STOCK PURCHASE AGREEMENT
Exhibit 10.1
This
STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of October 17, 2006, is among Xxxx
Corporation, a Delaware corporation, (the “Company”), and those other parties named on the
signature page hereto (collectively, the “Buyers” or individually, a “Buyer”).
WHEREAS, the Company and the Buyers desire to enter into this Agreement to purchase securities
in a private sale exempt from the registration requirements of the Securities Act of 1933, as
amended (the “‘33 Act”), and the rules of the United States Securities and Exchange Commission (the
“SEC”);
WHEREAS, the Buyers wish, jointly and severally, to purchase, and the Company wishes to sell,
upon the terms and conditions stated in this Agreement, up to 5,797,102 shares of common stock, par
value $0.01 per share, of the Company (the “Common Stock”), for an aggregate purchase price of
approximately $133,333,346; and
WHEREAS, the Buyers, jointly and severally, have committed to purchase up to an additional
2,898,551 shares of Common Stock pursuant to Section 1(c) hereof at the same price per share.
NOW, THEREFORE, the Company and the Buyers hereby agree as follows:
| 1. | PURCHASE AND SALE OF PURCHASED SHARES |
(a) Purchase of Purchased Shares. Subject to the satisfaction (or waiver) of the
conditions set forth in Section 5 below, the Company shall issue and sell to the Buyers, and the
Buyers agree, jointly and severally, to purchase from the Company on the Closing Date (as defined
below), 5,797,102 shares of Common Stock (the “Purchased Shares”). The Purchased Shares will be
allocated among the Buyers as the Buyers shall instruct in writing one day prior to the Closing.
The closing of the transactions contemplated herein (the “Closing”) shall occur on the Closing Date
at the offices of Winston & Xxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Purchase Price. The aggregate purchase price for the Purchased Shares to be
purchased by the Buyers at the Closing shall be $133,333,346 (the “Purchase Price”).
(c) Additional Shares. Following the execution and delivery of this Agreement, the
Company will offer to sell up to an additional 2,898,551 shares (“Additional Shares”) of Common
Stock in a sale exempt from the registration requirements of the ‘33 Act to certain of its existing
stockholders (“Other Offerees”) at a price per share of $23.00 and with Escrow arrangements similar
to the Buyers’. To the extent the Other Offerees have not entered into agreements to acquire the
Additional Shares by 9:00 a.m. on October 17, 2006, the Buyers, jointly and severally, shall buy
the unpurchased Additional Shares on the same terms and conditions on which they are acquiring the
Common Stock hereunder, such Additional Shares
will be deemed Purchased Shares for all purposes hereunder, and the Purchase Price will be
adjusted accordingly. Insofar as an Other Offeree defaults on its obligation to pay for Additional
Shares which it has agreed to purchase, the Buyers shall acquire such Additional Shares and they
shall be deemed Purchased Shares, and the Purchase Price will be adjusted accordingly. The Company
agrees that any sale of the Additional Shares is expressly conditioned upon the closing of the sale
of the Purchased Shares.
(d) Escrow Amount. No later than 4:30 p.m. (New York time) on October 17, 2006 (the
“Escrow Closing”), the Buyers, jointly and severally, shall pay the Purchase Price into an escrow
account (the “Escrow”) pursuant to an Escrow Agreement (the “Escrow Agreement”) among the Company,
the Buyers and the Escrow Agent (the “Escrow Agent”), the terms of which will be agreed to prior to
the Escrow Closing. The funds held in the Escrow will be for the benefit of the Company and all
interest earned on these funds held in Escrow will be paid to the Company if the Purchased Shares
are sold to the Buyers. If the Purchased Shares are not sold to the Buyers, the interest will be
paid to the Buyers. These funds will be released to purchase the Purchased Shares when the
conditions to Closing have been met.
(e) Closing Date. The date and time of the Closing (the “Closing Date”) shall be 8:30
a.m., New York City Time, one business day after the conditions in Section 5 have been met (or such
later date as is mutually agreed to by the Company and the Buyers).
