c) The execution and delivery of this Agreement and the
performance of the obligations imposed hereunder will not result in a violation
of any order, decree or judgment of any court or governmental agency having
jurisdiction over Xxxxxxxxx or any of his properties, will not conflict with,
constitute a default under, or result in the breach of, any contract, agreement
or other instrument to which Xxxxxxxxx is a party or is otherwise bound and no
consent, authorization or order of, or filing or registration with, any court
or governmental agency is required for the execution, delivery and performance
of this Agreement by Xxxxxxxxx, except for such filings as may be required
under the Securities Exchange Act of 1934, as amended.
(d) There is no litigation or proceeding pending or, to
the best knowledge of Xxxxxxxxx threatened, against Xxxxxxxxx which would have
an effect on the validity or performance of this Agreement.
(e) Xxxxxxxxx is purchasing the Purchased Shares (and, if
applicable, the Retained Shares) for his own account, solely for investment and
without a view to the distribution thereof. Xxxxxxxxx is an "accredited
investor" within the meaning of Rule 501 under the Securities Act of 1933, as
amended. Xxxxxxxxx is knowledgeable, sophisticated and experienced in business
and financial matters, is capable of evaluating the merits and risks of the
acquisition of the Purchased Shares (and, if applicable, the Retained Shares)
and has previously invested in securities similar to the Apollo Shares.
Xxxxxxxxx is able to bear the economic risk of his investment in the Purchased
Shares and is able to afford the complete loss of such investment. Xxxxxxxxx
understands that the Company has registered the Apollo Shares pursuant to a
"shelf registration" under the Securities Act of 1933, as amended, but that
such registration statement is not
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current and that even if made current, the right to sell pursuant thereto may
not be available to Xxxxxxxxx with respect to any Apollo Shares. Xxxxxxxxx
understands further that the Apollo Shares are not being sold pursuant to such
registration statement or any other registration statement, and, except as
described above, have not been registered under the Securities Act of 1933, as
amended, or the "Blue Sky" laws of any state, and may not be sold, transferred
or otherwise disposed of except pursuant to an effective and current
registration under the Securities Act of 1933, as amended, and applicable "Blue
Sky" laws or, if available, an exemption therefrom.
(f) All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Xxxxxxxxx directly
with Apollo without the intervention of any Person on behalf of Xxxxxxxxx in
such manner as to give rise to any valid claim by any Person against Apollo for
a finder's fee, brokerage commission or similar payment.
IV. Restrictions on Transfer of Retained Shares
(a) Prior to the first anniversary of the Closing Date,
each Apollo Stockholder agrees that it will not Transfer any of the Retained
Shares except to a Permitted Transferee who shall have executed a Joinder
Agreement and thereby become a party to this Agreement, or pursuant to the
terms of any tender offer or an exchange offer for shares of Common Securities,
or pursuant to Article V of this Agreement.
(b) If any of the Apollo Stockholders (the "Seller")
desires to Transfer any Retained Shares (the "Offered Shares") on or after the
first anniversary of the Closing Date, except for Transfers to a Permitted
Transferee who shall have executed a Joinder Agreement and thereby become a
party to this Agreement, or pursuant to the terms of any tender offer or
exchange offer for shares of Common Securities, or pursuant to Article V of
this Agreement, prior to any such Transfer it shall give written notice of the
proposed Transfer (the "Notice of Intention") to Xxxxxxxxx, specifying the
number of Offered Shares which the Seller wishes to Transfer, the proposed
purchase price (the "Offer Price") therefor and all other material terms and
conditions of the proposed Transfer.
(c) For a period of 15 days following his receipt of the
Notice of Intention, Xxxxxxxxx shall have an irrevocable right to purchase all
of the Offered Shares at the Offer Price and on the other terms specified in
the Notice of Intention, exercisable by delivery of a notice (the "Notice of
Acceptance") to the Seller, specifying Xxxxxxxxx'x intent to purchase all of
the Offered Shares at the Offer Price and on the other terms specified in the
Notice of Intention.
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(d) The closing of any purchase by Xxxxxxxxx pursuant to
this Article IV shall take place on such date, not later than 15 days after
delivery to the Seller of the Notice of Acceptance, as shall be specified in
the Notice of Acceptance. At the closing of such purchase, the Seller shall
either deliver a certificate or certificates evidencing the Offered Shares
being sold duly endorsed for transfer, or accompanied by written instruments of
transfer duly executed or deliver the Offered Shares by means of
inter-participant transfers at DTC, in each case against delivery of the Offer
Price therefor in immediately available funds.
