STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, made and entered into this 6th day of
December, 2001 (the "Agreement"), by and among the entities named on Schedule A
hereto (individually, a "Seller" and, collectively, the "Sellers"), and Neuson
AG (the "Purchaser").
WITNESSETH:
WHEREAS, the Sellers are the beneficial owners of an aggregate of
378,399 shares of the common stock, $.10 par value per share (the "Shares"), of
Xxxx Company (the "Company"),
WHEREAS, the Sellers desire to sell privately to the Purchaser, and the
Purchaser desires to purchase privately from the Sellers, all upon the terms and
subject to the conditions set forth in this Agreement, the Shares,
WHEREAS, the Purchaser is purchasing the Shares privately from the
Sellers for its own account as principal for investment purposes only and not
with a view to, or for, resale or distribution thereof, and
WHEREAS, the State of Wisconsin has an anti-greenmail statute and the
Purchaser hereby acknowledges that it is not in discussions with the Company
regarding any agreement, understanding or arrangement for the Company to
purchase any or all of the Shares from the Purchaser and the Purchaser hereby
represents and confirms that the purchase by the Purchaser of the Shares is not
in any way an attempt by the Purchaser to pay "Greenmail" to the Sellers.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties herein contained, each of the Sellers
and the Purchaser hereby agree as follows:
1. Sale and Purchase of Shares.
(a) Each Seller hereby privately sells, and the Purchaser hereby
privately purchases from each Seller, the number of Shares set forth opposite
each Seller's name on Schedule A hereto.
(b) The purchase price for the Shares is $20.00 per Share, payable by
wire transfer of immediately available funds (to bank accounts designated by
each Seller on Schedule A hereto) concurrently with the execution of this
Agreement.
(c) Concurrently with the execution of this Agreement, each Seller
shall deliver to the Purchaser (or the Purchaser's agent) (i) an irrevocable
letter of instruction addressed to such Seller's brokerage firm instructing such
brokerage firm to deliver the Shares held in street name and purchased from such
Seller pursuant hereto
through the Depository Trust Company by "DWAC" delivery to DTC 997 for State
Street Bank, Boston, Account Number 5K68, Creditanstalt for credit to Neuson AG,
Vienna, Account Number 09566362100 and (ii) with respect to Shares held of
record and beneficially, a certificate or certificates representing such Shares
duly endorsed for transfer or accompanied by appropriate stock powers duly
executed.
(d) This transaction shall close simultaneously with the execution of
this Agreement by all the parties hereto at the offices of Xxxxxx Xxxxxxxx Frome
Xxxxxxxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as the Sellers and the Purchaser shall agree.
2. Representations and Warranties of the Sellers. Each Seller hereby
represents and warrants to the Purchaser severally, for itself only, as follows:
2.1 Ownership of Shares. The Shares set forth opposite the Seller's
name on Schedule A hereto are solely owned by such Seller, validly issued, fully
paid and non-assessable and are free and clear of any and all liens,
encumbrances, claims, charges and assessments and subject to no options,
agreements, or restrictions with respect to transferability.
2.2 Authorization. The Seller has all requisite power, legal capacity
and authority to enter into this Agreement and to assume and perform its
obligations hereunder. This Agreement when duly executed and delivered by the
Seller will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable remedies.
2.3 Available Information. The Seller acknowledges that it is familiar
with the business, financial condition and affairs of the Company and is
therefore able to determine fair value for the sale of the Shares and is not
relying on any information provided by the Purchaser.
3. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to each of the Sellers as follows:
3.1 Authorization. The Purchaser has all requisite power, legal
capacity and authority to enter into this Agreement and to assume and perform
its obligations hereunder. This Agreement when duly executed and delivered by
the Purchaser will constitute a legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by the principles governing the availability of
equitable remedies.
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3.2 Investment. The Purchaser is acquiring the Shares for Purchaser's
own account as principal, not as a nominee or agent, for investment purposes
only, and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part and no other person or entity has a direct or
indirect beneficial interest in the Shares. The Purchaser does not have any
contract, undertaking, agreement or arrangement with any person or entity to
sell, transfer or grant participations to such person or entity or to any third
person or entity with respect to any of the Shares including, but not limited
to, the Company.
3.3 Available Information. The Purchaser acknowledges that it is
familiar with the business, financial condition and affairs of the Company and
is therefore able to evaluate the merits and risks of a purchase of the Shares
and is not relying on any information provided by the Sellers.