(f) Form of Payment. On the Closing Date, (i) in accordance with the Escrow
Agreement, the Escrow Agent shall pay the Purchase Price to the Company for the Purchased Shares to
be issued and sold to the Buyers at the Closing, by wire transfer of immediately available funds in
accordance with the Company’s written wire instructions delivered to the Escrow Agent, and (ii) the
Company shall deliver to the Buyers certificates representing the Purchased Shares. Certificates
representing the Purchased Shares shall contain legends indicating that the shares underlying these
certificates have not been registered under the ‘33 Act and are subject to restrictions on their
transferability.
(g) Dividends and Distributions. If the Company, at any time after the date hereof but
prior to the Closing, declares and pays a dividend or other distribution (in each case whether in
cash, in kind, in securities or otherwise) on its Common Stock, the Buyers shall be entitled to
receive their pro rate share of any such dividend or distribution as if the Buyer had acquired the
Purchased Shares and any Additional Shares prior to the record date for such dividend or
distribution. Such dividend or other distribution shall be paid at the Closing.
| 2. | REPRESENTATIONS AND WARRANTIES OF THE BUYERS |
The Buyers, jointly and severally, represent and warrant that:
(a) Organization; Authority. Each Buyer is duly incorporated or organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder.
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(b) Validity; Enforcement. The execution and delivery of this Agreement by each Buyer
and the consummation by each Buyer of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of each Buyer and no further consent or action is
required by any Buyer, its governing body, partners or members. This Agreement has been duly
executed and delivered by each Buyer and is a valid and binding obligation of each Buyer
enforceable against each Buyer in accordance with its terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies.
(c) Investment Intent. Each Buyer is a financially sophisticated institutional
investor and is an “accredited investor” (as defined in Rule 501 of Regulation D under the ‘33 Act)
that is experienced in financial matters and it is purchasing the Purchased Shares for its own
account for investment and with no present intention of, or view to, distributing such Purchased
Shares or any part thereof except in compliance with the ‘33 Act, but without prejudice to each
Buyer’s right at all times to sell or otherwise dispose of all or any part of the Purchased Shares
under a registration statement filed under the ‘33 Act, or in a transaction exempt from the
registration requirements of the ‘33 Act, including a transaction pursuant to Rule 144.
(d) Ownership Interest. Upon giving effect to the transactions contemplated by this
Agreement (excluding any acquisition of Additional Shares), the Buyers (together with their
affiliates and associates) will hold an aggregate of 9,096,393 shares of Common Stock and will have
economic exposure with respect to an additional 5,836,400 shares of Common Stock pursuant to cash
settled contracts with various counterparties, such shares subject to such contracts being
“Exposure Shares.” None of the Buyers have direct or indirect voting rights or dispositive rights
or powers with respect to the Exposure Shares (although the Buyers do have the right to request,
but not demand , that the contracts be terminated prior to the scheduled termination dates thereof)
nor shall the Buyers be deemed to be the Beneficial Owners of any Exposure Shares for any purposes
under this Agreement, except as expressly set forth herein. For purposes of this Agreement, (i)
“Beneficial Owner” shall have the meaning set forth in Rule 13d-3 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and successor regulation thereto, (ii) “Beneficial Ownership”
and “Beneficially Own” shall refer to the ownership interest of a Beneficial Owner, (iii)
“affiliate” shall have the meaning set forth in Rule 12b-2 under the Exchange Act, or any successor
regulation thereto, and (iv) “associate” shall have the meaning set forth in Rule 12b-2 under the
Exchange Act, or any successor regulation thereto. For the avoidance of doubt, clauses (i) and
(ii) of this subsection (d) shall not include any Exposure Shares.
| 3. | REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
The Company hereby makes the following representations and warranties to the Buyers:
(a) Organization and Qualification. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware, with the requisite
corporate power and authority to own and use its properties and assets and to carry on its
business. The Company is not in violation of, nor will the consummation of the
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transaction contemplated herein violate, any of the provisions of its certificate of
incorporation or bylaws. The Company is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, would not, individually or in the aggregate: (i) be materially
adversely affect the legality, validity or enforceability of this Agreement, or (ii) have or result
in a material adverse effect on the results of operations, assets, business or condition (financial
or otherwise) of the Company, taken as a whole.
