EXHIBIT 10.3
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of the
16th day of June, 1999 by and among the parties named on the attached Schedule 1
(the "Stockholders") and XXXXXXXX INDUSTRIES, INC., a Delaware corporation (the
"Company").
WITNESSETH:
WHEREAS, in accordance with the terms of a certain Stock Purchase
Agreement between Xxxxx Creditors Trust (the "Trust") and Xxxxxxxx Enterprises,
Inc. ("REI") dated May 18, 1999 (the "Purchase Agreement"), REI designated the
Stockholders to purchase, and on May 21, 1999 the Stockholders each purchased
from the Trust, that number of shares of Class B Common Stock of the Company
designated on Schedule 1;
WHEREAS, pursuant to the terms of the Purchase Agreement, the Trust
agreed not to (i) sell, transfer or otherwise dispose of any of its remaining
shares of the Company or (ii) purchase or otherwise acquire any shares of the
Company if after such purchase or acquisition the Trust would be a "5%
shareholder" of the Company within the meaning of Section 382 of the Internal
Revenue Code of 1986, as amended (together, the "Trust Stand Still
Requirements");
WHEREAS, pursuant to the terms of the Purchase Agreement, the rights
and obligations of the Trust under a certain Registration Rights Agreement dated
July 31, 1996 between the Trust and the Company (the "Registration Rights
Agreement") were assigned to Massachusetts Mutual Life Insurance Company,
MassMutual High Yield Partners II LLC and MassMutual Corporate Value Partners
Limited (collectively, the "MassMutual Entities") via a certain Assignment and
Assumption of Registration Rights Agreement dated May 21, 1999 among the Trust
and the MassMutual Entities;
WHEREAS, pursuant to the terms of the Purchase Agreement, each of the
Stockholders entered into a Qualified Designee Assignment and Assumption
Agreement dated May 21, 1999 (the "Assignment and Assumption Agreements")
pursuant to which each Stockholder (i) severally became the assignee of certain
rights and obligations of REI under the Purchase Agreement, (ii) severally made
certain representations and warranties to the Trust and (iii) agreed to make
certain payments to the Trust on a pro rata basis if, on the third anniversary
of the date the Assignment and Assumption Agreements, the Market Value per Share
(as defined in the Assignment and Assumption Agreements) is less than $11.50
("Stock Price Deficiency Payment");
WHEREAS, a form of Assignment and Assumption Agreement is attached
hereto as Exhibit A;
WHEREAS, the Stockholders entered into a certain Stockholders Agreement
dated May 21, 1999, a copy of which is attached hereto as Exhibit B (the
"Stockholders Agreement");
NOW THEREFORE, in consideration of the terms and conditions contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Agreement of Stockholders. Each Stockholder hereby agrees that he or
it will not, for a period of three years following the Closing Date (as defined
in the Purchase Agreement) amend, modify, terminate or waive the Trust Stand
Still Requirements contained in the Purchase Agreement.
2. Agreement of the MassMutual Entities. Each of the MassMutual
Entities hereby agrees that it will not, for a period of one year following the
Closing Date (as defined in the Purchase Agreement), exercise its registration
rights under the Registration Rights Agreement.
3. Agreement of the Company. The Company hereby agrees as follows:
(A) The Company will not authorize its transfer agent to
effect any transfer of Participating Common Stock (as defined in the
Stockholders Agreement) in violation of the Stockholders Agreement or
without requiring proof of compliance with the Stockholders Agreement
and will issue stop transfer instructions to the transfer agent with
respect to all shares of Participating Common Stock until the end of
the period set forth in the Stockholders Agreement.
(B) All certificates representing Participating Common Stock
(as defined in the Stockholders Agreement) issued by the Company during
the term of the Stockholders Agreement will be endorsed as follows:
The shares of Common Stock represented by this certificate are
subject to, and transferable only in accordance with, a
Stockholders Agreement dated May 21, 1999, a copy of which
agreement is on file with the Secretary of the Company at its
registered office.
(C) After the MassMutual Entities provide written notice to
the Company that they are exercising their rights under this Paragraph
3(c) and until such time as the MassMutual Entities collectively own
less than five percent of the outstanding voting stock of the Company,
the Company shall recommend one person designated by Massachusetts
Mutual Life Insurance Company to be included in the slate of nominees
recommended by the Board of Directors of the Company for election by
the stockholders of the Company at the annual meeting of the
stockholders of the Company, and the Board of Directors shall include
such person in its recommended slate of nominees.
(D) In the event that the Stockholders are required to make
the Stock Price Deficiency Payment in accordance with the terms of the
Assignment and Assumption Agreements, the Company shall reimburse the
Stockholders for the full amount of such payments within a reasonable
time following receipt of a notice from any Stockholder that such
payments were made to the Trust.
4. Miscellaneous.
(A) Each party hereto shall be responsible for the fees and
expenses of its accountants, attorneys and advisors and any other costs
and expenses incurred by it in the negotiations and consummation of the
transactions contemplated by this Agreement.
(B) All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have
been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day of transmission if
sent via facsimile transmission to the facsimile number given below,
provided that telephonic confirmation of receipt is obtained promptly
after completion of transmission, (c) on the day after delivery to a
nationally recognized overnight courier service or the Express Mail
service maintained by the United States Postal Service, or (d) on the
fifth (5th) day after mailing, if mailed to the party to whom notice is
to be given, by first class mail, registered or certified, postage
prepaid, and addressed as follows:
If to the Company, to:
Xxxxxxxx Industries, Inc.