4. Indemnification.
4.1 Indemnification by the Sellers. The Sellers shall, severally and
not jointly, indemnify and hold harmless the Purchaser from and against any and
all losses, liabilities, damages, demands, claims, suits, actions, judgments or
causes of action, assessments, costs and expenses including, without limitation,
interest, penalties, reasonable attorneys' fees, any and all reasonable expenses
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation (collectively, "Damages"), asserted
against, resulting to, imposed upon, or incurred or suffered by the Purchaser,
directly or indirectly, as a result of or arising from any inaccuracy in or
breach of any of the representations, warranties or agreements made in this
Agreement of the Sellers, or the non-performance of any covenant or obligation
to be performed by the Sellers under this Agreement (individually an
"Indemnifiable Claim" and collectively "Indemnifiable Claims" when used in the
context of the Purchaser as the Indemnified Party (as defined below)).
4.2 Indemnification by the Purchaser. The Purchaser shall indemnify and
hold each Seller harmless from and against any and all Damages asserted against,
resulting to, imposed upon, or incurred or suffered by such Seller, directly or
indirectly, as a result of or arising from any inaccuracy in or breach of any of
the representations, warranties or agreements made in this Agreement of the
Purchaser or the non-performance of any covenant or obligation to be performed
by the Purchaser under this Agreement (individually an "Indemnifiable Claim" and
collectively "Indemnifiable Claims" when used in the context of any Seller as
the Indemnified Party).
4.3 Indemnification of Affiliates. Without duplication of Damages, the
Purchaser and the Sellers, as the case may be, shall be deemed to have suffered
Damages arising out of or resulting from the matters referred to in subsection
4.1 or 4.2 above if the same shall be suffered by any parent, subsidiary or
Affiliate of the Purchaser or Sellers, as the case may be. "Affiliate" means,
with respect to any entity, a second entity that is controlled by, controls or
is under common control with, such first entity
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and shall include the officers and directors of such first entity. For purposes
of the foregoing, "control" of any entity means the power to direct the
management and policies of such entity, whether by the ownership of voting
securities or other beneficial interest, by contract or otherwise.
4.4 Procedure for Indemnification with Respect to Third Party Claims.
The party seeking indemnification (the "Indemnified Party") shall give the party
from whom indemnification is sought (the "Indemnifying Party") prompt written
notice of any third party claim, demand, assessment, suit or proceeding to which
the indemnity set forth in this Section 4 applies which notice shall describe
said claim in reasonable detail (the "Indemnification Notice"). Notwithstanding
the foregoing, the Indemnified Party shall not have any obligation to give any
notice of any assertion of liability by a third party unless such assertion is
in writing, and the rights of the Indemnified Party to be indemnified hereunder
in respect of any third party claim shall not be adversely affected by its
failure to give notice pursuant to the foregoing unless and, if so, only to the
extent that, the Indemnifying Party is materially prejudiced procedurally or
prejudiced in any way substantially thereby. The Indemnifying Party shall have
the right to control the defense or settlement of any such action subject to the
provisions set forth below in the event such claim solely involves an action for
monetary damages and could not reasonably be expected to affect the Indemnified
Party's business going forward, but the Indemnified Party may, at its election,
participate in the defense of any action or proceeding at its sole cost and
expense. Notwithstanding the foregoing, if there exists a conflict of interest
in the reasonable judgment of counsel for the Indemnified Party that would make
it inappropriate for the same counsel to represent both the Indemnified Party,
on the one hand, and the Indemnifying Party, on the other hand, in connection
with any Indemnifiable Claim, then the Indemnified Party shall be entitled to
retain its own counsel (which shall be a single counsel and any required local
counsel) as is reasonably satisfactory to the Indemnifying Party at the
Indemnifying Party's expense, but such counsel shall be employed only to deal
with matters directly affected by and involving the conflict of interest. In the
event that such Indemnified Party shall seek indemnification as provided herein,
such Indemnified Party shall make available to the Indemnifying Party, at its
expense, all witnesses, pertinent records, materials and information in the
Indemnified Party's possession or under the Indemnified Party's control relating
thereto as is reasonably required by the Indemnifying Party. Should the
Indemnifying Party fail to defend any such Indemnifiable Claim (except for
failure resulting from the Indemnified Party's failure to timely give notice of
such Indemnifiable Claim or failure to make the pertinent records, materials and
information in the Indemnified Party's possession or under the Indemnified
Party's control available to the Indemnifying Party, as reasonably required
thereby), then, in addition to any other remedy, the Indemnified Party may
settle or defend such action or proceeding through counsel of its own choosing
and may recover from the Indemnifying Party the amount of such settlement,
demand, or any judgment or decree and all of its costs and expenses, including
reasonable fees and disbursements of counsel. Except as permitted in the
preceding sentence, the Indemnifying Party shall not be liable for any
settlement effected without its written consent, which consent shall not be
unreasonably withheld; provided, however, if such approval is unreasonably
withheld, the liability of the Indemnifying
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Party shall be limited to the amount of the proposed compromise or settlement
and the amount of the Indemnified Party's reasonable counsel fees incurred in
defending such claim, as permitted by the preceding sentence, at the time such
consent is unreasonably withheld. Notwithstanding the preceding sentence, the
right of the Indemnified Party to compromise or settle any claim without the
prior written consent of the Indemnifying Party shall only be available if a
complete release of the Indemnifying Party is contemplated to be part of the
proposed compromise or settlement of such third party claim.
