EXHIBIT 1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of September 23, 2005, is entered
into between WLR RECOVERY FUND III, L.P., a Delaware limited partnership (the
"Purchaser"), with an address of 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and XXXXXX CORPORATION, a Nevada corporation (the "Selling Stockholder"), with
an address of 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000.
WHEREAS, the Purchaser is prepared to purchase from the Selling
Stockholder and the Selling Stockholder is prepared to sell to the Purchaser the
Selling Stockholder's shares of capital stock of Safety Components
International, Inc., a Delaware corporation ("Safety Components") whose shares
trade on the OTC Bulletin Board under the symbol "SAFY", on the terms and
conditions herein;
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SECURITIES; CLOSING; ESCROW.
(a) Subject to the terms and conditions herein, the Selling
Stockholder shall sell to the Purchaser, and the Purchaser shall purchase from
the Selling Stockholder at the Closing (defined below), 4,162,394 shares (the
"Purchased Shares") of the common stock, par value $0.01 per share ("Common
Stock"), of Safety Components free and clear of all security interests, liens or
encumbrances other than those imposed by the applicable securities laws. In
consideration for the Purchased Shares, at Closing, the Purchaser shall pay the
Selling Stockholder a purchase price in immediately available funds of U.S.
$12.30 per share, or U.S. $51,197,446 in the aggregate (the "Purchase Price").
The sale, assignment and transfer of the Purchased Shares will be made without
recourse, representation or warranty of any kind by the Selling Stockholder,
express or implied, except as expressly set forth herein.
(b) All dividends or distributions (whether in cash, property,
securities, rights or otherwise) declared or paid with respect to the Purchased
Shares after the date hereof and prior to Closing (the "Distributions") shall be
payable to the Purchaser at the Closing concurrently with the transfer of the
Purchased Shares together with all accrued interest thereon while held in
escrow. All interest accrued on the Purchase Price while held in escrow (the
"Accrued Interest") as required by the terms hereof shall be paid to the Selling
Stockholder at the Closing concurrently with the payment of the Purchase Price
to the Selling Stockholder. At the Closing, the Selling Stockholder shall make a
payment to the Purchaser equal to the interest accrued on the amount borrowed by
the Purchaser solely to fund the deposit of the Purchase Price for up to the
first eight days after the initial deposit thereof with the Escrow Agent (such
eight-day period, the "Maximum Borrowing Period") at an interest rate not to
exceed the One Month LIBOR rate plus one hundred basis points based on a 365 day
year (the "Borrowing Factor Payment"). One Month LIBOR Rate means the rate per
annum equal to the one-month London interbank offered
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rate for United States dollars, as of the date hereof, as reflected in the
"Money Rates" section of The Wall Street Journal. At the Closing, the Purchaser
shall provide the Selling Stockholder with a written statement of the amount of
the Borrowing Factor Payment and the supporting calculation therefor.
(c) If a stock split, stock dividend or reclassification occurs
prior to the Closing, then the number of shares which constitutes the Purchased
Shares and the Purchase Price shall be appropriately and equitably adjusted so
as to maintain the proportionate number of Purchased Shares without changing the
aggregate Purchase Price.
(d) Upon the execution hereof or within one business day thereafter
(or such later date as the parties may agree in writing), the Purchaser, the
Selling Stockholder and CitiBank, N.A. (the "Escrow Agent") shall enter into an
escrow agreement, substantially in the form attached hereto as Exhibit A, with
such changes thereto as may be reasonably required by the Escrow Agent
consistent with the terms hereof as a condition to the execution thereof (the
"Escrow Agreement"). Upon execution of the Escrow Agreement (or such later date
or time as the parties may agree in writing), (i) the Selling Stockholder shall
deliver to the Escrow Agent the stock certificate it holds in definitive form
which represents the Purchased Shares, together with a stock power duly endorsed
in blank, and (ii) the Purchaser shall deliver to the Escrow Agent, by wire
transfer to the account designated by the Escrow Agent in writing to the
Purchaser the amount of the full Purchase Price. During the term of this
Agreement, the Selling Stockholder shall also deliver to the Escrow Agent any
Distributions it receives. Upon receipt thereof, the Escrow Agent shall hold,
invest and disburse the certificate representing the Purchased Shares, any
Distributions, the Purchase Price and other Escrowed Property (as defined in the
Escrow Agreement) in accordance with the terms and provisions of the Escrow
Agreement. At all times prior to the Closing, the Purchaser shall have no rights
as a stockholder in Safety Components with respect to the Purchased Shares by
virtue of this Agreement or otherwise, and all such rights, including the right
to vote the Purchased Shares, shall remain with the Selling Stockholder.