00000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
If to a Stockholder, to the last known address of such Stockholder
contained in the records of the Company.
Any party may change its address for the purpose of this Section 4(B)
by giving the other parties written notice of its new address in the
manner set forth above.
(C) The section and paragraph headings in this Agreement are
for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
(D) If any provision of this Agreement is declared by any
court or other governmental body to be null, void, or unenforceable,
this Agreement shall be construed so that the provision at issue shall
survive to the extent it is not so declared and that all of the other
provisions of this Agreement shall remain in full force and effect.
(E) This Agreement (and the schedules hereto) contain the
entire understanding among the parties hereto with respect to the
transactions contemplated hereby and thereby and supersede and replace
all prior and contemporaneous agreements, understandings,
representations or warranties, oral or written, with regard to those
transactions. All Schedules hereto are expressly made a part of this
Agreement as fully as though completely set forth herein.
(F) This Agreement may be amended or modified, and any of the
terms, covenants, representations, warranties, or conditions hereof may
be waived, only by a written instrument executed by the parties hereto,
or in the case of a waiver, by the party waiving compliance. Any waiver
by any party of any condition, or of the breach of any provision, term,
covenant, representation, or warranty contained in this Agreement, in
any one or more instances, shall not be deemed to be or construed as a
further or continuing waiver of any condition or of the breach of any
other provision, term, covenant, representation, or warranty of this
Agreement.
(G) Nothing in this Agreement is intended to confer any rights
or remedies under or by reason of this Agreement on any Party other
than the Company and the Stockholders and their respective successors
and permitted assigns.
(H) No party hereto shall assign or delegate this Agreement or
any rights or obligations hereunder without the prior written consent
of the other parties hereto, and any attempted assignment or delegation
without prior written consent shall be void and of no force or effect.
This Agreement shall inure to the benefit of and shall be binding upon
the successors and permitted assigns of the parties hereto.
(I) This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Indiana
applicable to contracts made and to be performed in such state.
(J) This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall together
constitute the same instrument.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed, or caused to be executed
by their duly authorized representatives, this Agreement as of the date first
written above.
"COMPANY"
XXXXXXXX INDUSTRIES, INC.
By: /S/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
"STOCKHOLDERS"
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /S/ Xxxxxxx X. Xxxxxxxx
Printed: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS II LLC , By HYP
Management, Inc., its Managing Member
By: /S/ Xxxxxxx X. Xxxxxxxx
Printed: Xxxxxxx X. Xxxxxxxx
Title: Vice President
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED , By
Massachusetts Mutual Life Insurance Company, its
Investment Manager
By: /S/ Xxxxxxx X. Xxxxxxxxx
Printed: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
/S/ Xxxxxx XxXxxxx, XX
Xxxxxx XxXxxxx, XX
/S/ Xxxx X. XxXxxxx
Ward S. XxXxxxx
XXXXXX MANAGEMENT IV, L.P.
By: /S/ Xxxxxx XxXxxxx XX
Printed: Xxxxxx XxXxxxx XX
Title: General Partner
BJR MANAGEMENT, L.P.
By: /S/ Xxxxx XxXxxxx Ravenel
Printed: Xxxxx XxXxxxx Xxxxxxx
Title: General Partner
ECM MANAGEMENT, L.P.
By: /S/ Xxxxxx X. XxXxxxx
Printed: Xxxxxx X. XxXxxxx
Title: General Partner
XXXXX X. XXXXXXX, XX., TRUSTEE FOR THE XXXXX X.
XXXXXXX,XX. MPP FBO XXXXX X. XXXXXXX, XX. TCM-RO9603
By: /S/ Xxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx, Xx., Trustee
XXXXX XXXXXXX, TRUSTEE FOR THE XXXXX XXXXXXX MONEY
PURCHASE PLAN FOR THE BENEFIT OF XXXXX XXXXXXX ACCT.
#0ZJ-R47960-80
By: /S/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxx, Trustee
XXXXXXX X. XXXXXXX , XX., TRUSTEE FOR XXXXXXX X.
XXXXXXX, XX. PS PLAN DATED 12/28/89
By: /S/ Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, Xx., Trustee
SCHEDULE 1
STOCKHOLDER NUMBER OF SHARES PURCHASED
Massachusetts Mutual Life Insurance Company 314,205
MassMutual High Yield Partners II LLC 314,204
MassMutual Corporate Value Partners Limited 119,697
Xxxxxx XxXxxxx, XX 14,599
Xxxx X. XxXxxxx 10,869
Xxxxxx Management IV, L.P. 46,737
BJR Management, L.P. 23,368
ECM Management, L.P. 23,368
Xxxxx Xxxxxxx, trustee for the Xxxxx Xxxxxxx Money 43,476
Purchase Plan for benefit of Xxxxx Xxxxxxx Act.
#OZJ-R47960-80
Xxxxx X. Xxxxxxx, Xx. Trustee for the Xxxxx X. Xxxxxxx, 43,476
Jr. MPP FBO Xxxxx X. Xxxxxxx, Xx. TCM-RO9603
Xxxxxxx X. Xxxxxxx, Xx., Trustee for Xxxxxxx X. Xxxxxxx, 43,476
Jr. PS Plan dated 12/28/89
TOTAL 997,475
EXHIBIT A
QUALIFIED DESIGNEE ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS QUALIFIED DESIGNEE ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is made as of the ____ day of May, 1999 by and among XXXXXXXX
ENTERPRISES, INC., an Indiana corporation ("REI"), ________________________ (the
"Assignee") and XXXXX CREDITORS TRUST (the "Seller"). Capitalized terms used but
not defined in this Agreement shall have the meanings set forth in the Purchase
Agreement (as defined below).
