EXHIBIT 99(d)(2)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into on
August 30, 2000 by and between XXXXXXX PAPERS LTD., a Canada corporation
("Parent"), XXXXXXX ACQUISITION CORP., a New York corporation and a wholly-owned
subsidiary of Parent (the "Purchaser"), XXXXX X. XXXXX ("Xxxxx"), XXXX XXXXX
XXXXX ("Xxxxx"), XXXXX XXXXX XXXXX ("Xxxxx"), and the ESTATE OF XXXXXX X. XXXXX
(the "Estate"). For purposes of this Agreement, all capitalized terms shall have
the meaning ascribed to such terms in the Merger Agreement (defined below)
unless otherwise defined herein or the context otherwise requires.
WITNESSETH
WHEREAS, Parent, Purchaser, and Xxxxx Corporation, a New York corporation
(the "Company"), are simultaneously herewith entering into a certain Agreement
and Plan of Merger dated August 30, 2000 (the "Merger Agreement"), pursuant to
which Purchaser will (i) commence an offer to purchase for cash (the "Tender
Offer") all of the issued and outstanding shares of common stock of the Company,
$.01 per value per share (and as the same may be reclassified, split-up or
otherwise modified, including any voting securities for which the same is
exchanged, "Common Stock"), at a price of $4.00 per share net to the sellers
thereof in cash; and (ii) be merged with and into the Company (the "Merger"),
subject to certain conditions contained in and otherwise pursuant to the Merger
Agreement, and Parent's and Purchaser's willingness to enter into the Merger
Agreement and commence the Tender Offer and consummate the Merger is conditional
upon the Seller's execution and delivery of this Agreement;
WHEREAS, each of James, Derek, Xxxxx and the Estate (each a "Seller", and,
collectively, the "Sellers") is the beneficial owner of such number of shares of
Common Stock as is set forth opposite his name on Schedule I annexed hereto and
made a part hereof ("Schedule I");
WHEREAS, Xxxxx is the beneficial owner of such number of shares of Class E
Exchangeable Preferred Stock ("Preferred Stock") of Wood Xxxxx Inc., a wholly
owned subsidiary of the Company, ("Wood Xxxxx"), which are
exchangeable, on demand and without additional consideration for shares of
Common Stock on a one-for-one basis, as is set forth opposite his name on
Schedule I;
WHEREAS, in order to induce Parent and Purchaser to enter into the Merger
Agreement and to commence the Tender Offer and consummate the Merger, each
Seller desires to enter into, and perform his respective obligations under, this
Agreement;
WHEREAS, Wood Xxxxx is the issuer of certain other classes of preferred
stock designated Class A Shares and Class B Shares, and Parent has agreed in
Section 8.16 hereof to guarantee Wood Xxxxx'x performance of its obligation
thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, represent and warrant to each of Parent
and Purchaser, jointly and severally, as of the date hereof, as follows:
1.1 APPROVAL OF AGREEMENT AND TRANSACTION. This Agreement and the
transactions described herein or otherwise entered into in connection herewith
(the "Transaction") have been duly adopted, approved, certified, executed and
acknowledged by each Seller, and all action has been properly taken with respect
thereto, in accordance with all applicable law and regulation.