(e) Upon the conditions set forth in Sections 6(a)(ii), 6(a)(iii),
6(a)(iv), 6(b)(ii), 6(b)(iii), 6(b)(iv) and 6(b)(v) herein being satisfied,
either the Purchaser or the Selling Stockholder may execute and deliver to the
Escrow Agent the Closing Notice referred to in Section 4(b) of the Escrow
Agreement (with a copy to the other party) authorizing the Closing deliveries
provided for herein. If a party to this Agreement receives a copy of a Closing
Notice, it may at any time within three (3) business days thereafter give a
Closing Notice Objection (as defined in the Escrow Agreement) to the Escrow
Agent (with a copy to the other party) if any of its conditions precedent under
Section 6 hereof to its obligation to consummate the transactions contemplated
hereby have not been satisfied as of such time.
2. CLOSING. The transfer of the Purchased Shares, together with any
Distributions (including any earnings thereon while held in escrow) and payment
of the Purchase Price and the Accrued Interest (the "Closing") will occur no
later than 10:00 a.m. New York time on the fourth business day (or the next
business day thereafter if it is a legal holiday) after the conditions set forth
in Section 6 have been satisfied or waived by the party entitled to the benefit
thereof. The Closing shall take place at the offices of Xxxxx Xxxxxx Xxxxxx LLP,
Rochester, New York, or at such other time or location as the parties shall
mutually agree. At the Closing (i) the Selling Stockholder shall instruct the
Escrow Agent to deliver to the Purchaser the stock certificate it
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holds in definitive form which represents the Purchased Shares, together with a
stock power duly endorsed in blank, and any Distributions (including any
earnings thereon while held in escrow) and (ii) the Purchaser shall instruct the
Escrow Agent to deliver to the Selling Stockholder, by wire transfer to an
account designated by the Selling Stockholder in writing to the Purchaser and
the Escrow Agent (not less than two days prior to the Closing) the amount of the
full Purchase Price together with the Accrued Interest. The time and date of
such payment and delivery referred to in this Agreement as the "Closing Date."
3. REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDER. The Selling
Stockholder represents and warrants to the Purchaser as follows:
(a) the Selling Stockholder is a corporation validly existing and in
good standing under the laws of Nevada and has all the requisite power and
authority to execute and deliver this Agreement and the Escrow Agreement (the
"Transaction Agreements") and, subject to the Vote, to carry out all the terms
and provisions hereof and thereof to be carried out by it;
(b) Safety Components is a corporation validly existing and in good
standing under the laws of Delaware;
(c) the execution and delivery of the Transaction Agreements by the
Selling Stockholder and the performance of the Selling Stockholder's obligations
hereunder and thereunder have been duly authorized by all necessary corporate
action;
(d) the Transaction Agreements have been duly executed and delivered
by the Selling Stockholder and constitute the valid and binding obligations of
the Selling Stockholder;
(e) the Selling Stockholder owns of record and beneficially all of
the Purchased Shares free and clear of all security interests, liens and
encumbrances (except for any restrictions which may apply under applicable
securities laws), and there are no stockholders agreements, voting agreements or
proxies to which the Purchased Shares are subject;
(f) there are no outstanding options, warrants, rights to acquire or
subscribe to, or calls or commitments of any character whatsoever to which the
Selling Stockholder is a party or by which it is bound, requiring the issuance
or sale of shares of any class of capital stock or other equity securities of
Safety Components or securities or rights convertible into or exchangeable for
such shares or other equity securities of Safety Components;
(g) other than the Purchased Shares, the Selling Stockholder is not
the beneficiary of any options, warrants, rights to acquire or subscribe to, or
calls or commitments for, any shares of any class of capital stock or other
equity securities of Safety Components ("Safety Components Securities");
(h) the Purchased Shares represent all of the Safety Components
Securities owned by the Selling Stockholder on the date hereof;
(i) the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, (i) conflict with the
certificate of incorporation or by-laws
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(or comparable organizational documents) of either of the Selling Stockholder or
Safety Components, (ii) to the knowledge of the Selling Stockholder, result in
any breach, violation or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or creation or
acceleration of any obligation or right of a third party or loss of a benefit
under, or result in the creation of any security interests, liens or