RECITALS:
1. REI and the Seller are parties to that certain Stock Purchase
Agreement dated May ___, 1999 (the "Purchase Agreement")
pursuant to which the Seller agreed to sell, and REI and/or
certain Qualified Designees agreed to purchase, 997,475 Class
B Common Shares of Xxxxxxxx Industries, Inc. (the "Company").
2. Upon execution of this Agreement, the Assignee shall for all
purposes under the Purchase Agreement be a Qualified Designee
within the meaning of the Purchase Agreement.
AGREEMENT:
In consideration of the terms and conditions contained herein and in
the Purchase Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment. REI hereby transfers and assigns to the Assignee its
right to purchase [______________] Shares pursuant to the Purchase Agreement and
further transfers and assigns to the Assignee, pro rata with the other Qualified
Designees identified on Schedule 1 attached hereto, all other right, title and
interest of REI in, to and under the Purchase Agreement.
2. Assumption. The Assignee hereby agrees to purchase [_______] Shares
pursuant to the Purchase Agreement and accepts and, severally (but not jointly)
to the extent of the Assignee's pro rata interest in the Purchase Agreement,
assumes and agrees to be bound by REI's (and, where applicable, Purchaser's)
obligations under the Purchase Agreement except that the Assignee does not
assume the obligations of REI under Article XII of the Purchase Agreement. The
parties hereby acknowledge and agree that the obligations of REI under Article
XII of the Purchase Agreement shall remain obligations solely of REI.
3. Representations and Warranties of the Assignee. The Assignee hereby
severally (and not jointly) and to the extent of the Assignee's pro rata
interest in the Purchase Agreement represents and warrants to the Seller as
follows:
[1. Organization; Good Standing; Qualification; and Power. The
Assignee is a company, organization, entity, account or plan
duly organized, validly existing and, to the extent Assignee
is a corporation or other entity, in good standing, under the
laws of the State of its organization. The Assignee has all
requisite power and authority and all governmental licenses,
authorizations, consents and approvals to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby.]1
[2. Authority. [The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby by
the Assignee have been duly authorized by all necessary action
on the part of the Assignee.] This Agreement constitutes a
valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws affecting creditors' rights generally
or by the principles governing the availability of equitable
remedies.
[3. No Conflict or Violation. The execution, delivery and
performance of this Agreement nd the consummation of the
transactions contemplated hereby do not and shall not: [(a)
violate or conflict with the organizational documents of the
Assignee;] (b) violate any provision of law or any order,
judgment, or decree of any court or other governmental or
regulatory authority applicable to the Assignee; or (c)
result in a breach of, or constitute a default (or an event
which, with notice or lapse of time or both would constitute
a default) under, or give rise to any right of termination,
cancellation or acceleration of, or result in the creation
of any Lien upon any of the assets or properties of the
Assigne under , any loan agreement , mortgage , security
agreement, indenture, or other agreement or instrument to
which the Assignee is a party or by which the Assignee is
bound or to which any of its properties or assets is subject
or prohibit the Assignee from consummating the purchase and
sale of the Shares as contemplated hereby.
[4. No Consent. No authorization, consent, approval, exemption, or
other action by or notice to or filing with any court or
administrative or governmental body or any third party is
required to permit the Assignee to execute and deliver this
Agreement, to consummate the transactions contemplated by this
Agreement or to comply with and fulfill the terms and
conditions of this Agreement.
Securities Matters. The Assignee understands that the offering and sale of the
Shares under the Purchase Agreement is intended to be exempt from the
registration requirements of the Securities Act. The Shares are being acquired
by the Assignee for its own account and without a view to the public
distribution of the Shares or any interest therein. The Assignee is an
"accredited investor" as such term is defined in Regulation D promulgated under
the Securities Act. The Assignee is not a broker-dealer subject to Regulation T
promulgated by the Board of Governors of the Federal Reserve System. The
Assignee has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of its investment
in the Shares, and the Assignee is capable of bearing the economic risks of such
investment, including a complete loss of its investment in the Shares. In
evaluating the suitability of an investment in the Shares, the Assignee has
relied upon the representations, warranties, covenants and agreements made by
the Seller in the Purchase Agreement and on such other information regarding the
Company sufficient to allow the Assignee to make an informed decision regarding
purchase of the Shares. The Assignee has not relied upon any other
representations or other information (whether oral or written and including any
estimates, projections or supplemental data) made or supplied by or on behalf of
Seller, the Company or any Affiliate, employee, agent or other representative of
Seller or the Company other than as contemplated by this Section 3.e. The
Assignee acknowledges that Seller has no responsibility for any information
furnished to it other than as set forth in the representations and warranties
made by Seller in the Purchase Agreement. The Assignee understands and agrees
that it may not sell or dispose of any of the Shares other than pursuant to a
registered offering or in a transaction exempt from the registration
requirements of the Securities Act and that the Shares will bear an appropriate
legend to that effect.
[5. Brokers or Finders Commissions. No broker's or finder's fee or
commission or investment banking fee has been or will be
payable, or asserted to be payable by any of the Assignee, the
Seller, the Company or the Subsidiary with respect to the
purchase of the Shares from the Seller or the transactions
contemplated by this Agreement as a result of any agreement
entered into by the Assignee.
