EXHIBIT 1
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"),
dated January 18, 1996, by and among TCW SPECIAL CREDITS, a California
general partnership, for itself (in its individual capacity, "TCW") and as
general partner or investment manager for the entities (other than TCW
Trust (as defined below)) set forth on Schedule I attached hereto (each
entity set forth on Schedule I (including TCW Trust), a "Selling
Shareholder" and, collectively, the "Selling Shareholders"), TRUST COMPANY
OF THE WEST, a California corporation, for itself (in its individual
capacity, "Trust") and as trustee for TCW Special Credits Trust, a
California collective investment trust ("TCW Trust"), and RESOURCE GROUP
INTERNATIONAL, INC., a Washington corporation ("Purchaser").
WITNESSETH:
WHEREAS, the Common Stock, par value $0.01 per share (including the
common stock purchase rights associated therewith, the "Common Stock"), of
Xxxxx Equity, Inc., a Florida corporation (the "Company"), is publicly
traded on the American Stock Exchange under the symbol "KE";
WHEREAS, the Selling Shareholders collectively own and desire to sell
2,449,571 shares of the Company's Common Stock as more particularly set
forth on Schedule I attached hereto under the headings "Initial Shares"
and "Secondary Shares" (as appropriately adjusted as necessary to reflect
a stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares"), which Shares
constitute approximately 13.8% of the total issued and outstanding shares
of Common Stock;
WHEREAS, TCW acts as general partner of, or investment manager to,
each of the Selling Shareholders (other than TCW Trust) and, in such
capacity, has the authority to take certain actions on behalf of the
Selling Shareholders (other than TCW Trust) and has or shares the power to
vote or dispose of, or to direct the voting or disposition of, the Shares
(other than those owned by TCW Trust);
WHEREAS, Trust acts as trustee of TCW Trust and, in such capacity,
has the authority to take certain actions on behalf of TCW Trust and has
or shares the power to vote or dispose of, or to direct the voting or
disposition of, the Shares owned by TCW Trust;
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
WHEREAS, the Selling Shareholders require, and the Purchaser wishes
to provide, certain assurance regarding the minimum consideration which
each Selling Shareholder is entitled to receive with respect to the sale
of the number of shares of Common Stock set forth opposite the name of
such Selling Shareholder during the time period set forth in Section 12;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
conditions of this Agreement, (i) on the Initial Closing Date (as
hereinafter defined) the Selling Shareholders shall sell to Purchaser, and
Purchaser shall purchase from the Selling Shareholders, the Shares set
forth on Schedule I hereto under the heading "Initial Shares" (the
"Initial Shares") and (ii) on the Second Closing Date (as hereinafter
defined), the Selling Shareholders shall sell to Purchaser, and Purchaser
shall purchase from the Selling Shareholders, the Shares set forth on
Schedule I hereto under the heading "Secondary Shares" (the "Secondary
Shares").
2. Purchase Price.
(a) The purchase price (the "Purchase Price") payable per Share
to be purchased by Purchaser hereunder shall be, as of any date, $12.00
(appropriately adjusted as necessary to reflect a stock split, stock
dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction with respect to the Common Stock), plus interest
on such amount from January 1, 1996 through the date on which the Closing
(as hereinafter defined)) with respect to such Share occurs at a rate of
5% per annum, compounded monthly, based on a year of 366 days.
(b) All amounts payable by Purchaser to the Selling
Shareholders pursuant to this Section 2 shall be paid by wire transfer of
immediately available funds in accordance with the wire transfer
instructions set forth on Schedule I hereto.
3. Representations and Warranties of TCW, Trust and Selling
Shareholders. TCW, Trust and the Selling Shareholders (each on behalf of
and with respect to itself) make the following representations and
warranties to Purchaser, each of which is true and correct on the date
hereof, shall remain true and correct to and as of the Second Closing (as
hereinafter defined) (except for representations and warranties with
respect to the Initial Shares, which shall remain true and correct to and
as of the Initial Closing (as hereinafter defined)) and shall survive the
Closings:
(a) Each of TCW and Trust is duly organized, validly existing
and in good standing under the laws of the State of California. Each of
TCW and Trust has all requisite entity power and authority to enter into
this Agreement and the other documents and instruments to be executed and
delivered by TCW and Trust, respectively, and to carry out the
transactions contemplated hereby and thereby. All entity actions and
proceedings necessary to be taken by or on the part of each of TCW and
Trust in connection with the transactions contemplated by this Agreement
have been duly and validly taken.
(b) Each of TCW and Trust has the power and authority under the
terms and provisions of a partnership, trust or other written agreement
with, or concerning the governance of, each of the Selling Shareholders
(other than TCW Trust) and TCW Trust, respectively, to enter into this
Agreement on behalf of such Selling Shareholder and to make the
representations and warranties set forth herein on such Selling
Shareholder's behalf.
(c) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by (i) TCW for
itself and on behalf of the Selling Shareholders (other than TCW Trust)
and (ii) Trust for itself and on behalf of TCW Trust, and the consummation
of the transactions contemplated hereby and thereby, have been duly
authorized by TCW and Trust, respectively.