(b) Authorization; Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by
the Company and the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company and no further consent or action is
required by the Company, its board of directors or its stockholders. This Agreement has been duly
executed and delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such enforceability may be
limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies.
(c) Authorization of the Purchased Shares. The Purchased Shares have been duly
authorized and when issued in accordance with this Agreement against payment therefor will be
validly issued, fully paid and nonassessable. None of the Purchased Shares will be issued in
violation of the preemptive or other similar rights of any securityholder of the Company nor will
they trigger any anti-dilution or similar rights under the Company’s Certificate of Incorporation
or any material agreement to which the Company is subject or bound.
(d) No General Solicitation. Neither the Company nor any person acting on its behalf
has, directly or indirectly, solicited any offer to buy, sold or offered to sell or otherwise
negotiated in respect of, or will solicit any offer to buy or offer to sell or otherwise negotiate
in respect of, any security which is or would be integrated with the sale of the Purchased Shares
in a manner that would require the Purchased Shares to be registered under the ‘33 Act. Neither
the Company nor any person acting on its behalf has engaged or will engage in connection with the
offering of the Purchased Shares in any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the ‘33 Act.
(e) Section 203. The Company has taken all necessary corporate action to approve the
acquisition of the Purchased Shares by the Buyers and any subsequent purchases by the Buyers that
do not exceed the limitations set forth in Section 6(a)(ii) of this Agreement, including any
necessary corporate action to cause the Buyers not to be deemed an interested stockholder for
purposes of Section 203 of the Delaware General Corporation Law (“Section 203”) by reason of such
purchase or purchases. A copy of the Board’s 203 resolution is attached as Exhibit A hereto and
indicates that the approval is limited as set forth thereon.
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(f) Offering Memorandum. The Company has delivered to the Buyers an Offering
Memorandum dated October 16, 2006 (the “Offering Memorandum”). The documents incorporated in the
Offering Memorandum by reference, when taken together with the Offering Memorandum, do not, as of
the date hereof, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) Assuming the accuracy of the Buyers’ representation in Section 2(d) hereof, the issuance
and sale of the Purchased Shares, and the consummation of the transactions contemplated herein will
not cause any default under and will not accelerate the vesting of any benefit under the Xxxx
Corporation Long Term Stock Incentive Compensation Plan or other material agreement of the Company.
| 4. | COVENANTS |
(a) Best Efforts. Each party shall use its best efforts timely to satisfy the
conditions set forth in Section 5 of this Agreement, including, without limitation, doing the
things necessary, proper or advisable with respect to all filing and permissions (including
promptly providing all requested information with respect to second requests) under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (“HSR Act”) to consummate the transactions
herein. Each party covenants and agrees to use its best efforts to complete the HSR Act filing
within ten days of the date hereof. The Company will undertake all necessary action to cause the
Purchased Shares to be authorized for listing on the New York Stock Exchange upon official notice
of issuance.
| 5. | CONDITIONS TO THE COMPANY’S AND THE BUYERS’ OBLIGATION TO SELL AND PURCHASE THE PURCHASED SHARES |
The obligation of the Buyers hereunder to purchase the Purchased Shares, and of the Company to
issue and sell the Purchased Shares to the Buyers at the Closing is subject to the following
conditions:
(a) Any approvals required under the HSR Act shall have been obtained or the waiting period
required thereby shall have expired or otherwise been terminated and no action shall have been
taken by the United States Department of Justice or the United States Federal Trade Commission
challenging and seeking to enjoin, or threatening to enjoin, the transactions contemplated under
the Agreement.