1.2 SELLER'S CAPACITY; REGISTERED OWNER'S EXISTENCE AND GOOD STANDING;
OWNERSHIP OF STOCK; AUTHORITY; BINDING OBLIGATION. Each Seller is the beneficial
owner of the number of shares of Common Stock, and, if applicable, Preferred
Stock, set forth in Schedule I, and is either the registered owner thereof or
controls the registered owner thereof identified in Schedule I ("Registered
Owner"), free and clear of all liens, encumbrances, restrictions and claims of
every kind except such liens, encumbrances, restrictions and claims as may be
set forth in such
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Schedule I. In any instance where a Seller is the beneficial owner but not the
Registered Owner, the Registered Owner is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and
existence. The aggregate of the shares of Common Stock beneficially owned by
Sellers as set forth in Schedule I constitutes greater than fifty percent of the
authorized, issued and outstanding shares of Common Stock on a fully diluted
basis. Each Seller on behalf of himself and each Registered Owner controlled by
him has full legal capacity, right, power and authority to make, execute,
deliver and perform this Agreement, including the consummation of the
Transaction, and each of the other agreements, instruments and other documents
delivered pursuant hereto or otherwise in connection herewith. This Agreement
and any other documents or instruments delivered herewith or pursuant hereto or
otherwise contemplated herein have been duly executed and delivered by each
Seller on behalf of himself and each Registered Owner controlled by him and
(assuming valid execution and delivery by Parent and Purchaser) each constitutes
the legal, valid and binding obligation of each such Seller and Registered Owner
enforceable against each of them in accordance with its terms. Each Seller who
is the beneficial owner but not the Registered Owner of any shares of Common
Stock has provided to Parent and Purchaser a copy of the authorizing resolutions
or other appropriate documents adopted by the appropriate Registered Owners duly
certified by an appropriate officer authorizing it to execute, deliver and
perform its obligations under this Agreement, including the consummation of the
Transaction, and each other instrument or other document delivered herewith or
otherwise pursuant hereto or otherwise contemplated herein. A correct and
complete copy of the charter documents of each Registered Owner, certified by an
appropriate person, are being delivered by each Seller to which such Registered
Owner pertains simultaneously with the execution and delivery hereof, and there
have been no amendments thereof not reflected in such copies. Upon payment of
the Purchase Price on the Tender Offer Acquisition Date or Common Stock Closing
Date, as the case may be, and Preferred Stock Closing Date, each as defined in
Article III below, Purchaser will have good and valid title to all of the shares
of Common Stock identified in Schedule I, and Parent will have good and valid
title to all of the shares of Preferred Stock identified in Schedule I, in each
case free and clear of all liens, encumbrances, restrictions and
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claims of every kind, including any and all rights pertaining thereto, including
all voting rights and rights to dividends and other distributions whether
declared or not by the date hereof which have not been paid or distributed by
the date hereof, regardless of the financial year in which they were accrued or
declared, and all rights of exchange pertaining to the Preferred Stock.
1.3 NO RESTRICTIONS. No Seller nor any Registered Owner is a party to, or
otherwise subject to, any mortgage, lien, lease, agreement, instrument,
contract, order, law, rule, regulation, judgment or decree, or any other
restriction of any kind or character, which (a) would require authorization or
approval of, or filing with, any governmental agency, authority or other body,
or any other person, in connection with the execution and delivery of this
Agreement or the transactions contemplated hereby; or (b) would prevent
consummation of the transactions contemplated in this Agreement, and the
compliance by each Seller with the terms, conditions and provisions hereof.
1.4 NO LITIGATION. There is no action, suit or proceeding at law or in
equity by any person, or any arbitration or any administrative or other
proceeding, or, to the knowledge of any Seller, any investigation by, any
governmental or other instrumentality or agency, pending or, to the knowledge of
any Seller, threatened with respect to any Seller which could have an adverse
effect on the consummation of the transactions contemplated in this Agreement.
1.5 NO BROKER'S OR FINDER'S FEES. No agent, broker, person or firm acting
or purporting to act on behalf of any Seller is, or will be, entitled to any
commission or broker's or finder's fee from any of the parties hereto, or any
other person respecting any of the transactions contemplated herein.
1.6 DISCLOSURE. No representation or warranty by Sellers contained in this
Agreement or any statement or certificate or other document furnished or to be
furnished to Parent or Purchaser or their representatives pursuant hereto or
otherwise in connection herewith contains any untrue statement of material fact,
or omits to state any fact required to make the statements, certificates or
other documents herein or therein contained not misleading taken as a whole. The
representations and warranties contained in this Article I shall not be affected
or deemed waived by
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reason of the fact that Parent or Purchaser or their representatives knew or
should have known that any such representation or warranty was or might be
inaccurate in any respect or by any investigation made by Parent or Purchaser or
their representatives. The copies of all documents furnished to Parent or
Purchaser hereunder or otherwise in connection herewith are true and complete
copies of the originals thereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser, jointly and severally, represent and warrant to
Sellers, jointly and severally, as of the date hereof, as follows:
2.1 APPROVAL OF AGREEMENT AND TRANSACTION. This Agreement and the
Transaction have been duly adopted, approved, certified, executed and
acknowledged by Parent and Purchaser, and all corporate action has been properly
taken with respect thereto, in accordance with the Certificate of Incorporation,
Bylaws and other organizational and governing documents of Parent and Purchaser,
and of all applicable law and regulation.