(e) If the Notice of Intention has been duly given, and
Xxxxxxxxx does not timely deliver a Notice of Acceptance or otherwise notifies
the Seller that he has determined not to exercise his option to purchase all of
the Offered Shares at the Offer Price and on the other terms specified in the
Notice of Intention, then the Seller shall have the right, for a period of 45
days from the earlier of (i) the expiration of the 15 days following the
delivery of the Notice of Intention or (ii) the date on which the Seller
receives notice from Xxxxxxxxx that he has determined not to exercise his
option to purchase the Offered Shares, to sell to any other Person (a "Third
Party") the Offered Shares at a price not less than the Offer Price and on the
other terms no more favorable to the Third Party than those set forth in the
Notice of Intention.
(f) No Third Party, tender offeror or exchange offeror
(unless a Xxxxxxxxx Stockholder) shall have any rights under or be bound by any
provisions of this Agreement and the Offered Shares in the hands of any such
Person shall be free of all the provisions of this Agreement, including,
without limitation, the provisions of Articles IV, V and VI of this Agreement.
V. Tag-Along Rights; Bring-Along Rights
(a) If any Xxxxxxxxx Stockholder (the "Transferor")
proposes to Transfer any Common Securities ("Transferor Shares") to any Person
(the "Buyer"), other than to a Permitted Transferee who shall have executed a
Joinder Agreement and thereby became a party to this Agreement then, as a
condition to such Transfer, the Transferor shall cause the Buyer to make a
written offer (the "Tag-Along Offer") to each of the Apollo Stockholders (the
"Offerees") to purchase from each Offeree, at the option of each Offeree, up to
that number of its shares of Common Securities derived by multiplying the total
number of Common Securities then owned by the Offeree by a fraction, the
numerator of which is the total number of Transferor Shares and the denominator
of which is the total number of Common Securities (including the Transferor
Shares) then owned by the Transferor and all other Xxxxxxxxx Stockholders, on
the same terms and conditions as are applicable
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to the Transferor Shares, all of which terms shall be specified in the
Tag-Along Offer. Notwithstanding the foregoing, if any Offeree does not accept
its Tag-Along Offer in full, the other Offerees shall have the right to sell
pursuant to the Tag-Along Offer up to the number of shares of Common Securities
not being sold by such Offeree in proportion to their percentage ownership of
Common Securities, until all such shares are sold. The Transferor shall
provide a written notice (the "Inclusion Notice") of the Tag-Along Offer to
each Offeree, which may accept the Tag-Along Offer by sending a written notice
of acceptance of the Tag-Along Offer to the Transferor within 15 days of
delivery of the Inclusion Notice specifying the number of Common Securities
which it wishes to sell (including the number it wishes to sell in the event
any Offeree does not accept the Tag-Along Offer in full).
The Buyer shall have 45 days, commencing on the fifteenth day
following delivery of the Inclusion Notice, in which to purchase the shares of
Common Securities with respect to which the Tag-Along Offer was accepted and
the Transferor Shares. The material terms of such sale, including, without
limitation, price and form of consideration, shall be as set forth in the
Inclusion Notice. If at the end of such 45-day period the Buyer has not
completed the purchase of all the Transferor Shares and all the Offeree's
Common Securities proposed to be sold, the provisions of this Article V(a)
shall begin anew with respect to all such Common Securities.
(b) If the Transferor Shares constitute all of the Common
Securities owned by all Xxxxxxxxx Stockholders, the proposed Transfer is to a
Buyer who is not a Permitted Transferee of Xxxxxxxxx or an Affiliate or
Associate of any Xxxxxxxxx Stockholder and is in the form of a bona fide sale
in which the only consideration to be paid to the Offerees and the Transferors
per share of Common Security is cash consideration in an amount not less than
(x) $.50 during the first year following the Closing Date, (y) $.75 during the
second year following the Closing Date and (z) $1.00 during the third year
following the Closing Date and the Transferor requests in the Inclusion Notice
that all Offerees sell their Common Securities pursuant to the Tag-Along Offer,
then the Offerees shall be required to participate in the Tag-Along Offer in
full.