encumbrances upon any of the properties or assets of either the Selling
Stockholder or Safety Components under, any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license or other authorization applicable to either of
the Selling Stockholder or Safety Components or their respective properties or
assets or (iii) subject to the governmental filings and other matters referred
to in the following sentence, to the knowledge of the Selling Stockholder,
conflict with or violate any judgment, order, decree, law, statute, code,
ordinance, regulation, rule, principle of common law or other legally
enforceable obligation imposed by any federal, state or local or foreign
government, any court, administrative, regulatory or other governmental agency,
commission or authority or any non-governmental United States or foreign
self-regulatory agency, commission or authority or any arbitral tribunal (each,
a "Governmental Entity") applicable to the Selling Stockholder or Safety
Components or their respective properties or assets, other than, in the case of
clauses (ii) and (iii), any such conflicts, breaches, violations, defaults,
rights, losses, security interests, liens or encumbrances that, individually or
in the aggregate, would not reasonably be expected to have or result in a
material adverse effect on the Selling Stockholder or Safety Components and that
would not prevent or materially delay the consummation of the transactions
contemplated by this Agreement. No consent, approval, order or authorization of,
action by or in respect of, or registration, declaration or filing with, any
Governmental Entity or any third party is required by the Selling Stockholder or
Safety Components in connection with the execution and delivery of this
Agreement by the Selling Stockholder or the consummation by the Selling
Stockholder of the transactions contemplated hereby, except for: (i) the filing
with the Commission (as defined herein) of (A) an information statement pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act")and (B)
such reports under the Exchange Act, as may be required in connection with this
Agreement and the transactions contemplated hereby; (ii) the Vote (as defined
herein) and (iii) the filing of a premerger notification and report form by the
Selling Stockholder under the HSR Act (as defined herein); and
(j) following the Closing, (i) the payments due to the Selling
Stockholder from Safety Components under the Tax Sharing and Indemnity
Agreement, dated as of March 19, 2004, by and between the Selling Stockholder
and Safety Components shall not exceed $450,000 and (ii) to the knowledge of the
Selling Stockholder, Safety Components shall have no obligation after the
Closing Date to make any other payments to the Selling Stockholder pursuant to
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license or other
authorization.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents, warrants and acknowledges to the Selling Stockholder as follows:
(a) the Purchaser is a limited partnership validly existing and in
good standing under the laws of the State of Delaware and has all the requisite
power and authority to execute and deliver the Transaction Agreements and to
carry out all the terms and provisions thereof to be carried out by it;
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(b) the execution, delivery and performance of the Transaction
Agreements by the Purchaser has been duly authorized by all necessary action;
(c) the Transaction Agreements have been duly executed and delivered
by the Purchaser and constitute the valid and binding obligations of the
Purchaser enforceable in accordance with its terms;
(d) the Purchaser has been advised that the Purchased Shares have
not been registered under the Securities Act of 1933, as amended (the "Act"), or
under applicable state blue sky laws and that the certificate evidencing the
Purchased Shares will be legended accordingly;
(e) the Purchaser is acquiring the Purchased Shares for its own
account;
(f) the Purchaser is an experienced and sophisticated investor, is
able to fend for itself in the transactions contemplated by this Agreement, and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the risks and merits of acquiring the Shares;
(g) the Purchaser is aware that the Purchased Shares may not be sold
unless such Purchased Shares are registered pursuant to the Act and state
securities laws or qualify for an exemption from such registration; and
(h) the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, (i) conflict with the
partnership agreement (or comparable organizational documents) of the Purchaser,
(ii) result in any breach, violation or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
creation or acceleration of any obligation or right of a third party or loss of
a benefit under, or result in the creation of any security interests, liens or
encumbrances upon any of the properties or assets of the Purchaser under, any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license or other