[6. Financial Condition. The Assignee has sufficient liquidity
and financial condition to consummate the purchase of the
Shares at Closing.
a. EXCLUSIVITY OF REPRESENTATIONS. THE REPRESENTATIONS AND
WARRANTIES MADE BY THE ASSIGNEE IN THIS AGREEMENT ARE IN LIEU
OF AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES. THE ASSIGNEE
HEREBY DISCLAIMS ANY SUCH OTHER OR IMPLIED REPRESENTATIONS OR
WARRANTIES, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO
SELLER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION.
4. Indemnification by the Assignee. The Assignee shall indemnify and
hold harmless the Seller from and against any and all Indemnity Losses which the
Seller may suffer, incur or become subject to as a result of or in connection
with (a) any breach of any representation or warranty made by the Assignee in
this Agreement and (b) any and all suits, actions, investigations, proceedings,
demands, assessments, audits, and judgments arising out of any of the foregoing.
The obligations of the Assignee pursuant to the foregoing sentence shall be
several (and not joint) with the other Qualified Designees and to the extent of
the Assignee's pro rata interest in the Purchase Agreement. Indemnification of
the Seller by the Assignee shall be pursuant to the terms, conditions and
limitations contained in Sections 12.03, 12.04, 12.06, 12.07 and 12.08 of the
Purchase Agreement (except that the reference to Article VI in Section 12.08
shall be deemed to refer to Section 3 hereof). The representations and
warranties of the Assignee contained in this Agreement shall survive the Closing
indefinitely.
5. Obligations of the Seller. Seller hereby acknowledges the assignment
and assumption of the rights and obligations of REI under the Purchase Agreement
by the Assignee. Seller further acknowledges and affirms that the
representations, warranties, covenants and agreements of Seller contained in the
Purchase Agreement, including without limitation, the obligation to indemnify
the REI Indemnified Parties shall inure to the benefit of the Assignee to the
same extent as though the Assignee were a party to the Purchase Agreement.
6. Stock Price Adjustment. If, on the third anniversary of the date of
this Agreement, the Market Value per Share of the Class A Common Stock of the
Company is less than Eleven and 50/100 Dollars ($11.50) (the amount of any such
deficiency as of such date being referred to as the "Stock Price Deficiency"),
then no later than 15 Business Days thereafter and as additional consideration
for the Shares, the Qualified Designee shall pay in cash to the Seller its pro
rata portion of an amount equal to (a) 22,525, multiplied by (b) the Stock Price
Deficiency. Notwithstanding the above, the Qualified Designee shall have the
right to assign its obligations under this Section to a corporation, partnership
or other entity with the prior written consent of Seller, which consent shall
not be unreasonably withheld, conditioned or delayed, and upon the assumption of
the obligations by such corporation, partnership or other entity, the Qualified
Designee shall be released from its obligations under this Section. For purposes
of this Section, "Market Value per Share" shall mean the average trading price
of one share of Class A Common Stock of the Company over the 20 trading days
ending on the third anniversary of the date of this Agreement as quoted in the
National Quotation Bureau Pink Sheets or on such exchange or in such interdealer
quotation system or other trading market as the Class A Common Stock of the
Company is then quoted.
For purposes of this Agreement, "pro rata" shall mean the ratio
(expressed as a percentage) that the number of Shares purchased by the Qualified
Designee hereunder bears to the total number of Shares purchased by all
Qualified Designees (as set forth on Schedule 1 attached hereto) at the Closing.
7. Miscellaneous.
1. Each party hereto shall be responsible for the fees and
expenses of its accountants, attorneys and advisors and any
other costs and expenses incurred by it in the negotiations
and consummation of the transactions contemplated by this
Agreement.
2. All notices, requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have
been duly given (a) on the date of service if served
personally on the party to whom notice is to be given, (b) on
the day of transmission if sent via facsimile transmission to
the facsimile number given below, provided that telephonic
confirmation of receipt is obtained promptly after completion
of transmission, (c) on the day after delivery to a nationally
recognized overnight courier service or the Express Mail
service maintained by the United States Postal Service, or (d)
on the fifth (5th) day after mailing, if mailed to the party
to whom notice is to be given, by first class mail, registered
or certified, postage prepaid, and addressed as follows:
If to Seller, to:
Xxxxx Creditors Trust
The Chancery
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
With a copy to:
Xx Xxxxxxxx, Esq.
Xxxxxx Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
If to REI, to:
Xxxxxxxx Enterprises, Inc.
c/x Xxxxxxx Xxxxxxx Xxxxxxx & Company, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx, Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
If to the Assignee, to the address and/or fax number set forth below
such Assignee's signature below.
Any party may change its address for the purpose of this Section 6.b.
by giving the other parties written notice of its new address in the manner set
forth above.
3. The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
4. If any provision of this Agreement is declared by any court or
other governmental body to be null, void, or unenforceable,
this Agreement shall be construed so that the provision at
issue shall survive to the extent it is not so declared and
that all of the other provisions of this Agreement shall
remain in full force and effect.
5. This Agreement and the Transaction Documents (and the
schedules hereto and thereto) contain the entire understanding
among the parties hereto with respect to the transactions
contemplated hereby and thereby and supersede and replace all
prior and contemporaneous agreements, understandings,
representations or warranties, oral or written, with regard to
those transactions. All Schedules hereto are expressly made a
part of this Agreement as fully as though completely set forth
herein.