(c) Concurrently with the Transfer of the Transferor
Shares and shares of Common Securities of the Offerees to the Buyer pursuant to
the Tag-Along Offer, the Buyer shall pay and the Transferor shall cause the
Buyer to pay to each Offeree its respective portion of the sales price of the
shares of Common Securities sold or otherwise disposed of pursuant thereto.
(d) Except for its obligations pursuant to the Tag Along
Offer, no Buyer shall have any rights under or be bound by
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any provisions of this Agreement, and any Common Securities in the hands of a
Buyer shall be free of all the provisions of this Agreement, including, without
limitation, the provisions of Articles IV, V and VI of this Agreement.
(e) Notwithstanding anything to the contrary set forth
herein, in connection with any Transfer of Common Securities by an Offeree
under this Article V, no Offeree shall be required to make any representations
or warranties except to the effect as set forth in Article II of this Agreement
to the extent then accurate, and no Offeree shall be required to provide any
indemnification or guaranty or act as a surety or in a similar capacity.
VI. Proxy
The Apollo Stockholders hereby grant to Xxxxxxxxx an
irrevocable proxy coupled with an interest to vote all of the Retained Shares
at any time then owned by them solely for the election of directors; provided,
however, that if any Apollo Stockholder tenders any Retained Shares pursuant to
a tender or exchange offer or any Xxxxxxxxx Stockholder Transfers any Common
Securities other than to a Permitted Transferee who shall have executed a
Joinder Agreement and become a party to this Agreement, the number of Retained
Shares subject to this proxy will be decreased by the number of Retained Shares
so tendered or exchanged or Common Securities so Transferred. The provisions
of this Article VI are personal to Xxxxxxxxx and shall not be enforceable by
any other Person, including without limitation, any successor or assign (by
operation of law or otherwise, including without limitation upon the death or
disability of Xxxxxxxxx), Permitted Transferee, Affiliate or Associate of
Xxxxxxxxx.
VII. Acquisition of Additional Securities from the Company
(a) Prior to acquiring directly or indirectly, any
securities from the Company (a "Triggering Issuance"), other than pursuant to a
dividend or distribution to all holders of Common Stock or up to 500,000 shares
of Common Securities (subject to adjustment for any stock splits, stock
dividends, recapitalizations and similar events) granted to Xxxxxxxxx under any
stock option plan adopted and implemented in accordance with Rule 16b-3 of the
Securities Act of 1933, as amended, the Xxxxxxxxx Stockholders shall offer and
shall cause their respective Affiliates and Associates to offer (the "Offer"),
to each of the Apollo Stockholders an opportunity to purchase that number of
the securities so acquired by the Xxxxxxxxx Stockholders (the "Xxxxxxxxx
Securities") derived by multiplying the total number of Xxxxxxxxx Securities by
a fraction, the numerator of which is the total number of Common Securities
then
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owned by such Apollo Stockholder, and the denominator of which is the total
number of Common Securities then owned by all Xxxxxxxxx Stockholders (without
giving affect to the issuance of the Xxxxxxxxx Securities).
(b) The Xxxxxxxxx Stockholders shall give at least 30
days' prior written notice (the "Issuance Notice") to each Apollo Stockholder of
any proposed Triggering Issuance, which notice shall disclose in detail all of
the proposed terms and conditions of such Triggering Issuance including the
purchase price for the Xxxxxxxxx Securities and a proposed closing date for the
purchase by the Apollo Stockholders of their portion of the Xxxxxxxxx
Securities. Each Apollo Stockholder will be entitled to purchase its portion of
the Xxxxxxxxx Securities at the same price, on the same terms, and at the same
time as the Xxxxxxxxx Securities are issued to the Xxxxxxxxx Stockholders
pursuant to such Triggering Issuance by delivery of written notice to Xxxxxxxxx
of such election within 20 days after delivery of the Issuance Notice (the
"Election Notice"); provided, that if more than one type of security (including
any debt or hybrid security) is issued to the Xxxxxxxxx Stockholders pursuant to
such Triggering Issuance, each Apollo Stockholder shall, if it exercises its
rights pursuant to this Article VII, purchase such securities in the same ratio
as issued to the Xxxxxxxxx Stockholders pursuant to such Triggering Issuance. If
any Apollo Stockholder has elected to purchase any Xxxxxxxxx Securities, the
sale of such securities shall be consummated on the proposed closing date set
forth in the Issuance Notice or as soon as practical thereafter. Notwithstanding
the foregoing, if any Apollo Stockholder elects not to accept its rights in full
pursuant to this Article VII, the other Apollo Stockholders shall have the right
to purchase such Apollo Stockholders' portion of Xxxxxxxxx Securities not being
purchased, in proportion to their percentage ownership of Common Securities
until all such Xxxxxxxxx Securities are sold.