authorization by which the Purchaser is bound or (iii) conflict with or violate
any judgment, order, decree, law, statute, code, ordinance, regulation, rule,
principle of common law or other legally enforceable obligation imposed by any
Governmental Entity on the Purchaser or its properties or assets, other than, in
the case of clauses (ii) and (iii), any such conflicts, breaches, violations,
defaults, rights, losses, security interests, liens or encumbrances that,
individually or in the aggregate, would not reasonably be expected to prevent or
materially delay consummation of the transactions contemplated by this
Agreement; and
(i) notwithstanding anything herein or elsewhere to the contrary,
except as expressly set forth herein, the Selling Stockholder makes no
representation or warranty of any kind in connection with, and shall have no
responsibility with respect to, the financial statements, financial condition,
financial performance, future prospects or plans or any other aspect of Safety
Components (collectively, "Safety Components Information") or the Purchased
Shares; the Purchaser has independently, and without reliance on the Selling
Stockholder, reviewed such documents and information as it has deemed
appropriate (including the publicly available registration statements, reports
and documents relating to Safety Components filed with the
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Commission (as defined herein) or non-public documents which have been made
available to it by Safety Components), and made its own financial analysis and
decision to enter into this Agreement and to purchase the Purchased Shares in
accordance with the terms hereof.
5. COVENANTS OF THE PARTIES.
(a) Efforts and Actions to Cause Closing to Occur; HSR Act.
(i) Prior to the Closing, upon the terms and subject to the
conditions of this Agreement, the parties hereto shall use their best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done all
things necessary, proper or advisable (subject to any applicable laws) to
consummate the Closing as promptly as practicable including, but not limited to
the preparation and filing of all forms, registrations and notices required to
be filed to consummate the Closing and the taking of such actions as are
necessary to obtain any requisite approvals, authorizations, consents, orders,
licenses, permits, qualifications, exemptions or waivers by any third party or
any Governmental Entity. In addition, no party hereto shall take any action
after the date hereof that could reasonably be expected to materially delay the
obtaining of, or result in not obtaining, any permission, approval or consent
from any such Governmental Entity or other person required to be obtained prior
to Closing.
(ii) Within 10 business days following the execution of this
Agreement, the Purchaser and the Selling Stockholder shall both file with the
Federal Trade Commission and the Department of Justice the notification and
report form required of them under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended ("HSR Act"), for the consummation of the transactions
contemplated by this Agreement. The Purchaser and the Selling Stockholder shall
both promptly submit any additional materials that may be reasonably requested
by governmental officials in connection therewith pursuant to the HSR Act and
exercise best efforts to obtain early termination of the waiting period, and
otherwise obtain prompt clearance, under the HSR Act. Each of the Purchaser and
the Selling Stockholder shall give the other reasonably prompt notice of any
communication with, and any proposed understanding, undertaking or agreement
with, any governmental authority regarding any such filings or any such
transaction. Neither the Purchaser nor the Selling Stockholder, shall
independently participate in any meeting, or engage in any substantive
conversation, with any governmental authority in respect of any such filings,
investigation or other inquiry without giving the other prior notice (if
practicable) of the meeting and discussing with the Purchaser or the Selling
Stockholder. The Purchaser and the Selling Stockholder shall promptly notify the
Escrow Agent (with a copy to the other party) immediately upon the expiration or
earlier termination of the waiting period under the HSR Act. The Purchaser and
the Selling Stockholder shall share equally the filing fees by the parties
pursuant to the HSR Act.
(iii) Notwithstanding the foregoing or any other covenant
herein contained, nothing in this Agreement shall be deemed to require the
Purchaser to divest or hold separate any assets or agree to limit its normal and
regular operations after the Closing. To the knowledge of the Purchaser, there
is not any aspect of its businesses that may require any such action on its part
that would reasonably be expected to be imposed by any Governmental Authority as
a condition to the expiration or termination of the waiting period under or
clearance under the HSR Act.