6. This Agreement may be amended or modified, and any of the
terms, covenants, representations, warranties, or conditions
hereof may be waived, only by a written instrument executed by
the parties hereto, or in the case of a waiver, by the party
waiving compliance. Any waiver by any party of any condition,
or of the breach of any provision, term, covenant,
representation, or warranty contained in this Agreement, in
any one or more instances, shall not be deemed to be or
construed as a further or continuing waiver of any condition
or of the breach of any other provision, term, covenant,
representation, or warranty of this Agreement.
7. Nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any Person
other than the Seller, REI and the Assignee and their
respective successors and permitted assigns.
8. Except as contemplated by Section 6 above, no party hereto
shall assign or delegate this Agreement or any rights or
obligations hereunder without the prior written consent of the
other parties hereto, and any attempted assignment or
delegation without prior written consent shall be void and of
no force or effect. This Agreement shall inure to the benefit
of and shall be binding upon the successors and permitted
assigns of the parties hereto.
9. This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York
applicable to contracts made and to be performed in such
state.
10. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall together
constitute the same instrument.
11. Assignee hereby appoints REI as its authorized representative
for purposes of executing and delivering the receipt specified
in Section 3.03(d) of the Purchase Agreement and hereby
authorizes and directs REI to deliver such receipt upon
Seller's delivery and REI's receipt of the items described in
Section 3.02 of the Purchase Agreement.
[Signatures follow next page.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
"REI"
XXXXXXXX ENTERPRISES, INC.
By:______________________________________
Its:______________________________________
"SELLER"
XXXXX CREDITORS TRUST
By:______________________________________
Xxxxxxx X. Xxxxx, Trustee
By:______________________________________
Xxxxxx X. Xxxxx, Trustee
By:______________________________________
Xxxx X. Xxxxxxx, Trustee
"ASSIGNEE"
-----------------------------------------
Address:__________________________________
Telephone No. (___) _______________________
Fax No. (___) _____________________________
SCHEDULE 1
Other Qualified Designees
Qualified Designee Number of Shares
EXHIBIT B
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "Agreement") is entered into this day
of May, 1999, among the Persons identified as "Stockholders" on the signature
pages of this Agreement and any other person who hereafter becomes a holder of
Participating Common Stock (as defined in Section 12) and who becomes a party to
this Agreement (hereinafter sometimes each referred to as a "Stockholder" and
collectively as "Stockholders").
Preliminary Statements
8. The authorized capital stock of Xxxxxxxx Industries, Inc., a
Delaware corporation (the "Company"), consists of 1,480,000
shares of Class A Common Stock, par value $0.01 per share, and
1,020,000 shares of Class B Common Stock, par value $0.01 per
share. There are 978,956 shares of Class A Common Stock
outstanding on the date of this Agreement, which are held by
various stockholders. All of the shares of Class B Common
Stock are outstanding and are held by Xxxxx Creditors Trust
(the "Trust").
9. Pursuant to a certain Stock Purchase Agreement dated May ,
1999 (the "Purchase Agreement"), the Trust agreed to sell to
Xxxxxxxx Enterprises, Inc. ("REI") or its Qualified Designees
997,475 shares of Class B Common Stock of the Company.
10. The Stockholders are the Qualified Designees under the
Purchase Agreement, and each has agreed to purchase that
number of shares of Participating Common Stock set forth on
Schedule 1 hereto.
11. Pursuant to the Certificate of Incorporation of the Company,
upon the sale of the Class B Common Stock pursuant to the
Purchase Agreement, each share of the Class B Common Stock
will convert into Class A Common Stock without further action
of the holders.
12. The Stockholders hereby agree to certain terms and conditions
relevant to the transfer of the Participating Common Stock as
set forth in this Agreement.
Terms and Conditions
In consideration of the mutual covenants and agreements contained in
this Agreement, and intending to be legally bound, the parties agree as set
forth herein. Capitalized terms have the meanings set forth in Section 12 or as
otherwise defined in this Agreement or the Purchase Agreement.
Section 1. [Reserved].
Section 2. Restrictions on Transfer.
(a) None of the Stockholders shall, directly or indirectly,
offer, sell, transfer or dispose of any Participating Common Stock
without offering the Remaining Stockholders the right of first refusal
in the manner provided in Section 3, except (i) to another Stockholder,
provided the Participating Common Stock so disposed of continues to be
subject to this Agreement, (ii) for gifts or bequests to any person or
distributions from a trust to the beneficiaries thereof, provided that
(A) the transferor shall have obtained and delivered to the Company the
recipient's agreement in a written instrument to be bound by the
provisions of this Agreement applicable to the Stockholders and (B) the
recipient shall be deemed to be a Stockholder for all purposes of this
Agreement, (iii) for sales or exchanges pursuant to mergers, tender
offers or similar transactions which the Board of Directors of the
Company either approves or does not oppose, and (iv) for sales or other
dispositions approved in advance by a majority of the Board of
Directors of the Company.
(b) Notwithstanding any other provision contained in this
Agreement, on or prior to the third anniversary of the date of this
Agreement, no Stockholder shall (i) acquire any additional shares of
Common Stock of the Company (other than by way of stock dividends,
stock splits or other distributions made to all stockholders of the
Company pro rata) or (ii) offer, sell, transfer or dispose of any
Participating Common Stock if such offer, sale, transfer or disposition
would trigger the net operating loss limitations of Internal Revenue
Code Section 382 with respect to the Company.
(c) No sale or transfer (as defined in Section 12 of this
Agreement) of any of the Participating Common Stock shall be valid (and
the Stockholders shall cause the Company not to take any action to
implement, acknowledge or record any transfer of Participating Common
Stock) unless the Stockholder holding the Participating Common Stock
has complied with the terms and conditions of this Agreement prior to
the sale or transfer.