VIII. Definitions
(a) The following capitalized terms, when used in this
Agreement, have the respective meanings set forth below:
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such Person. For
the purposes of this definition, "control" (including, with its correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of securities, by contract or
otherwise.
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"Apollo Stockholders" means Apollo and its respective direct
and indirect Permitted Transferees, so long as any such Person shall hold
Common Securities.
"Associate" means, with respect to any Person, (i) any
corporation or organization of which such Person is an officer or partner or
is, directly or indirectly, the beneficial owner of 10 percent or more of any
class of equity securities; (ii) any trust or other estate in which such Person
has a substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of
such Person, or any relative of such spouse, who has the same home as such
Person or who is a director or officer of such Person or any of its parents or
subsidiaries.
"Bankruptcy Event" means an event whereby the Company or a
Subsidiary thereof shall commence a voluntary case under the Federal bankruptcy
laws or any other applicable Federal or state bankruptcy, insolvency or similar
law, or consent to the entry of an order for relief in an involuntary case
under such law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company or
a Subsidiary thereof or of any substantial part of its property, or make an
assignment for the benefit of its creditors, or admit in writing its inability
to pay its debts generally as they become due, or if a decree or order for
relief in respect of the Company or a Subsidiary thereof shall be entered by a
court having jurisdiction in the premises in an involuntary case under the
Federal bankruptcy laws or any other applicable Federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company or
a Subsidiary thereof or of any substantial part of their respective properties.
"Xxxxxxxxx Stockholder" means Xxxxxxxxx and his Permitted
Transferees, so long as any such Person shall hold Common Securities.
"Change of Control" means the occurrence in one or more
transactions or events or series of transactions or events of any of the
following: (i) the acquisition by any Person of securities representing at
least a majority of the voting power of all securities of the Company then
outstanding, assuming the conversion, exchange or exercise of all securities
convertible, exchangeable or exercisable for or into voting securities; (ii)
the sale or transfer of all or substantially all of the consolidated assets of
the Company (whether by sale, transfer, merger or otherwise); (iii) any merger,
consolidation, recapitalization, reorganization or similar event to which the
Company or any Subsidiary of the Company is a party, except pursuant to a
transaction immediately after which the Apollo
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Stockholders and Xxxxxxxxx Stockholders (including their Affiliates and
Associates) continue to have ownership and full economic interest in the Common
Securities in the same proportion in relation to the other holders of Common
Securities as a group as immediately before such transaction; or (iv) the
dissolution or liquidation of the Company or any Significant Subsidiary of the
Company.
"Common Securities" means the Common Stock, and any securities
issued with respect thereto as a result of any stock dividend, stock split,
reclassification, recapitalization, reorganization, merger, consolidation or
similar event or upon the conversion, exchange or exercise thereof.
"Joinder Agreement" means a Joinder Agreement in the Form of
Exhibit A hereto.
"Permitted Transferee" means:
(i) as to any Xxxxxxxxx Stockholder, the spouse
or any lineal descendant (including by adoption) of such
Xxxxxxxxx Stockholder, or any revocable trust of which any
Xxxxxxxxx Stockholder is the trustee and which is established
solely for the benefit of any of the foregoing individuals and
whose terms are not inconsistent with the terms of this
Agreement; and
(ii) as to any Apollo Stockholder, any general or
limited partner of Apollo; any Affiliate or Associate of Apollo
or of any general or limited partner of Apollo; any director,
officer, employee or representative of Apollo, of any general
or limited partner of Apollo, or of any Affiliate or Associate
of Apollo or such general or limited partner; and any trust, a
majority in interest of the beneficiaries of which, or
corporation or partnership, a majority in interest of the
stockholders or limited partners of which, or partnership, the
managing general partner of which, are (or is) one or more of
the Persons identified in this clause (ii), the spouse of any
such Person and/or such Person's lineal descendants (including
by adoption).
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, joint venture, government (or agency or political
subdivision thereof) or any other entity of any kind.