(b) The shares of Common Stock to be issued pursuant to the transaction contemplated herein
shall have been authorized for listing on the New York Stock Exchange, subject to official notice
of issue.
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| 6. | POST CLOSING AGREEMENTS |
(a) Standstill. (i) The Buyers agree that from and after the date of this Agreement,
the Buyers shall not, and shall not permit any of their affiliates or associates
(collectively, the “Buyer Group”), to directly or indirectly, unless in any such case
specifically invited in writing to do so by the board of directors of the Company (the “Company
Board”):
(A) for a period of one year from the Closing, initiate, participate in, or consent to the
taking of any stockholder action by consent without a meeting pursuant to Section 228 of the
Delaware General Corporation Law (unless initiated or not opposed by the Company);
(B) for a period of one year from the Closing, request the Company (or its directors,
officers, employees or agents), directly or indirectly, to amend or waive any provisions of Section
6(a) or of this Agreement (including this Section 6(a)(i)(B)), or otherwise seek any modification
to or waiver of any of the Buyer Group’s agreements or obligations under Section 6(a) of this
Agreement; or
(C) for a period of one year from the Closing, encourage or render advice to or make any
recommendation or proposal to any person to engage in any of the actions covered by this Section
6(a) (including this clause(C)).
(ii) If any time, without the consent of the Company Board, the Buyer Group’s Beneficial
Ownership of Common Stock and economic exposure pursuant to contracts in the Common Stock exceeds
24% of the issued and outstanding Common Stock (other than as a result of the Company’s net
purchases of Common Stock exceeding its issuance for the period subsequent to the Closing to the
point in time in question), the provisions of Section 203 (taken in its entirety) shall govern with
respect to each member of the Buyer Group engaging in any “business combination” with the Company,
as if the transaction that results in such excess share ownership had caused the Buyers to become
“interested stockholders” under Section 203, as such terms are defined in Section 203.
(iii) For a period of one year from the Closing, each member of the Buyer Group shall agree to
give to the Company: (A) one business day prior review of any proposed press release, public
announcement or of any filing with the SEC relating to the Company by any member of the Buyer Group
(but the Company shall have no right to comment and shall not make any public statements in
response in the interim unless required by law, in which event the notice period shall thereupon
terminate), and (B) seven business days advance notice prior to soliciting other holders of Common
Stock to take stockholder action with respect to a proposed election of director, or participating
in a business combination with the Company (but the Company shall have no right to comment and
shall not make any public statements in response in the interim unless required by law, in which
event the notice period shall thereupon terminate). During such seven day period, the Company will
not adopt a shareholder rights plan or amend any charter or bylaw provisions, or take any other
corporate action, to restrict shareholder rights.
(iv) The Company and Buyers agree that the Company, in addition to any other remedy to which
it may be entitled in law or in equity, shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of Section 6(a) of this Agreement and to compel specific
performance of Section 6(a) of this Agreement, without the need for proof of actual damages.
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(b) Board Representation. (i) The Company agrees at its next regularly scheduled
meeting (which are scheduled on a quarterly basis) of the Company Board occurring after the Closing
to elect Xxxxxxx Xxxxxxxx (“Buyers’ Nominee”) as a director of the Company and that the Company’s
Nominating and Corporate Governance Committee will propose the Buyers’ Nominee for election as a
director with a term expiring at the 2008 Annual Meeting of Shareholders of the Company. The
Buyers warrant that the Buyers’ Nominee meets each of the criteria set forth in Section 6(b)(ii)
hereof. Subject to its fiduciary duties, the Company’s Board of Directors will nominate the
Buyers’ Nominee (or, if the Buyers’ Nominee is unable or unwilling to serve, a successor as
contemplated by Section 6(b)(ii)) for election at each meeting at which time the Buyer’s nominee is
up for election (or in each action by written consent in lieu of a meeting) of stockholders of the
Company for the election of directors.