2.2 PARENT'S AND PURCHASER'S EXISTENCE AND GOOD STANDING; AUTHORITY;
BINDING OBLIGATION. Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Canada and
New York, respectively. Each of Parent and Purchaser has full legal capacity,
right, power and authority to make, execute, deliver and perform this Agreement,
including the consummation of the Transaction, and each of the other agreements,
instruments and other documents delivered pursuant hereto or otherwise in
connection herewith. This Agreement and any other documents or instruments
delivered herewith or pursuant hereto or otherwise contemplated herein have been
duly authorized, executed and delivered by each of Parent and Purchaser and
(assuming valid execution and delivery by Sellers) each constitutes the legal,
valid and binding obligation of each of Parent and Purchaser enforceable against
each of them in accordance with its terms. Each of Parent and Purchaser has
provided to Sellers a copy of a resolution adopted by each of Parent and
Purchaser's Board
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of Directors duly certified by an appropriate officer authorizing it to execute,
deliver and perform its obligations under this Agreement, including the
consummation of the Transaction, and each other instrument or other document
delivered herewith or otherwise pursuant hereto or otherwise contemplated
herein. Correct and complete copies of the Certificate of Incorporation and
Bylaws of each of Parent and Purchaser, certified by its Secretary, are being
delivered simultaneously with the execution and delivery hereof, and there have
been no amendments thereof not reflected in such copies.
2.3 NO RESTRICTIONS. Neither Parent nor Purchaser is a party to, or
otherwise subject to, any charter, bylaw, mortgage, lien, lease, agreement,
instrument, contract, order, law, rule, regulation, judgment or decree, or any
other restriction of any kind or character, which (a) would require
authorization or approval of, or filing with, any governmental agency, authority
or other body, or any other person, in connection with the execution and
delivery of this Agreement or the transactions contemplated hereby; or (b) would
prevent consummation of the transactions contemplated in this Agreement, and the
compliance by Parent and Purchaser with the terms, conditions and provisions
hereof.
2.4 NO LITIGATION. There is no action, suit or proceeding at law or in
equity by any person, or any arbitration or any administrative or other
proceeding, or, to the knowledge of Parent or Purchaser, any investigation by,
any governmental or other instrumentality or agency, pending or, to the
knowledge of Parent or Purchaser, threatened with respect to Parent or Purchaser
which could have an adverse effect on the consummation of the transactions
contemplated in this Agreement.
2.5 NO BROKER'S OR FINDER'S FEES No agent, broker, person or firm acting
or purporting to act on behalf of Parent or Purchaser is, or will be, entitled
to any commission or broker's or finder's fee from any of the parties hereto, or
any other person respecting any of the transactions contemplated herein.
2.6 DISCLOSURE. No representation or warranty by Parent or Purchaser
contained in this Agreement or any statement or certificate or other document
furnished or to be furnished to Sellers or their representatives pursuant hereto
or otherwise in connection herewith contains any
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untrue statement of material fact, or omits to state any fact required to make
the statements, certificates or other documents herein or therein contained not
misleading taken as a whole. The representations and warranties contained in
this Article II shall not be affected or deemed waived by reason of the fact
that Sellers or their representatives knew or should have known that any such
representation or warranty was or might be inaccurate in any respect or by any
investigation made by Sellers or their representatives. The copies of all
documents furnished to Sellers hereunder or otherwise in connection herewith are
true and complete copies of the originals thereof.
ARTICLE III
PURCHASE AND SALE OF STOCK
3.1 PURCHASE AND SALE OF COMMON STOCK.
3.1.1 PURCHASE AND SALE OF COMMON STOCK PURSUANT TO THE TENDER OFFER;
AGREEMENT IN THE EVENT OF TERMINATION OF THE TENDER OFFER. Upon the commencement
of the Tender Offer each Seller shall forthwith tender, or cause the Registered
Owner controlled by him to tender, the shares of Common Stock beneficially owned
by him as set forth on Schedule I pursuant to the terms of the Tender Offer and
not withdraw such shares of Common Stock, and Purchaser shall, subject to the
conditions of the Tender Offer, take up and pay for the shares of Common Stock
so tendered on the date provided in (the "Tender Offer Acquisition Date"), and
otherwise pursuant to the terms of, the Tender Offer. Upon the consummation of
the Tender Offer, Sections 3.1.2, 3.1.3 and 3.1.4 hereof shall become null and
void and of no further force and effect between the parties. In the event that
the Tender Offer shall be terminated prior to Purchaser's taking up and paying
for shares of the Common Stock, Sections 3.1.2, 3.1.3 and 3.1.4 hereof shall
remain in full force and effect as an agreement between the parties.