"Significant Subsidiary" means, a Subsidiary which meets any
of the following conditions: (i) the Company's and its other Subsidiaries'
investments in and advances to the Subsidiary exceed 20 percent of the total
assets of the Company and its
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Subsidiaries consolidated as of the time of determination or the end of the
most recently completed fiscal year; or (ii) the Company's and its other
Subsidiaries' proportionate share of the total assets (after intercompany
eliminations) of the Subsidiary exceeds 20 percent of the total assets of the
Company and its Subsidiaries consolidated as of the time of determination or
the end of the most recently completed fiscal year; or (iii) the Company's and
its other Subsidiaries' equity in the income from continuing operations before
income taxes, extraordinary items and cumulative effect of a change in
accounting principle of the Subsidiary exceeds 20 percent of such income of the
Company and its Subsidiaries consolidated as of the time of determination or
the end of the most recently completed fiscal year.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a partnership, association
or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed
to have a majority ownership interest in a partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
partnership, association or other business entity gains or losses or shall be
or control the managing director or general partner of such partnership,
association or other business entity.
"Transfer" means, directly or indirectly, any sale, transfer,
assignment, hypothecation, pledge or other disposition of any Common Securities
or any interests therein.
"Vote" means to vote at any regular or special meeting of
shareholders or to execute a written consent in lieu of such a meeting.
(b) The following terms, when used in this Agreement,
shall have the meanings ascribed thereto in the Section indicated below:
Term Article
---- -------
Agreement Preamble
Apollo Preamble
Apollo Shares Preamble
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Buyer V(a)
Xxxxxxxxx Preamble
Xxxxxxxxx Securities VII(a)
Closing I
Closing Date I
Common Stock Preamble
Company Preamble
DTC I
Election Notice VII(b)
Inclusion Notice V(a)
Issuance Notice VII(b)
Notice of Acceptance IV(c)
Notice of Intention IV(b)
Offer VII(a)
Offer Price IV(b)
Offerees V(a)
Offered Shares VI(b)
Purchased Shares Preamble
Retained Shares Preamble
Seller IV(b)
Tag-Along Offer V(a)
Third Party IV(e)
Transferor V(a)
Transferor Shares V(a)
Triggering Issuance VII(a)
IX. Miscellaneous
(a) Information. Each of Xxxxxxxxx and Apollo
acknowledges that the other has or may have had access to material non-public
information regarding the Company. Such material non-public information may
include, but would not be limited to, the respective financial conditions,
results of operations, businesses, properties, assets, liabilities, management,
appraisals, projections, plans and proposals as well as information regarding
creditors of the Company, as the case may be, and claims or potential claims of
their respective creditors. Each of Xxxxxxxxx and Apollo acknowledges that any
and all non-public information available to the other may be materially adverse
to its own interests and if it were in possession of some or all of that
information it might not enter into the transaction contemplated by this
Agreement. Each of Xxxxxxxxx and Apollo acknowledges and agrees that it is not
relying upon the other to disclose, and such other party shall have no
obligation to disclose, any of the information referred to above. Each party
has conducted its own investigation, to the extent it deemed necessary or
desirable for the purpose of entering into the transaction contemplated hereby,
regarding the information described above. Each of Xxxxxxxxx and Apollo agree
that to the fullest extent permitted by applicable law, each party waives and
releases any and all claims either party may
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have against the other and their respective Associates and Affiliates, and the
respective officers, directors, employees, agents, representatives and partners
of each of the foregoing by reason of any nondisclosure of the information
described in this Agreement.
(b) Further Actions; Additional Parties. Each of
Xxxxxxxxx and Apollo agrees to take such actions (whether before or after the
Closing) as reasonably necessary to carry out the intentions of the parties
under this Agreement. Such actions include, but are not limited to, executing
and delivering further documents, instruments or agreements. Xxxxxxxxx agrees
to cause each direct or indirect Permitted Transferee, Affiliate and Associate
of Xxxxxxxxx'x that acquires Common Securities to execute and deliver to Apollo
a Joinder Agreement and thereby become party to this Agreement as a Xxxxxxxxx
Stockholder.
(c) Entire Agreement; Amendments. This Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and may not be modified or amended except in a writing executed
by the party against whom enforcement is sought.
(d) Governing Law. The corporate laws of the State of
New Jersey will govern all questions concerning the relative rights of
Xxxxxxxxx and Apollo, each in their capacity as stockholders of the Company
hereunder. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
(e) Headings. The headings used in this Agreement are
for convenience only, do not form a part of this Agreement and shall not affect
in any way the meaning or interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in one
or more counterparts which when taken together shall constitute one agreement.