Section 3. Conditions to Transfer by the Stockholders.
(a) Except as provided in Section 2(a), prior to the transfer
of Participating Common Stock by a Stockholder, the transferring
Stockholder shall first notify the Remaining Stockholders in writing at
least 30 days in advance of the intended transfer. The notice shall
contain all of the terms of the proposed transfer, including, without
limitation and to the extent available, the name and address of the
prospective transferee, the purchase price and other terms and
conditions of payment (or the minimum purchase price or basis for
determining the minimum purchase price and minimum acceptable other
terms and conditions), the date on or about which the transfer is to be
made, the number of shares of Participating Common Stock to be
transferred (the "Offered Shares"), and the percentage of the
Stockholder's total holdings of the Participating Common Stock that
those shares represent (the "Stockholder's Notice").
(b) Except as provided in Section 3(g), within 15 days after
receipt of the Stockholder's Notice each Remaining Stockholder shall be
entitled to purchase from the transferring Stockholder a number of the
Offered Shares which number shall not exceed such Remaining
Stockholder's pro rata share of the Offered Shares and may notify the
transferring Stockholder and the other Remaining Stockholders (an
"Initial Purchase Notice") that the Remaining Stockholder will purchase
on the same terms set forth in the Stockholder's Notice up to his pro
rata share of the Offered Shares. For purposes of this Section, "pro
rata share" of the Offered Shares shall be determined by the ratio
(expressed as a percentage) that the number of shares of Participating
Common Stock held by the Remaining Stockholder bears to the total
number of shares of Participating Common Stock held by all of the
Remaining Stockholders.
(c) If any of the Remaining Stockholders fails to deliver an
Initial Purchase Notice as provided above or delivers an Initial
Purchase Notice but does not elect to purchase his full pro rata share,
any other Remaining Stockholder may, within ten days after expiration
of the Initial Purchase Period, notify the transferring Stockholder and
the other Remaining Stockholders (a "Secondary Purchase Notice") that
such other Remaining Stockholder will purchase all or any portion of
the Offered Shares that were not the subject of an Initial Purchase
Notice on the same terms set forth in the Stockholder's Notice.
(d) If more than one Remaining Stockholder delivers a
Secondary Purchase Notice to the transferring Stockholder and the other
Remaining Stockholders, each Remaining Stockholder desiring to purchase
the Offered Shares shall be entitled to purchase a number of such
shares equal to the product of (i) the total number of Offered Shares
(as set forth in the Stockholder's Notice), multiplied by (ii) the
ratio (expressed as a percentage) that the number of shares of
Participating Common Stock held by the Remaining Stockholder bear to
the total number of shares of Participating Common Stock held by all of
the Remaining Stockholders who have elected to purchase Offered Shares
pursuant to a Secondary Purchase Notice. Each Initial Purchase Notice
and the Secondary Purchase Notice pursuant to this Section 3 when taken
together with the Stockholder's Notice shall constitute a legal, valid,
binding and enforceable contract between the transferring Stockholder
and the Remaining Stockholder(s) on the terms and conditions set forth
therein.
(e) Except as provided in Section 3(g), after compliance with
the terms of this Section 3 and subject to the terms of Section 4, the
transferring Stockholder may transfer such Stockholder's Participating
Common Stock, but only on the same terms and conditions as those
contained in the Stockholder's Notice. If the sale to the third party
is not consummated at the time and on substantially the same terms as
set forth in the Stockholder's Notice, or if the terms of the sale are
materially altered, then the Offered Shares shall once again be subject
to the right of first refusal set forth in this Section 3.
(f) Except as provided in Section 3(g), all Participating
Common Stock transferred to any Person pursuant to Section 3(e) shall
remain subject to the restrictions set forth in Section 2(b) of this
Agreement, and each transferee shall have agreed in writing to be bound
by the restrictions set forth in Section 2(b) as though such transferee
were a Stockholder hereunder.
(g) Notwithstanding the above, the terms of Sections 3(b)
through 3(f) shall not apply in the event of sales of Participating
Common Stock in a registered public offering effected pursuant to the
terms of the Registration Rights Agreement.
Section 4. Co-Sale Rights.
(a) Upon delivery of a Stockholder's Notice proposing to
effect a sale or transfer of shares of Participating Common Stock to a
person other than a Stockholder, each Remaining Stockholder (including
any Remaining Stockholder who fails to exercise the right of first
refusal pursuant to Section 3) shall have the option to participate in
such sale in the manner hereinafter set forth.
(b) To exercise the option, a Remaining Stockholder shall give
a written notice of election to the transferring Stockholder within
five days after the expiration of the period within which the right of
first refusal described in Section 3 is to be exercised. All Remaining
Stockholders who timely give such notice (the "Co-Selling
Stockholders"), shall have the right to sell their Participating Common
Stock to the proposed purchaser upon the same terms and conditions
specified in the Stockholder's Notice pro rata with the transferring
Stockholder according to the ratio of the number of shares of
Participating Common Stock owned by such Co-Selling Stockholder to the
total number of shares of Participating Common Stock owned by all
Stockholders whose shares are to be sold. The number of shares of
Participating Common Stock to be sold by the transferring Stockholder
shall be reduced by the number of such shares the Co-Selling
Stockholders elect to so sell. Each Co-Selling Stockholder shall bear
his pro rata share of the expenses incident to such sale.