3.1.2 PURCHASE AND SALE OF COMMON STOCK; PRICE; ADJUSTMENT TO PER SHARE
COMMON STOCK PURCHASE PRICE. Subject to the terms and conditions hereof, each
Seller shall sell, assign, transfer, convey and deliver to Purchaser, or shall
cause the Registered Owner controlled by him to sell, assign, transfer, convey
and deliver, on the Common Stock Closing Date, as defined below, and Purchaser
shall purchase from each such Seller on such
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Common Stock Closing Date, all of the shares of Common Stock beneficially owned
by him as set forth on Schedule I, free and clear of all liens, encumbrances,
restrictions and claims of every kind, including any and all rights including
all voting rights and rights to dividends and other distributions whether
declared or not by the date hereof which have not been paid or distributed by
the date hereof, regardless of the financial year in which they were accrued or
declared, in exchange for the payment by Purchaser of $4.00 per share of Common
Stock (the "Common Stock Purchase Price"). In the event of any reclassification,
split-up or other modification of the Common Stock the per share Common Stock
Purchase Price payable hereunder shall be adjusted accordingly.
3.1.3 METHOD OF PAYMENT; TRANSFER. Payment of the Common Stock Purchase
Price shall be made by direct bank-to-bank wire transfer of same day funds in
United States dollars to an account or accounts designated by each Seller and
set forth in Schedule I, or otherwise provided to Purchaser prior to the time
when payment is required hereunder, without any deduction for expenses, taxes,
fees, commissions, or related costs. Certificates representing the shares of
Common Stock, duly endorsed in blank, or accompanied by stock powers duly
executed in blank, shall be delivered on the Common Stock Closing Date by each
Seller thereof against payment of the Common Stock Purchase Price therefor.
3.1.4 COMMON STOCK CLOSING. The closing of the foregoing purchase and sale
(the "Common Stock Closing") shall take place at 10:00 a.m. at the offices of
Parent, on the date which is five days subsequent to Parent's written notice to
Sellers requiring a Common Stock Closing, or at such other time as the parties
hereto shall by written instrument designate (the "Common Stock Closing Date"),
or at such other place as the parties hereto shall by written instrument
designate.
3.2 PURCHASE AND SALE OF PREFERRED STOCK.
3.2.1 PURCHASE AND SALE OF PREFERRED STOCK; PRICE; ADJUSTMENT TO PER SHARE
PREFERRED STOCK PURCHASE PRICE. Subject to the terms and conditions hereof, each
Seller shall sell, assign, transfer, convey and deliver to Parent, or shall
cause the Registered Owner controlled by him to sell, assign, transfer, convey
and deliver to Parent, on the Preferred Stock Closing Date, as defined below,
and
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Parent shall purchase from such Seller on such Preferred Stock Closing Date,
all of the shares of Preferred Stock beneficially owned by him as set forth on
Schedule I, free and clear of all liens, encumbrances, restrictions and claims
of every kind, including all voting rights and rights to dividends and other
distributions whether declared or not by the date hereof which have not been
paid or distributed by the date hereof, regardless of the financial year in
which they were accrued or declared, and all rights of exchange pertaining
thereto, in exchange for the payment by Parent of $4.00 per share of Preferred
Stock (the "Preferred Stock Purchase Price"). In the event of any
reclassification, split-up or other modification of the Preferred Stock the per
share Preferred Stock Purchase Price payable hereunder shall be adjusted
accordingly.
3.2.2 METHOD OF PAYMENT; TRANSFER. Payment of the Preferred Stock Purchase
Price shall be made by direct bank-to-bank wire transfer of same day funds in
United States dollars to an account or accounts designated by each Seller and
set forth in Schedule I, or otherwise provided to Purchaser prior to the time
when payment is required hereunder, without any deduction for expenses, taxes,
fees, commissions, or related costs. Certificates representing the shares of
Preferred Stock, duly endorsed in blank, or accompanied by stock powers duly
executed in blank, shall be delivered on the Preferred Stock Closing Date by
each Seller thereof against payment of the Preferred Stock Purchase Price
therefor.