(ii) If the Buyer’s Nominee (or such a successor) is no longer a director of the Company as
contemplated by paragraph 6(b)(i), the Buyer may propose to the Company as a nominee for election
as a director of the Company a person with reasonable qualifications who is not a former director,
officer or employee of the Company and is not engaged in activities which present a material
conflict of interest with the Company, in which event, with the Company’s consent (such consent not
to be unreasonably withheld), such person will be proposed to the Nominating and Corporate
Governance Committee.
(iii) The Company will use its best efforts to cause the Buyer’s Nominee or any such successor
nominated as provided in this Section 6(b) to be elected by the stockholders of the Company and
will solicit proxies in favor of the Buyer’s Nominee or any such successor at each meeting (or in
each action by written consent in lieu of a meeting) of stockholders of the Company.
(iv) If the Company does not accept a Buyer designee as provided in paragraph 6(b)(ii), the
process set forth therein shall be repeated so long as necessary to find a successor candidate
acceptable to both the Buyer and the Company.
(v) The Company’s obligations under this Section 6(b) shall terminate when the Buyer
Beneficially Owns less than 15% of the Company’s outstanding shares of Common Stock (including as
Beneficially Owned, for purposes of this Section 6(b)(v) only, the Exposure Shares).
(c) Registration Rights. (i) (A) Within thirty (30) days after the Closing Date (the
“Filing Deadline”), the Company shall prepare and file with the SEC a “Shelf” Registration
Statement (the “Registration Statement”) covering the resale of all Common Stock constituting
Purchased Shares and all other Common Stock held by the Buyers held as of the date hereof
(“Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415.
The Company shall also include, as reasonably requested from time to time, any shares of Common
Stock acquired after the date hereof by the Buyers in the Registration Statement; any such shares
so included shall be deemed Registrable Securities for purposes of this Agreement. The
Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register
for resale the Common Stock on Form S-3, in which case such registration shall be on
another appropriate form). In the event that the Registration Statement has not been filed by
the Filing Deadline, the Company will pay the Buyers a fee equal to 0.5% of the Purchase Price.
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(B) The Company shall use its best efforts to cause the Registration Statement to be declared
effective upon filing with the SEC or as promptly as possible after the filing thereof and shall
use its best efforts to keep the Registration Statement continuously effective under the ‘33 Act
until such time as the Buyers receive an opinion acceptable to Buyer from Company counsel to the
effect that the Registrable Securities may be resold in a transaction exempt from the registration
requirements of the ‘33 Act without regard to any volume or other restrictions under the ‘33 Act
(the “Effectiveness Period”). In the event that the Registration Statement is not declared
effective within one hundred twenty (120) days following the Closing (the “Effectiveness
Deadline”), the Company will pay the Buyers a fee equal to 0.5% of the Purchase Price. In
addition, every sixty (60) days from the Effectiveness Deadline until the Registration Statement is
declared effective, the Company shall pay to the Buyers an amount in cash equal to 0.5% of the
Purchase Price, accruing daily and prorated for any partial period; provided,
however, that the aggregate amount of liquidated damages for which the Company is liable
pursuant to Sections 6(c)(i)(A)-(B) shall not exceed five percent (5%) of the Purchase Price. The
payment of any of these fees does not relieve the Company of its registration obligations under
this subsection (c).
(C) The Company shall notify the Buyer in writing promptly that the Registration Statement has
become effective.
(D) Notwithstanding anything to the contrary in this Agreement, the Company may, one time in
any twelve (12) month period, for up to a maximum of seventy-five (75) days, delay the filing or
effectiveness of a Registration Statement or suspend the effectiveness of a Registration Statement
if the Company shall have determined in good faith, upon advice of counsel, that it would be
required to disclose any significant corporate development which disclosure would have a material
effect on the Company.