(c) No Co-Selling Stockholder shall be required to make any
representation or warranty in connection with the sale or transfer of
Participating Common Stock pursuant to this Section 4 other than as to
the Co-Selling Stockholder's ownership and authority to sell the
Participating Common Stock proposed to be sold by him free of liens,
claims and encumbrances, but each Co-Selling Stockholder shall be
required to bear his proportionate share of any liability for indemnity
obligations up to but in no event in excess of the net proceeds
received by the Co-Selling Stockholder for the Participating Common
Stock sold by him pursuant to this Section 4.
(d) Failure by the Remaining Stockholders to exercise the
option within the five- day period shall be deemed a declination of any
right to participate in such sale, provided that such sale is completed
within 120 days of the expiration of such five-day period at a price
and on terms and conditions substantially similar to those set forth in
the Stockholder's Notice. If the sale to the third party is not
consummated within such period or if the terms of sale are materially
altered, then the Remaining Stockholders must be given another
opportunity to participate pursuant to the provisions of this Section
4.
(e) Notwithstanding the foregoing, the co-sale rights of the
Stockholders shall not apply in the event of an offer, sale or transfer
of Participating Common Stock held by the personal representative or
estate of any Stockholder to the extent that the Participating Common
Stock is being offered, sold or transferred to a third party in order
to obtain funds to pay federal or state taxes on behalf of the estate;
provided that the personal representative or estate shall have obtained
the recipient's agreement in a written instrument to be bound by the
provisions of the Agreement and the recipient shall be deemed to be a
Stockholder for all purposes of this Agreement.
(f) Notwithstanding the above, the terms of this Section 4
shall not apply to sales of Participating Common Stock in a registered
public offering effected pursuant to the Registration Rights Agreement
if co-sale of the Co-Selling Stockholders' Participating Common Stock
is not permitted by the Registration Rights Agreement or by the
Company.
Section 5. Term. This Agreement shall be effective as of the date first
written above and will terminate on the date on which the Stockholders or their
permitted assigns cease to hold the Participating Common Stock.
Section 6. Parties Bound by Agreement. All of the terms and provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective personal representatives, heirs, successors and
assigns, including, without limitation, all subsequent holders of securities who
become bound by the terms of this Agreement.
Section 7. Endorsement on Stock Certificates. A copy of this Agreement
shall be delivered to the Company to be kept on file at its registered office,
and all certificates representing Participating Common Stock will be endorsed
conspicuously as follows:
The shares of Common Stock represented by this certificate are
subject to, and transferable only in accordance with, a
Stockholders Agreement, dated as of May 21, 1999, a copy of
which agreement is on file with the Secretary of the Company
at its registered office.
Section 8. [Reserved].
Section 9. Enforcement. The parties agree that there will be
irreparable damage if this Agreement is not specifically enforced or if a breach
or anticipated breach is not enjoined. If any Person who is required by this
Agreement to perform an act refuses to perform that act, one or more of the
parties to this Agreement may institute and maintain proceedings to compel the
specific performance of this Agreement by the Person in default. In addition, if
any Person breaches this Agreement or if a breach is reasonably anticipated, one
or more parties to this Agreement may institute and maintain proceedings to
enjoin any breach or anticipated breach, or to compel specific performance of
this Agreement, and may obtain an injunction against a breach or reasonably
anticipated breach.
Section 10. Applicable Law and Choice of Forum. The parties affirm that
this Agreement has been entered into in the State of Indiana and will be
governed by and construed in accordance with the laws of the State of Indiana,
notwithstanding any state's choice of law rules to the contrary. Further, the
parties expressly agree that any and all actions concerning any dispute arising
under this Agreement will be filed and maintained only in a state or federal
court sitting in the State of Indiana, and each party consents and submits to
the jurisdiction of that state or federal court.
Section 11. Notices. All notices hereunder will be in writing and will
be deemed to have been duly given if delivered in person, if mailed by first
class certified or registered mail, postage prepaid, or if sent by expedited
courier service, shipping billed to shipper, not later than the day upon which
notice is required or desired to be given pursuant to this Agreement, addressed
as follows:
(a) If to a Stockholder, to the address last shown on the
records of the Company.
(b) If to the legal representative, heirs, or legatees of the
Stockholder, to the address, if any, provided to the
Company with the tender of the Participating Common Stock
for transfer as specified in Section 3.
By giving notice in writing to the Secretary, a Stockholder may change the
address to which notice to him, her or it should thereafter be sent.
Section 12. Definitions. In this Agreement, the following words have
the meanings specified below:
(a) The term "Participating Common Stock" shall mean and
include all shares of the Company's Common Stock (regardless of class)
owned by any Stockholder from time to time, including without
limitation any such shares so owned on the date of this Agreement, any
such shares acquired from the Trust pursuant to the Purchase Agreement
and any such shares acquired after the date of this Agreement. All
Company shares acquired by a Stockholder after the date of this
Agreement shall be deemed to be Participating Common Stock upon
acquisition unless such shares are acquired in the open market in a
transaction that is otherwise permitted by this Agreement.
(b) The term "Person" includes, but is not limited to, an
individual or fiduciary, a trust, an estate, a partnership, an
association, a company, and any similar entity.
(c) The term "Remaining Stockholders" with respect to any
Stockholder's Notice delivered in accordance with Section 3 means the
Stockholder or Stockholders who have not delivered such Stockholder's
Notice proposing to sell or transfer shares of Participating Common
Stock pursuant to the terms of this Agreement.
(d) The term "Secretary" means the Secretary of the Company.