3.2.3 PREFERRED STOCK CLOSING. The closing of the foregoing purchase and
sale of Preferred Stock (the "Preferred Stock Closing") shall take place
simultaneously with either the purchase by Purchaser on the Tender Offer
Acquisition Date, or the purchase by Purchaser on the Common Stock Closing Date,
whichever shall occur, at the offices of Parent, or at such other time as the
parties hereto shall by written instrument designate (the "Preferred Stock
Closing Date"), or at such other place as the parties hereto shall by written
instrument designate.
ARTICLE IV
CONDITIONS TO THE OBLIGATIONS OF PARENT OR PURCHASER
The obligations of Purchaser to effect the Transaction on the Tender Offer
Acquisition Date or Common Stock
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Closing Date, or of Parent to effect the Transaction on the Preferred Stock
Closing Date, are subject to the satisfaction, on or prior to such Dates, of
each of the following conditions, any one or more of which may be waived by
Parent or Purchaser:
4.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Seller contained in this Agreement, including all Schedules
and Exhibits delivered pursuant hereto, shall be true and correct in all
material respects on and as of the Tender Offer Acquisition Date or Common Stock
Closing Date or Preferred Stock Closing Date, as the case may be, with the same
force and effect as though such representations and warranties had been made on
and as of such Dates, and Sellers shall have delivered to Parent and Purchaser a
certificate, dated the applicable Date, to such effect.
4.2 NO EXISTENCE OF CONDITION TO TENDER OFFER. There shall not exist any
circumstance which constitutes a condition to the Tender Offer as set forth in
Exhibit 1.1 to the Merger Agreement.
4.3 NO TERMINATION OF MERGER AGREEMENT. The Merger Agreement shall
not have been terminated.
4.4 LEGAL OPINION. Sellers shall furnish to Parent and Purchaser an
opinion of one or more of Sellers' legal counsel dated the Tender Offer
Acquisition Date or Common Stock Closing Date, as the case may be, in form and
substance acceptable to Parent's and Purchaser's legal counsel acting
reasonably.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF SELLERS
The obligations of Sellers to effect the Transaction on the Tender Offer
Acquisition Date or Common Stock Closing Date or Preferred Stock Closing Date
are subject to the satisfaction, on or prior to such Dates, of each of the
following conditions, any one or more of which may be waived by Sellers:
5.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Parent and Purchaser
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contained in this Agreement, including all Schedules and Exhibits delivered
pursuant hereto, shall be true and correct in all material respects on and as of
the Tender Offer Acquisition Date or Common Stock Closing Date or Preferred
Stock Closing Date, as the case may be, with the same force and effect as though
such representations and warranties had been made on and as of such Dates, and
Parent and Purchaser shall have delivered to Sellers a certificate, dated the
applicable Date, to such effect.
ARTICLE VI
SELLERS' FURTHER COVENANTS AND AGREEMENT
During the period from the date of this Agreement to the earlier to occur
of the termination of this Agreement pursuant to its terms or the Preferred
Stock Closing Date,
6.1 SELLERS TO REMAIN IN CONTROL OF REGISTERED OWNERS. No Seller shall
dispose of voting securities of, or resign any position with, the Registered
Owner controlled by him on the date hereof, or take any action which could
reasonably be expected to result in his removal, or take or omit to take any
action which could reasonably be expected to result in any loss of control by
such Seller of such Registered Owner.
6.2 SELLERS TO MAINTAIN EXISTENCE OF REGISTERED OWNERS. No Seller shall
terminate, or take or omit to take any action which could reasonably be expected
to result in the termination of, the existence or good standing of any
Registered Owner controlled by him on the date hereof.
6.3 NO SALE OF COMMON STOCK OR PREFERRED STOCK. No Seller shall directly
or indirectly sell, transfer, assign or otherwise dispose of or encumber, or
take any action which could reasonably be expected to result in the sale,
transfer, assignment or other disposition or encumbrance of, any shares of the
Common Stock or Preferred Stock.