(E) So long as the Company pursues in good faith the provisions of this Section 6(c), the fees
provided for in Section 6(c) shall be treated as liquidated damages and the Company shall have no
further liability to the Buyers, provided however, that if the Company is not so
pursuing the provisions of Section 6(c) in good faith, the Buyers shall be entitled to claim
damages in addition to the fees owed under Section 6(c).
(ii) Registration Procedures. In connection with the Company’s registration
obligations hereunder, the Company shall:
(A) Not less than three business days prior to the filing of a Registration Statement or any
related prospectus or any amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), the Company shall (I) furnish to
the Buyers copies of all such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject to the review of the Buyer
(it being understood that such review must be completed within three business days of receipt of
the applicable documents), and (II) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel, to conduct a
reasonable investigation within the meaning of the ’33 Act.
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(B) (I) Prepare and file with the SEC such amendments, including post-effective amendments, to
each Registration Statement and the prospectus used in connection therewith as may be necessary to
keep the Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period and prepare and file with the SEC such additional Registration
Statements in order to register for resale under the ‘33 Act all of the Registrable Securities;
(II) cause the related prospectus to be amended or supplemented by any required prospectus
supplement, and as so supplemented or amended to be filed; (III) respond promptly to any comments
received from the SEC with respect to the Registration Statement or any amendment thereto; and (IV)
comply in all material respects with the provisions of the ‘33 Act with respect to the disposition
of all Registrable Securities covered by the Registration Statement during the applicable period in
accordance with the intended methods of disposition by the Buyers thereof set forth in the
Registration Statement as so amended or in such prospectus as so supplemented.
(C) Notify the Buyers promptly of any of the following events: (I) the SEC notifies the
Company whether there will be a “review” of any Registration Statement; (II) the SEC comments in
writing on any Registration Statement covering Registrable Securities; (III) any Registration
Statement or any post-effective amendment is declared effective; (IV) the SEC or any other Federal
or state governmental authority requests any amendment or supplement to any Registration Statement
or prospectus or requests additional information related thereto; (V) the SEC issues any stop order
suspending the effectiveness of any Registration Statement or initiates any proceedings for that
purpose; (VI) the Company receives notice of any suspension of the qualification or exemption from
qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or
threat of any proceeding for such purpose; or (VII) the financial statements included in any
Registration Statement become ineligible for inclusion therein or any statement made in any
Registration Statement or prospectus or any document incorporated or deemed to be incorporated
therein by reference is untrue in any material respect or any revision to a Registration Statement,
prospectus or other document is required so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(D) Furnish to the Buyers, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent
requested by such person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the SEC.
(E) Promptly deliver to the Buyers, without charge, as many copies of the prospectus or
prospectuses (including each form of prospectus) and each amendment or supplement thereto as the
Buyers may reasonably request.
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(F) Prior to any public offering of Registrable Securities, use its commercially reasonable
best efforts to register or qualify or cooperate with the Buyers in connection with the
registration or qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as the Buyers requests in writing, to keep each such
registration or qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration Statement.
(G) Upon the occurrence of any event described in Section 6(b)(ii)(C), promptly prepare a
supplement or amendment, including a post-effective amendment, to the Registration Statement or a
supplement to the related prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as thereafter delivered,
neither the Registration Statement nor such prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(H) Comply with all applicable rules and regulations of the SEC.
(I) Enter into and perform its obligations under an underwriting agreement, in usual and
customary form, including, without limitation, by providing customary legal opinions, comfort
letters and indemnification and contribution obligations, in the event that the Buyers notify the
Company of their intent to resell the Registrable Securities pursuant to an underwritten offering
and of the selected underwriter(s) for such offering.
In connection with the registration of the Registrable Securities, it shall be a condition
precedent to the obligations of the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities that the Buyers shall furnish to the Company such
information reasonably requested by it to complete the Registration Statement.