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(b) Notification of Certain Matters. The parties hereto shall give
notice to the other party promptly after becoming aware of (i) the occurrence or
non-occurrence of any event whose occurrence or non-occurrence would be likely
to cause either (A) any representation or warranty contained in this Agreement
to be untrue or inaccurate in any material respect at any time from the date
hereof to the Closing Date or (B) any condition set forth in Section 6 to be
unsatisfied in any material respect at any time from the date hereof to the
Closing Date and (ii) any material failure of such party or any officer,
director, employee or agent thereof, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that (x) the delivery of any notice pursuant to this Section
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice and (y) the failure to give such notice shall not be
required from and after the time the party to whom such notice is to be given
has actual knowledge of the information required to be included in such notice.
If a party hereto shall give notice to the other party hereto that a
representation or warranty of such other party contained in this Agreement is
untrue or inaccurate in any material respect, then such other party shall have
15 days to investigate and, if applicable, cure such untrue or inaccurate
representation or warranty.
(c) Stockholder Approval.
(i) Within 10 days following the execution and delivery of
this Agreement, the Selling Stockholder shall prepare and file with the
Securities and Exchange Commission (the "Commission") an information statement
(together with any amendment or supplement thereto, the "Information Statement")
to be used in connection with the consent of the stockholders of the Selling
Stockholder, and shall promptly use its commercially reasonable best efforts to
respond to the comments of the Commission, if any, in connection therewith and
to furnish all information required in the Information Statement. The Selling
Stockholder shall cause the definitive Information Statement to be mailed
promptly to the stockholders of the Selling Stockholder, and, if necessary under
the Exchange Act, after the definitive Information Statement shall have been so
mailed, to promptly circulate amended, supplemental or supplemented materials
thereto.
(ii) The Selling Stockholder shall, in accordance with
applicable law, seek the written consent of the stockholders of the Selling
Stockholder as promptly as practicable following the mailing of the definitive
Information Statement, for the purpose of voting upon or consenting to (as
applicable) the sale of the Purchased Shares on the terms and conditions herein.
The Selling Stockholder shall take all commercially reasonable actions to secure
the vote or consent of stockholders required by applicable law and by the
Certificate of Incorporation or the By-laws of the Selling Stockholder to
approve the sale of the Purchased Shares (the "Vote"). The Selling Stockholder
shall notify in writing the Purchaser upon the stockholders of the Selling
Stockholder approving the sale of the Purchased Shares pursuant to the terms
hereof.
(d) Election of Purchaser's Representatives to Safety Components
Board of Directors. Promptly after the execution and delivery of this Agreement,
the Purchaser shall provide Safety Components with the names of the
representatives to be elected to the Safety Components Board of Directors and
such information as Safety Components may require in order to have such
representatives elected to its Board of Directors and to comply prior to Closing
with Section 14(f) of the Exchange Act. Immediately following the Closing, until
the Purchased Shares are issued in the name of the Purchaser, the Selling
Stockholder shall vote the
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Purchased Shares in the manner required to cause the representatives so
designated by the Purchaser to constitute the majority of the directors on the
Board of Directors of Safety Components (exclusive of the Selling Stockholders'
representatives on the Board of Directors of Safety Components). Promptly
following the issuance of a new stock certificate issued in the name of the
Purchaser representing the Purchased Shares transferred pursuant to this
Agreement to the Purchaser, any remaining representatives of the Selling
Stockholder who shall be on the Board of Directors of Safety Components shall
resign from such position.