6.4 NO SHOP COVENANT. In consideration of the substantial expenditure of
time, effort and expense undertaken and to be undertaken by Parent and Purchaser
in connection with the Transaction, each Seller covenants that he shall not, nor
shall he permit any Registered Owner or other person controlled by him to, or
authorize any
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investment banker, attorney, accountant or other representative retained by him
or any Registered Owner to, directly or indirectly, without the written consent
of Parent and Purchaser, solicit or encourage, or furnish information with
respect to the Common Stock or Preferred Stock to, or otherwise have any
communication with, any person in connection with the possible sale of any
shares of the Common Stock or Preferred Stock or any other securities of the
Company or any subsidiary thereof, or any affiliate or asset thereof, or any
merger or similar transaction with respect thereto.
6.5 VOTING. In the event that the Tender Offer shall be terminated prior
to Purchaser's taking up and paying for the shares of Common Stock, and
Purchaser shall not have purchased the shares of Common Stock at the time of any
vote of shareholders with respect to the Merger Agreement and the Merger, each
Seller agrees to vote, or cause to be voted, as applicable, the shares of Common
Stock (a) to approve and adopt the Merger Agreement and the transactions
contemplated thereby including the consummation of the Merger as provided
therein, and (b) to approve and authorize the Merger.
ARTICLE VII
TERMINATION
7.1 RIGHT TO TERMINATION. Notwithstanding anything to the contrary
contained herein, this Agreement may be terminated at any time prior to the
Preferred Stock Closing Date by:
(a) written consent of all of the parties;
(b) Parent and Purchaser, if any of the conditions set forth
in Article IV shall not have been fulfilled on or before the applicable
Dates described therein through no fault of Parent or Purchaser, and such
conditions shall not have been waived by Parent and Purchaser;
(c) Parent and Purchaser, if any of the covenants and
agreements of Sellers set forth in Article VI shall have been breached in
any material respect, and such breach shall not have been waived by Parent
and Purchaser;
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(d) Sellers, if any of the conditions set forth in Article V
shall not have been fulfilled on or before the applicable Dates described
therein through no fault of Sellers, and such conditions shall not have
been waived by Sellers.
(e) Parent and Purchaser in the event Purchaser is permitted
by the Merger Agreement to terminate the Tender Offer without taking up
and paying for the shares of Common Stock tendered therein.
7.2 EFFECTS OF TERMINATION. If this Agreement is terminated and the
transactions contemplated hereby are not consummated as described in Section
7.1, this Agreement shall become void and of no further force and effect and all
parties to this Agreement shall be released from all obligations whatsoever to
whomsoever including, without limitation, all obligations of any party to any
other party and such other party's affiliates, shareholders, officers, directors
and employees, (a "Termination Release") except that, notwithstanding anything
to the contrary contained herein, (i) the provisions of Sections 8.13 and 8.14
(respecting no publicity and jurisdiction) shall survive such termination and
not be subject to such Termination Release; and (ii) any termination of this
Agreement pursuant to clauses (b), (c) or (d) of Section 7.1 shall not result in
such a Termination Release, but rather all rights and remedies of all parties,
including with respect to a claim against a party for such party's breach
hereof, shall in all respects survive and be preserved.
ARTICLE VIII
MISCELLANEOUS
8.1 EQUITABLE RELIEF. The parties hereto agree that Parent and Purchaser
would suffer irreparable harm from a breach by any Seller of any of the
covenants or agreements contained herein. The parties hereto hereby declare that
money damages alone would not be sufficient to remedy the harm which will accrue
to Parent and Purchaser by reason of any failure by any Seller to perform any of
the obligations under this Agreement, and agree that in the event of the actual
or threatened breach by any Seller of any of the provisions of this Agreement,
Parent and Purchaser may, in
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addition and supplementary to other rights and remedies existing in their favor,
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive or other equitable relief in order to enforce any
of any Seller's obligations hereunder or to prevent any violation of the
provisions hereof. If Parent or Purchaser institutes any action or proceeding
for specific performance and/or injunction or other equitable relief hereunder,
each Seller hereby waives the claim or defense therein that Parent or Purchaser
has an adequate remedy at law, and no Seller shall offer in any such action or
proceeding the claim or defense that such remedy at law exists.
8.2 EXPENSES. Parent and Purchaser shall pay all expenses incurred by them
relating to the transactions contemplated in this Agreement. Each Seller shall
pay all expenses incurred by him relating to the transactions contemplated in
this Agreement.
8.3 "PERSON" DEFINED. When used herein, "person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization, a government or other department or agency thereof
or any other entity.