(e) Except as set forth in the next sentence, the terms
"sale," "sell," "transfer" and the like shall include any assignment,
transfer or other disposition, with or without consideration, to any
Person for any purpose. The terms "sale," "sell," "transfer" and the
like shall not include a transfer of Participating Common Stock to (i)
the spouse or any parent, child, grandchild or sibling of the
transferring Stockholder or (ii) a trust established for the benefit of
one of the Persons specified in subparagraph (i); provided, however,
the transfer shall be exempt from the provisions of this Agreement only
if all transferees (and in the case of a minor the Person(s) holding
the shares for the benefit of the minor and who can make a binding
obligation with respect to the Participating Common Stock transferred
to the minor) agree in writing prior to the transfer to be bound by the
terms and conditions of this Agreement as an additional "Stockholder."
(f) The term "Registration Rights Agreement" means that
certain Registration Rights Agreement dated July 31, 1996 between the
Company and Xxxxx Creditors Trust.
Section 13. Severability. The invalidity or unenforceability of any
particular provision of this Agreement will not affect the other provisions of
this Agreement, and this Agreement will be construed in all respects as if the
invalid or unenforceable provisions were omitted.
Section 14. Modification. No change or modification of this Agreement
will be valid unless it is in writing and duly executed by all the parties, or
their successors and assigns; provided, that a permitted subsequent holder of
securities may become bound by the terms of this Agreement pursuant to a written
instrument signed by such holder without the signature of the other parties
hereto.
Section 15. No Waiver. The failure of any party to insist upon the
performance of any provision of this Agreement or to pursue any right under this
Agreement will not be deemed a waiver of that or any other provision or the
relinquishment of any right.
Section 16. Gender. Reference to or the use of terms herein relating to
gender, whether male, female or neutral, will not be construed so as to limit
the applicability of the terms or conditions of this Agreement to such gender or
genders.
Section 17. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be considered an original. Only one counterpart
of this Agreement executed by the party against which it would be enforced need
be provided to evidence this Agreement. One counterpart will be delivered to
each Stockholder and one to the Company.
Section 18. Costs. Each Stockholder agrees to pay his pro rata share of
the fees and expenses of Ice Xxxxxx Xxxxxxx & Xxxx and Flackman, Xxxxxxx &
Potter associated with purchase by the Stockholders from the Trust of
Participating Common Stock pursuant to the Purchase Agreement.
Section 19. No Third Party Beneficiaries. The provisions of this
Agreement are not intended to, and shall not, benefit any Person other than the
parties to this Agreement, and the provisions hereof are not intended to, and
shall not create any third party beneficiary right in any Person.
[Signatures follow next page.]
The parties have signed this Agreement on the date first above written.
STOCKHOLDERS"
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:_____________________________________
Printed:__________________________________
Title:___________________________________
MASS MUTUAL HIGH YIELD PARTNERS II LLC
By:_____________________________________
Printed:__________________________________
Title:___________________________________
MASS MUTUAL CORPORATE VALUE PARTNERS LIMITED
By:_____________________________________
Printed:__________________________________
Title:___________________________________
----------------------------------------
Xxxxxx XxXxxxx, XX
----------------------------------------
Ward S. XxXxxxx
XXXXXX MANAGEMENT, IV, L.P.
By:_____________________________________
Printed:__________________________________
Title:___________________________________
BJR MANAGEMENT IV, L.P.
By:_____________________________________
Printed:__________________________________
Title:___________________________________
ECM MANAGEMENT, L.P.
By:_____________________________________
Printed:__________________________________
Title:___________________________________
XXXXX XXXXXXX, TRUSTEE FOR THE XXXXX XXXXXXX MONEY
PURCHASE PLAN FOR BENEFIT OF XXXXX SCOLNIKACT. #OZJ-
R47960-80
By:_____________________________________
Xxxxx Xxxxxxx, trustee
XXXXX X.XXXXXXX, XX.TRUSTEE FOR THE XXXXX X.XXXXXXX,
XX. MPP FBO XXXXX X. XXXXXXX, XX. TCM-RO9603
By:_____________________________________
Xxxxx X. Xxxxxxx, Xx., Trustee
XXXXXXX X.XXXXXXX, XX.TRUSTEE FOR XXXXXXX X.XXXXXXX,
XX. PS PLAN DATED 12/28/89
By:_______________________________________
Xxxxxxx X. Xxxxxxx, Xx., Trustee
SCHEDULE 1
STOCKHOLDER NUMBER OF SHARES PURCHASED
Massachusetts Mutual Life Insurance Company 314,205
MassMutual High Yield Partners II LLC 314,204
MassMutual Corporate Value Partners Limited 119,697
Xxxxxx XxXxxxx, XX 14,599
Xxxx X. XxXxxxx 10,869
Xxxxxx Management IV, L.P. 46,737
BJR Management, L.P. 23,368
ECM Management, L.P. 23,368
Xxxxx Xxxxxxx, trustee for the Xxxxx Xxxxxxx Money 43,476
Purchase Plan for benefit of Xxxxx Xxxxxxx Act.
#OZJ-R47960-80
Xxxxx X. Xxxxxxx, Xx. Trustee for the Xxxxx X. Xxxxxxx, 43,476
Jr. MPP FBO Xxxxx X. Xxxxxxx, Xx. TCM-RO9603
Xxxxxxx X. Xxxxxxx, Xx., Trustee for Xxxxxxx X. Xxxxxxx, 43,476
Jr. PS Plan dated 12/28/89
TOTAL 997,475