(iii) Registration Expenses. The Company shall pay the following expenses incident to
the performance of or compliance with its obligations under Section 6(c) of this Agreement: (A) all
registration and filing fees and expenses, including without limitation those related to filings
with the SEC and in connection with applicable state securities or Blue Sky laws, (B) printing
expenses (including without limitation expenses of printing prospectuses requested by the Buyer),
(C) fees and expenses of all persons retained by the Company in connection with the consummation of
the transactions contemplated by this Agreement, (D) all listing fees to be paid by the Company to
the New York Stock Exchange and (E) the reasonable fees and expenses of one counsel for the Buyers.
The Company shall not be obligated to pay, if applicable, any underwriting discounts and
commissions with respect to the sale of any Common Stock.
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(iv) (A) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Buyer, the officers, directors, partners, members, agents, and employees of each of them, each person
who controls each Buyer (within the meaning of Section 15 of the ‘33 Act or Section 20 of the
Exchange Act) and the officers, directors, partners, members, agents and employees of each such
controlling person, to the fullest extent permitted by applicable law, from and against any and all
losses, as incurred, arising out of or relating to any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any prospectus or any form of prospectus or
in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that (i) such untrue statements, alleged untrue
statements, omissions or alleged omissions are based solely upon information regarding the Buyer
furnished in writing to the Company by any Buyer expressly for use therein, or to the extent that
such information relates to any Buyer’s proposed method of distribution of Common Stock and was
reviewed and approved in writing by any Buyer expressly for use in the Registration Statement, such
prospectus or such form of prospectus or in any amendment or supplement thereto or (ii) in the case
of an occurrence of an event of the type specified in Section 6(c)(ii)(C), the use by any Buyer of
an outdated or defective prospectus after the Company has notified the Buyers in writing that the
prospectus is outdated or defective. The Company shall notify the Buyers promptly of the
institution, threat or assertion of any proceeding of which the Company is aware in connection with
the transactions contemplated by this Agreement.
(B) Indemnification by Buyers. The Buyers, jointly and severally, shall indemnify and
hold harmless the Company, its directors, officers, agents and employees, each person who controls
the Company (within the meaning of Section 15 of the ‘33 Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling persons, to the fullest extent
permitted by applicable law, from and against all losses (as determined by a court of competent
jurisdiction in a final judgment not subject to appeal or review) arising solely out of any untrue
statement of a material fact contained in the Registration Statement, any prospectus, or any form
of prospectus, or in any amendment or supplement thereto, or arising solely out of any omission of
a material fact required to be stated therein or necessary to make the statements therein (in the
case of any prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so furnished in writing by
any Buyer to the Company specifically for inclusion in such Registration Statement or such
prospectus or to the extent that (i) such untrue statements or omissions are based solely upon
information regarding such Buyer furnished in writing to the Company expressly for use therein, or
to the extent that such information relates to any Buyer or such Buyer’s proposed method of
distribution of Common Stock and was reviewed and expressly approved in writing by the Buyer
expressly for use in the Registration Statement, such prospectus or such form of prospectus or in
any amendment or supplement thereto or (ii) in the case of an occurrence of an event of the type
specified in Section 6(c)(ii)(C), the use by any Buyer of an outdated or defective prospectus after
the Company has notified such Buyer in writing that the prospectus is outdated or defective. In no
event shall the liability of the Buyers hereunder be greater in amount than the dollar amount of
the net proceeds received by the Buyers upon the sale of the Common Stock giving rise to such
indemnification obligation.
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(C) Conduct of Indemnification Proceedings. If any proceeding shall be brought
or asserted against any person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations
or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (ii) the Indemnifying Party shall have failed promptly to
assume the defense of such proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such proceeding; or (iii) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such
proceeding effected without its written consent, which consent shall not be unreasonably withheld.
No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such proceeding in a manner
not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten
business days of written notice thereof to the Indemnifying Party (regardless of whether it is
ultimately determined that an Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined that such Indemnified
Party is not entitled to indemnification hereunder).