8.4 CAPTIONS; AGREEMENT; CONSTRUCTION; CURRENCY. The Article and Section
captions used herein are for reference purposes only, and shall not in any way
affect the meaning or interpretation of this Agreement. The term "Agreement" as
used herein means this document and any Exhibits and Schedules annexed hereto.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" means "including without limitation" and does not limit the
preceding words or terms. All references herein to dollars or "$" are references
to Unites States dollars.
8.5 NOTICES. Any notice or other communication required or permitted
hereunder shall be given in writing and shall be given by personal delivery, by
registered mail or by electronic means of communication addressed as follows:
If to Parent or Purchaser:
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Xxxxxxx Papers Ltd.
00, Xxxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxx
X0X 0X0
Attention: President
Telefax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Associates
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Telefax: (000) 000-0000
If to Sellers:
Xxxxx X. Xxxxx
000 Xxxxx Xxxxxxxx
Xxxxxx-Xxxxxx, Xxxxxx X0X 0X0
Telefax: (000) 000-0000
Xxxx Xxxxx Xxxxx M.D.
000 Xxxxxx Xxxxxx
Xxxxxxx Xxx, Xxxxxxx X0X 0X0
Xxxxx Xxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxxxx
Xxxxxxx-xxx-Xxxxxxx, Xxxxxx X0X 0X0
Telefax: (000) 000-0000
Estate of Xxxxxx X. Xxxxx
C/O Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxx. 000
Xxxxxxxx, Xxxxxx X0X 0X0
With a copy to:
Me. Xxxxx XxXxxxx
Xxxxxx Xxxxxxx
0000, Xxxx-Xxxxxxxx Blvd. West
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Suite 2500
Xxxxxxxx, Xxxxxx X0X 0X0
Telefax: (000) 000-0000
or to such other address, individual or electronic communication number as may
be designated by notice given by any party to the others. Any demand, notice or
other communication given by personal delivery shall be conclusively deemed to
have been given on the day of actual delivery thereof and, if given by
registered airmail, on the tenth business day following the deposit thereof in
the mail and, if given by electronic communication, on the day of transmittal
thereof if given between 9:00 AM and 5:00 PM on a business day of the recipient,
and on the business day during which such normal business hours next occur if
not given during such hours on any day.
8.6 PARTIES IN INTEREST. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns. Nothing in this
Agreement shall be construed as giving any person, other than the parties hereto
and their respective successors and permitted assigns, any right, remedy or
claim under or in respect to this Agreement or any provision hereof.
8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
8.8 ENTIRE AGREEMENT. This Agreement, including the Exhibits and Schedules
and other documents referred to herein (which form a part hereof) contains the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter, and all
such prior agreements and understandings are merged herein and shall not survive
the execution and delivery hereof.
8.9 AMENDMENTS; WAIVER. No modification of or amendment to this Agreement
shall be valid or binding unless set forth in writing and duly executed by the
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parties hereto and no waiver of any breach of any term or provision including,
without limitation, any representation or warranty, of this Agreement shall be
effective or binding unless made in writing and duly executed by the waiving
party and, unless otherwise provided, shall be limited to the specific breach
waived.
8.10 ENFORCEABILITY. If any provision of this Agreement (including any
Exhibits and Schedules hereto and documents delivered in performance of this
Agreement) shall be found by any court of competent jurisdiction in a final
order to be invalid or unenforceable, the parties hereby waive such provision to
the extent that it was found to be invalid or unenforceable. Such provision
shall, to the extent allowable by law, be modified by such court so that it
becomes enforceable and, as modified, shall be enforced as any other provision
hereof, all the other provisions continuing in full force and effect. The
provisions of this Section 8.10 shall not be applicable to the extent that they
would result in a material alteration of the agreement otherwise provided
herein.
8.11 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. The
respective representations, warranties, agreements and covenants of each Seller
and Parent and Purchaser contained in this Agreement shall survive the Tender
Offer Acquisition Date or Common Stock Closing Date, as the case may be, and
Preferred Stock Closing Date or the earlier termination hereof for a period of
two years following the date hereof.
8.12 NO ASSIGNMENT. None of the parties hereto may assign or otherwise
transfer any of its rights hereunder, or delegate any of its obligations
hereunder, to any third party without the prior written consent of the other
parties, provided, however, that Parent may assign its rights, but not its
obligations, hereunder to Purchaser or any other person controlled by Parent if
Parent remains fully bound by its obligations. No Seller shall have any right to
assign its voting power under this Agreement.