(e) Completion of Actions. On or before December 31, 2005, each
party hereto shall have performed all covenants required to be performed by it
under this Agreement or the other Transaction Agreements other than (i) those
covenants hereunder or thereunder that are required to be performed or that are
only capable of being performed by it on or following the Closing Date in
accordance with the terms hereof or thereof and (ii) any action required to be
performed by it under Section 5.2(a)(ii) following the initial filing of its
notification and report form within the 10-business day period specified
thereunder. Notwithstanding the foregoing, with respect to the Selling
Stockholder's obligation under Section 5(c), (A) if the Selling Stockholder
shall not have procured the Vote pursuant to such Section 5(c) prior to December
31, 2005 and (B) the Selling Stockholder's failure to procure the Vote by such
date is attributable to the Selling Stockholder's inability to resolve, in good
faith, to the Commission's satisfaction any comments pertaining to its review of
the Information Statement within 30 days following notice (whether orally or in
writing) by the Commission to the Selling Stockholder of its intention to
provide comments on the Information Statement, then, for each additional day
beyond the aforementioned 30-day period that is required to resolve any such
comments, the Selling Stockholder shall be granted hereunder one additional day
following the date of December 31, 2005 to mail, if necessary, the Definitive
Information Statement and to procure the Vote. For purposes of the immediately
foregoing sentence, the Selling Stockholder will be obligated hereunder to
diligently inquire with Commission to determine whether the Commission will
furnish comments with respect to the Information Statement.
6. CLOSING CONDITIONS.
(a) Conditions to Selling Stockholder's Obligations. The obligation
of the Selling Stockholder to consummate the transactions contemplated hereunder
is subject to the satisfaction of the following conditions or waiver thereof by
the Selling Stockholder:
(i) Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser shall be true and accurate as of
the Closing in all material respects.
(ii) Approval of Selling Stockholder's Stockholders. The sale
of the Purchased Shares by the Selling Stockholder to the Purchaser pursuant to
the terms of this Agreement shall have been approved by holders of a majority of
the outstanding shares of common stock of the Selling Stockholder entitled to
vote thereon in accordance with applicable law, and the Selling Stockholder's
Certificate of Incorporation and By-laws.
(iii) No Injunction. No temporary restraining order,
preliminary or permanent injunction or other order shall have been issued by any
Governmental Entity, and no
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other legal restraint or prohibition preventing the consummation of the sale of
Purchased Shares shall be in effect.
(iv) HSR Act. All waiting periods under the HSR Act with
respect to the filings made under Section 5(a)(ii) hereof shall have expired or
terminated.
(b) Conditions to Purchaser's Obligations. The obligation of the
Purchaser to consummate the transactions contemplated hereunder is subject to
the satisfaction of the following conditions or waiver thereof by the Purchaser:
(i) Accuracy of Representations and Warranties. The
representations and warranties of the Selling Stockholder shall be true and
accurate as of the Closing in all material respects.
(ii) No Injunction No temporary restraining order, preliminary
or permanent injunction or other order shall have been issued by any
Governmental Entity, and no other legal restraint or prohibition preventing the
consummation of the sale of Purchased Shares shall be in effect.
(iii) Stockholder Vote. The Selling Stockholder shall have
procured the Vote and delivered written notice thereof to the Purchaser prior to
the Closing.
(iv) Opinion of Selling Stockholder's Counsel. The Selling
Stockholder shall have delivered to the Purchaser a legal opinion of counsel,
addressed to the Purchaser, dated the Closing Date and in a form and in
substance customary for transactions of this type, to the effect that , subject
to the assumptions and qualifications and limitations included therein, the
execution, delivery and performance by the Selling Stockholder of the
Transaction Agreements and the consummation of the transactions contemplated
thereby, have been duly authorized by all necessary corporate and stockholder
action and no other action on the part of the Selling Stockholder is necessary
to authorize the execution and delivery by the Selling Stockholder of the
Transaction Agreements or the consummation of the transactions contemplated
hereby or thereby.
(v) HSR Act. All waiting periods under the HSR Act with
respect to the filings made under Section 5(a)(ii) hereof shall have expired or
terminated.
7. TERMINATION.
(a) This Agreement may be terminated by either party hereto upon
written notice to the other party if (i) the covenant set forth in Section 5(e)
shall not have been fulfilled by the date specified therein or (ii) the waiting
periods under the HSR Act with respect to the filings made under Section
5(a)(ii) hereof shall not have expired or terminated on or before June 30, 2006
(the "Outside Date"), or such later date as may have been agreed upon in writing
by the parties hereto; provided, however, that no such right of termination
shall be exercisable by a party if the nonfulfillment of such Section 5(e) or
the non-expiration or non-termination of the waiting periods under the HSR Act
(as applicable) is due to such party's noncompliance with or breach of the
covenants to be performed by it under this Agreement. Upon written notice of
termination, either party may give the Escrow Agent the Termination Notice
provided for in the
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Escrow Agreement. If a party receives a Termination Notice, it may at any time
within 10 days thereafter give the Escrow Agent a Termination Objection Notice
stating that it disputes the right of the party giving the Termination Notice to
terminate this Agreement or if it has a claim against the terminating party for
material breach of this Agreement.