(D) Contribution. If a claim for indemnification under subsection (A) or (B) is
unavailable to an Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in
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connection with the actions, statements or omissions that resulted in such losses as well as
any other relevant equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or omission or
alleged omission of a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any losses shall be deemed to include, subject
to the limitations set forth in subsection (C), any reasonable attorneys’ or other reasonable fees
or expenses incurred by such party in connection with any proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided for in this Section
was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this subsection (D) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this subsection (D), the Buyers shall not
be required to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by the Buyers from the sale of the Common Stock subject to the
proceeding exceeds the amount of any damages that the Buyer has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ‘33 Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. TERMINATION
In the event that the Closing shall not have occurred on or before May 1, 2007 due to the
Company’s or any Buyer’s failure to satisfy the conditions set forth in Sections 5 above (and the
nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall
have the option to terminate this Agreement; provided that the Company shall have no right to
terminate this Agreement for the failure to meet the condition in Section 5(b) hereof. In the
event of a termination of this Agreement, funds held in Escrow, together with any interest earned
thereon, shall be immediately paid to the Buyers. In the event of termination of this Agreement
pursuant to this Section 7, no party will have any liability or any further obligation to any other
party, except that nothing in this Agreement releases, or may be construed as releasing, any party
to this Agreement from any liability or damage to any other party arising out of any party’s
default or breach under this Agreement.
8. MISCELLANEOUS
(a) Governing Law. This Agreement shall be construed in accordance with and governed
for all purposes by the laws of the State of New York applicable to contracts executed and to be
wholly performed within such State without giving effect to its conflicts of laws principles
thereof.
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(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction
(e) Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyers, the Company, their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or therein, neither the
Company nor the Buyers make any representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be amended other than by an instrument in writing
signed by the Company and the Buyer. No provision hereof may be waived other than by an instrument
in writing signed by the party against whom enforcement is sought.
(f) Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after deposit with an overnight
courier service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
| Xxxx Corporation | ||||
| 00000 Xxxxxxxxx Xxxx | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxxx X. Xxxxxxxxx | |||
| Executive Vice President and General Counsel | ||||
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with a copy to (for information purposes only):
| Winston & Xxxxxx LLP | ||||
| 00 Xxxx Xxxxxx Xxxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Facsimile: | 000-000-0000 | |||
| Attention: | Xxxxx X. Xxxx, Esq. | |||
If to the Buyers:
| c/o Icahn Associates Corp. | ||||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: | 000-000-0000 | |||
| Attn: | Xxxxx Xxxxxxxx, and | |||
| Xxxxx Xxxxxxx | ||||
with a copy to (for information purposes only):
| c/o Icahn Associates Corp. | ||||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: | 000-000-0000 | |||
| Attn: | Xxxx Xxxxxxx, Esq. | |||
or to such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of
such notice, consent, waiver or other communication, (ii) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (iii) provided by an overnight courier service
shall be evidence of personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. The Company and the Buyers
shall not assign this Agreement or any rights or obligations hereunder without the prior written
consent of the other party; provided that the Buyers may assign their rights and obligations
hereunder to any affiliate of Xxxx X. Icahn (although such assignment shall not relieve such Buyer
of its obligations under this Agreement).
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
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(i) Survival. The representations and warranties of the Buyers and the Company
contained in Sections 2 and 3 and the agreements and covenants of the Buyers and the
Company contained in sections forth in Sections 6 and 8 shall survive the Closing. In the
event this Agreement is terminated pursuant to Section 7, the agreements and covenants of the Buyer
and the Company contained in Sections 4, 6 and 8 shall be of no further force and effect except as
set forth in Section 7.
(j) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Buyer and the Company have caused their respective signature page to
this Stock Purchase Agreement to be duly executed as of the date first written above.
| XXXX CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | EVP & General Counsel | |||
| BUYERS: ICAHN PARTNERS LP |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
| ICAHN PARTNERS MASTER FUND LP |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
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| KOALA HOLDING LLC |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
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