(g) No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and is not for the benefit of,
nor may any provisions hereof be enforced by, any other Person or entity.
(h) Termination. This Agreement (other than this Article
IX) shall terminate upon the third anniversary of the Closing Date; provided,
however, that in the event, prior to the
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third anniversary of the Closing Date, of a Change of Control, Bankruptcy Event
or Transfer by the Xxxxxxxxx Stockholders (including their Affiliates and
Associates) to any Person (other than to their Permitted Transferees) of an
aggregate of 1,000,000 shares of Common Securities (subject to appropriate
adjustment for any stock splits, stock dividends, recapitalizations and similar
events), the provisions of Articles IV, V(b) and VI will terminate upon the
occurrence of such Change of Control, Bankruptcy Event or Transfer.
(i) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or mailed (by registered or certified
mail, return receipt requested) or by reputable overnight courier, fee prepaid
to the parties at the following addresses:
If to Xxxxxxxxx or any Xx. Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxx Stockholder: The Anchorage
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
with a copy to: Xxxxxxx Xxxx
Deutch & Xxxx
000 Xxxxxx
Xxxxxxxxxx, XX 00000
If to Apollo or any Xxxxx X. Xxxxxx
Apollo Stockholder: Xxxxxxx X. Xxxxxx
Apollo Advisors, L.P.
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
with a copy to: Xxx Xxxxx
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Any party from time to time may change its address or other information for the
purpose of notices to that party by giving notice specifying such change to the
other parties hereto.
(j) Successors and Assigns, Etc. This Agreement shall be
binding on the parties hereto and their respective Permitted Transferees to
whom Common Securities are Transferred. Except as set forth above, this
Agreement is not assignable by operation of law or otherwise (including without
limitation upon the death or disability of Xxxxxxxxx). In the event of a
Transfer of Common Securities by any Apollo Stockholder to any Xxxxxxxxx
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Stockholder, only the provisions of this Agreement which are expressly
applicable to Xxxxxxxxx Stockholders shall be applicable to such Xxxxxxxxx
Stockholder and to such Common Securities in the hands of such Xxxxxxxxx
Stockholder. In the event of a Transfer of Common Securities by any Xxxxxxxxx
Stockholder to any Apollo Stockholder, only the provisions of this Agreement
which are expressly applicable to Apollo Stockholders shall be applicable to
such Apollo Stockholder and to such Common Securities in the hands of such
Apollo Stockholder.
(k) Registration Rights. Apollo hereby assigns to
Xxxxxxxxx, Apollo's rights, if any, with respect to the Purchased Shares (and,
to the extent purchased by Xxxxxxxxx, the Retained Shares) only, under that
certain Registration Rights Agreement dated May 28, 1993 among the Company and
each of the Persons named on Schedule A thereto. Xxxxxxxxx understands that
Apollo is not making any express or implied representation or warranty with
respect to the Registration Rights Agreement or such assigment, including,
without limitation, as to whether Xxxxxxxxx will be able to exercise any rights
under such Registration Rights Agreement or enforce any provisions thereof.
(l) Condition. Xxxxxxxxx has informed Apollo that
Xxxxxxxxx is considering requesting the Company to appoint him and J. Xxxxxx
Xxxxxx to the Board of Directors of the Company. The only condition to the
Closing hereunder shall be that Xxxxxxxxx and J. Xxxxxx Xxxxxx be so appointed.
Xxxxxxxxx understands that whether or not he and J. Xxxxxx Xxxxxx are appointed
to the Board of Directors shall be determined by the Board of Directors and not
by Apollo. Apollo makes no representation or warranty as to whether Xxxxxxxxx
and J. Xxxxxx Xxxxxx will be appointed to the Board of Directors of the Company
and is not under any obligation to make any effort on behalf of Xxxxxxxxx and
J. Xxxxxx Xxxxxx in regard thereto.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
APOLLO HOMES PARTNERS, L.P.
By: AIF II, L.P., its general partner
By: APOLLO ADVISORS, L.P.,
its Managing General Partner
By: APOLLO CAPITAL MANAGEMENT, INC.
its General Partner
By:_____________________________
Name:
Title:
________________________________
XXXXXXX X. XXXXXXXXX
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