(b) If (i) this Agreement is terminated by the Purchaser in
accordance with its terms solely by reason of (A) the nonfulfillment of Section
5(e) or (B) the Vote not having been obtained by the Outside Date, (ii) in the
case of the foregoing clause (B), all other conditions to the Closing have been
fulfilled or waived by the party intended to benefit therefrom, and (iii) the
nonfulfillment of such Section 5(e) or the failure of such Vote condition (as
applicable) is not the result of a breach by the Purchaser of this Agreement,
then, the Selling Stockholder shall promptly following termination of this
Agreement pay to the Purchaser a break-up fee in the amount of Two Million
Dollars (US$2,000,000) (the "Break-Up Fee") and reimburse the Purchaser for (i)
the actual documented out-of-pocket expenses incurred by the Purchaser in
negotiating and executing the Transactions Agreements and performing or
consummating the transactions contemplated hereby up to a maximum of Five
Hundred Thousand Dollars ($500,000) (the "Expense Payment") and (ii) the
Borrowing Payment Factor, together with interest thereon computed at the One
Month LIBOR Rate for the period commencing on the date immediately following the
Maximum Borrowing Period and ending on the termination date of this Agreement.
(c) Upon termination of this Agreement, neither party hereto shall
have any liability or obligation under this Agreement except to the extent a
party has breached its representations, warranties, covenants or agreements
hereunder (and not cured such breach prior to termination of this Agreement) or
to the extent that the Break-Up Fee, the Expense Payment or the amount required
to be paid under clause (ii) of Section 7(b) are due by the terms hereof.
8. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES, ETC. All
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns. No other parties shall have any
rights under or be entitled to enforce this Agreement.
9. EXPENSES. Except as otherwise provided herein, the parties hereto shall
bear their own expenses incurred in connection with this Agreement and the sale
and purchase of Purchased Shares, including, without limitation, all fees of
their respective legal counsel, investment advisors and accountants.
10. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be communicated in writing, mailed by first class
mail delivered by hand, at the addresses (or to such other address for a party
as such party may specify by written notice given pursuant hereto) first set
forth in the beginning of this Agreement, in the case of the Selling
Stockholder, to the attention of the President & Chief Executive Officer, with a
copy to the Vice President-Finance and in the case of the Purchaser, to the
attention of Xxxxx X. Xxxxxxx.
11. AMENDMENTS, ETC. No amendment, modification, termination, or waiver of
any provision of this Agreement and no consent to any departure by a party from
any provision of this Agreement, shall be effective unless it shall be in
writing and signed and delivered by the
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other party, and then it shall be effective only in the specific instance and
for the specific purpose for which it is given.
12. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may be executed by facsimile signature transmitted to any other
party by electronic transmission. The parties shall be bound by a facsimile
signature once transmitted to another party. The latter transmission of an
originally executed copy of any such document shall not invalidate any signature
previously given by electronic transmission.
13. ENTIRE AGREEMENT. This Agreement, together with the other Transaction
Agreements, contains the entire agreement between the Purchaser and the Selling
Stockholder with respect to the subject matter hereof. There are no other
agreements, arrangements or understandings, oral or written, between the parties
hereto relating to the subject matter hereof.
14. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of New York without reference to
conflicts of law principles.
SIGNATURES ON FOLLOWING PAGE
-19-
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement as of the date first above written.