8.13 PUBLIC ANNOUNCEMENTS. Each of the parties agrees that it shall not,
nor shall any of their respective affiliates, issue or cause the publication of
any press release or other public announcement with respect to this Agreement or
the transactions contemplated hereby without
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the prior approval of the other parties, except such disclosure as may be
required by law or by any listing agreement with a national securities exchange;
provided, if such disclosure is required by law or any such listing agreement,
such disclosure shall not be made without prior consultation with the other
parties.
8.14 APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the law of the conflicts of law of such State. The parties consent to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York in connection with any civil action concerning any
controversy, dispute or claim arising out of or relating to this Agreement, or
any other agreement contemplated by, or otherwise with respect to, this
Agreement or the breach hereof, unless such court would not have subject matter
jurisdiction thereof, in which event the parties consent to the jurisdiction of
the state courts of the State of New York located in New York County. Each party
hereto irrevocably waives any claim that any civil action brought in any such
court has been brought in an inconvenient forum.
8.15 FURTHER ASSURANCES. Each of the parties shall deliver or cause to be
delivered at such times and places as shall be reasonably necessary or desirable
such additional instruments and other documents, and shall take such other
action, as the other parties may reasonably request for the purpose of carrying
out the transactions contemplated in this Agreement.
8.16 PARENT'S GUARANTEE OF WOOD XXXXX PREFERRED STOCK. By its execution
and delivery hereof, for good and valuable consideration, Parent hereby
guarantees to each Seller who is a direct or indirect holder of the Class A
Shares or Class B Shares issued by Wood Xxxxx, the full, faithful and timely
performance of each of Wood Xxxxx'x obligations to such holders thereunder, the
Parent hereby renouncing to the benefits of division and discussion.
In particular, but without limitation, it is understood that Parent is jointly
and severally liable towards each of such holders and any registered owner of
the Class A Shares or Class B Shares controlled by such holders, with respect to
their holdings of the Class A Shares and Class B Shares of Wood Xxxxx, for the
timely redemption of the said shares
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by Wood Xxxxx and the payment of the "Redemption Price" therefor (as that term
is defined in the constituting articles of Wood Xxxxx) and Parent hereby
undertakes to cause Wood Xxxxx to effect such redemption and payment as required
in its constituting articles on the dates and in the manner set forth therein.
In the event of any failure of Wood Xxxxx to meet its redemption obligations for
such shares, whether arising from any corporate or other incapacity to do so, or
otherwise, Parent shall, upon written demand to it to that effect by any Seller
accompanied by share certificate(s) representing the said Class A or Class B
Shares duly endorsed for transfer by the registered holder thereof, forthwith
purchase the said shares for an amount equal to the Redemption Price, payable in
cash to the registered holder thereof so transferring.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX PAPERS LTD.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive
Officer
XXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------
XXXX XXXXX XXXXX
/s/ Xxxx Xxxxx Xxxxx
---------------------
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XXXXX XXXXX XXXXX
/s/ Xxxxx Xxxxx Xxxxx
----------------------
ESTATE OF XXXXXX X. XXXXX
By: /s/ Xxxxx Xxxxxx-Xxxxx
----------------------
Name: Xxxxx Xxxxxx-Xxxxx
Title: Co-Executor
By: /s/ Xxxxxx X.X. Xxxxx
----------------------
Name: Xxxxxx X.X. Xxxxx, Esq.
Title: Co-Executor
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SCHEDULE I
XXXXX CORPORATION COMMON STOCK
------------------------------
Beneficial Number of Registered Bank Wire
Owner Shares Owner Instructions
----- ------ ----- ------------
Xxxxx X. Xxxxx 432,020 Xxxxx & Company To come
Inc.
Xxxx Xxxxx Xxxxx 317,333 Xxxxx Xxxxx To come
Holdings Inc.
Xxxxx Xxxxx Xxxxx 317,000 0000000 To come
Canada Inc.
X.X. Xxxxx Estate 194,000 0000000 To come
Canada Inc.
WOOD XXXXX INC. CLASS E EXCHANGEABLE PREFERRED STOCK
----------------------------------------------------
Beneficial Number of Registered Bank Wire
Owner Shares Owner Instructions
----- ------ ----- ------------
Xxxxx X. Xxxxx 1,333,333 Xxxxx & Company To come
Inc.