5. General Provisions.
5.1 Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter contained herein and supersedes all prior oral or written agreements, if
any, between the parties hereto with respect to such subject matter and, except
as otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder. Any amendments hereto or modifications
hereof must be made in writing and executed by each of the parties hereto. Any
failure by the Sellers or the Purchaser to enforce any rights hereunder shall
not be deemed a waiver of such rights.
5.2 Notices. All notices, requests, demands and other communications
given or made hereunder shall be in writing and shall be deemed to have been
duly given when delivered personally or by facsimile transmission, in either
case with receipt acknowledged, or one day after being sent by overnight courier
to the Sellers at their respective addresses set forth on Schedule A hereto or
the Purchaser at its address set forth on the signature page of this Agreement,
and, in each case, to such other address as any party shall have given to the
other party by similar notice.
5.3 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE PERSONAL AND
SUBJECT MATTER JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK LOCATED IN
THE BOROUGH OF MANHATTAN OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT. EACH PARTY HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW, (A) THE RIGHT TO TRIAL BY JURY; (B) ANY OBJECTION THAT
THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT; AND (C) ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FINAL JUDGEMENT
IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE
AND BINDING UPON EACH PARTY DULY SERVED WITH PROCESS THEREIN AND MAY BE ENFORCED
IN THE
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COURTS OF THE JURISDICTION OF WHICH EITHER PARTY OR ANY OF THEIR PROPERTY IS
SUBJECT, BY A SUIT UPON SUCH JUDGEMENT.
5.4 Binding Effect; Assignment. This Agreement and the various rights
and obligations arising hereunder shall inure to the benefit of and be binding
upon the Sellers and the Purchaser and their respective successors and assigns.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be transferred or assigned (by operation of law or otherwise) by any of
the parties hereto without the prior written consent of the other parties
hereto, provided that nothing herein shall limit the Purchaser's ability to
transfer the Shares without consent following the close of the transaction
hereunder. Any transfer or assignment of any of the rights, interests or
obligations hereunder in violation of the terms hereof shall be void and of no
force or effect.
5.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by virtue of any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the maximum extent
possible.
5.6 Survival of Representations and Warranties. All representations and
warranties made by the parties to this Agreement shall survive the execution and
delivery of this Agreement.
5.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
(Remainder of this page intentionally left blank.)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
SELLERS:
NEWCASTLE PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: General Partner
NEWCASTLE FOCUS FUND II, L.P.
By: Newcastle Capital Management, L.P.
By: Newcastle Capital Group, L.L.C.,
Its General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: General Partner
CIC EQUITY PARTNERS, LTD.
By: SLP Consultants, Inc.,
Its General Partner
By: /s/ Xxxx XxXxxxxx
-----------------------------------
Name: Xxxx XxXxxxxx
Title: President
PURCHASER:
NEUSON AG
By: /s/ Xxxx Helletzgruber
-----------------------------------
Name: Xxxx Helletzgruber
Title: Managing Director
Address of Purchaser:
A-4060 Linz-Leonding
Austria, Xxxxxxxxxxxxxxx 00
0
Schedule A
Number of Shares Bank Account Information for
Name and Address of Seller of Common Stock Purchase Price Wiring of Purchase Price
-------------------------- --------------- -------------- -----------------
Newcastle Partners, L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000 126,599 $2,531,980 See below
Newcastle Focus Fund II, L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000 154,000 $3,080,000 See below
CIC Equity Partners, Ltd.
Three Lincoln Centre
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000 97,800 $1,956,000 See below
--------- ----------
TOTAL 378,399 $7,567,980
Fed Funds Wire Instructions for:
Newcastle Partners, L.P. and Newcastle Focus Fund II, L.P.
Xxxx xx Xxxxxxx XX, Xxxxxxx, XX 00000
ABA# 121 000 358
For Credit To:
Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
A/C# 406-15536
For Further Credit To:
Newcastle Partners, L.P.
A/C# 118-13527
Newcastle Focus Fund II, LP
A/C# 118-14720
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Wire Instructions for
CIC Equity Partners, LTD.:
First Union National Bank
Roanoke, Virginia
ABA #000000000
Account of First Clearing Corporation
Account #5050000000631
For Further Credit to:
CIC Equity Partners, Ltd.
A/C# 1975-8566