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Xxxxx X. Xxxxxxx
Principal Member
XXXXXX CORPORATION
By: /s/ Xxxxxxx XxXxxxx
-----------------------
Name: Xxxxxxx XxXxxxx
Title: CFO
Witness /s/ Xxxxxxx X. Xxxxxxx
----------------------
AMENDMENT NO. 1 AND JOINDER
This AMENDMENT NO. 1 AND JOINDER, dated as of September 26, 2005 (this
"Amendment"), by and among WLR RECOVERY FUND II, L.P., a Delaware limited
partnership (the "Fund II"), WLR RECOVERY FUND III, L.P., a Delaware limited
partnership (the "Fund III"), and XXXXXX CORPORATION, a Delaware corporation
(the "Selling Stockholder"), to the Stock Purchase Agreement, dated as of
September 23, 2005 (the "Stock Purchase Agreement"), between Fund III and the
Selling Stockholder.
WITNESSETH:
WHEREAS, Fund III and the Selling Stockholder have executed and delivered
the Stock Purchase Agreement;
WHEREAS, Fund III has advised the Selling Stockholder that it is required
under applicable agreements to permit Fund II to participate in the purchase of
the Purchased Shares;
WHEREAS, Section 11 of the Stock Purchase Agreement provides that no
amendment, modification, termination or waiver of any provision of the Stock
Purchase Agreement shall be effective unless it shall be in writing and signed
and delivered by the other party;
WHEREAS, Fund III and the Selling Stockholder have agreed to amend the
Stock Purchase Agreement to provide that Fund II shall become a party thereto;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Definitions. Capitalized terms used herein without definition are used
as defined in the Stock Purchase Agreement, unless otherwise indicated herein.
2. Amendments to Stock Purchase Agreement.
(a) The Stock Purchase Agreement is hereby amended to provide that
references therein to the term "Purchaser" shall be references to both Fund II
and Fund III.
(b) Section 1(a) is hereby amended to read as follows:
"Subject to the terms and conditions herein, the Selling Stockholder shall
sell to Fund II and Fund III, and Fund II and Fund III shall each purchase
from the Selling Stockholder at the Closing (defined below), 241,419 and
3,920,975 shares (the "Purchased Shares"), respectively, of the common
stock, par value $0.01 per share ("Common Stock"), of Safety Components,
free and clear of all security interests, liens or encumbrances other than
those imposed by the applicable securities laws. In consideration for the
Purchased Shares, at Closing, the Purchaser shall pay the Selling
Stockholder a purchase price in immediately available funds of U.S. $12.30
per share, or U.S. $51,197,446 in the aggregate (the "Purchase Price").
The sale, assignment and transfer of the Purchased Shares will be made
without recourse, representation or warranty of any kind by the
Selling Stockholder, express or implied, except as expressly set forth herein."
3. Joinder. In consideration of this Amendment, Fund II hereby agrees to
become a party to the Stock Purchase Agreement, as amended by this Amendment,
and shall severally be fully bound by and subject to all of the covenants, terms
and provisions of each such agreement as a "Purchaser," and as though an
original party thereto. The undersigned, as of the date hereof, hereby severally
makes the same representations and warranties made by Fund III in the Stock
Purchase Agreement.
5. Miscellaneous. Except as expressly amended and modified hereby, the
Stock Purchase Agreement is hereby ratified and reaffirmed in all respects and
all the terms and provisions thereof shall be and remain in full force and
effect. The section and other headings in this Amendment are inserted solely as
a matter of convenience and for reference, are not a part of this Amendment, and
shall not be deemed to affect the meaning or interpretation of this Amendment.
This Amendment may be signed in any number of counterparts, each of which shall
be deemed an original, and all of which together shall constitute one and the
same instrument. This Amendment may be executed by facsimile signature
transmitted to any other party by electronic transmission. The parties shall be
bound by a facsimile signature once transmitted to another party. The latter
transmission of an originally executed copy of any such document shall not
invalidate any signature previously given by electronic transmission. This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York without reference to conflict of laws principles.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Amendment as of the date first above written.
WLR RECOVERY FUND II, L.P.
By: WLR Recovery Associates, II
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Principal Member
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Principal Member
XXXXXX CORPORATION
By: /s/ Xxxxxxx XxXxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxx
Title: CFO
Witness /s/ Xxxxx X. Xxxxxxx
--------------------------------