(d) No other act or proceeding on behalf of TCW, Trust or any
Selling Shareholder is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by TCW, Trust and
the Selling Shareholders pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement has been
duly and validly executed and delivered by TCW, Trust and the Selling
Shareholders and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by TCW, Trust and
the Selling Shareholders pursuant hereto will constitute, valid and
binding agreements of each of TCW, Trust and the Selling Shareholders
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforceability of creditors' rights
generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of
notice or the lapse of time, or both, (i) conflict with or result in any
violation of or default under (a) any provision of the articles of
incorporation, partnership agreement, bylaws, trust agreement or other
governing document, of TCW, Trust or any Selling Shareholder, (b) any
note, bond, mortgage, indenture, lease, agreement or other material
instrument, permit, concession, grant, franchise or license to which TCW,
Trust or any Selling Shareholder is a party or by which any of their
properties or assets may be bound (provided that no representation or
warranty is being made under this clause (b) as to the Amended and
Restated Articles of Incorporation of the Company (as the same may be
further amended from time to time, the "Articles")) or (c) any judgment,
order, decree, injunction, statute, rule, permit, license or regulation
applicable to TCW, Trust any Selling Shareholder or any of their
respective properties, or (ii) result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of TCW, Trust or any Selling Shareholder. No
authorization, consent or approval of, or declaration of, filing with or
notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by TCW, Trust or any
Selling Shareholder.
(e) The Selling Shareholders are the owners of the Shares in
the amounts set forth in Schedule I hereto, free and clear of all liens,
claims, charges and other encumbrances (subject to any encumbrances
imposed thereon or with respect thereto by the Articles or the
restrictions on transfer contained in any applicable securities laws) and
the Shares are held by Sanwa Bank & Trust, as custodian, through an
account on the book entry system maintained by the Depositary Trust
Corporation. Upon the Initial Closing and the Second Closing, the Selling
Shareholders shall convey to Purchaser or its permitted designee or
assignee good and marketable title to the Initial Shares and the Secondary
Shares, respectively, in each case free and clear of all liens, claims,
charges and other encumbrances (subject to any encumbrances imposed
thereon or with respect thereto by the Articles or the restrictions on
transfer contained in any applicable securities laws). None of the
Selling Shareholders has any right, directly or indirectly, to purchase or
has any interest in any shares of Common Stock other than the Shares and
those shares of Common Stock described in filings on Schedule 13D (as it
may be amended from time to time) made collectively by TCW and certain
other parties.
(f) Neither the Selling Shareholders nor any directors,
partners, officers, employees or agents thereof has retained, employed or
used any broker or finder in connection with the transactions provided for
herein or in connection with the negotiation thereof.
(g) None of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited
any offer to buy any such Shares, by means of any general advertising or
by any other form of general solicitation. None of the Selling Share-
holders has offered, directly or indirectly, any Shares beneficially owned
thereby for sale, nor solicited any offer to buy any such Shares, in any
other manner that would require the sale of the Shares to be subject to
the registration requirements of the Securities Act of 1933, as amended.
Each of the Selling Shareholders confirms that it did not acquire any
Shares with a view to, or for, resale in connection with any distribution
thereof within the meaning of the Securities Act of 1933, as amended,
which would not be exempt from the registration requirements of such Act.
4. Representations and Warranties of Purchaser. Purchaser makes
the following representations and warranties to TCW, Trust and the Selling
Shareholders, each of which is true and correct on the date hereof, shall
remain true and correct to and as of the Second Closing, and shall survive
the Closings:
(a) Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Washington. Purchaser
has all requisite corporate power to enter into this Agreement and the
other documents and instruments to be executed and delivered by Purchaser
pursuant hereto and to carry out the transactions contemplated hereby and
thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser
pursuant hereto and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by the Board of Directors of
Purchaser. No other corporate act or proceeding on the part of Purchaser
or its shareholders is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by Purchaser
pursuant hereto or the consummation of the transactions contemplated
hereby and thereby. This Agreement constitutes, and when executed and
delivered, the other documents and instruments to be executed and
delivered by Purchaser pursuant hereto will constitute, valid and binding
agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally, and by
general equitable principles.
(c) Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated herein
will, with or without the giving of notice or the lapse of time, or both,
(i) conflict with or result in any violation of or default under (a) any
provision of the Articles of Incorporation or the bylaws of Purchaser,
each as amended and/or restated to date, (b) any note, bond, mortgage,
indenture, lease, agreement or other material instrument, permit,
concession, grant, franchise or license to which Purchaser is a party or
by which any of its properties or assets may be bound (provided that no
representation or warranty is being made under this clause (b) as to the
Articles) or (c) any judgment, order, decree, injunction, statute, rule,
permit, license or regulation applicable to Purchaser or any of its
properties, or (ii) which result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of Purchaser. Except as contemplated by Section
6(a), no authorization, consent or approval of, or declaration of, filing
with or notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers,
employees or agents has retained, employed or used any broker or finder in
connection with the transaction provided for herein or in connection with
the negotiation thereof.
(e) Purchaser is a sophisticated investor capable of evaluating
the merits and risks of investment in the Shares and of making an informed
investment decision with respect thereto. Purchaser acknowledges that it
has conducted its own review of the documents filed by the Company with
the Securities and Exchange Commission (including, without limitation, any
exhibits or schedules) and that neither TCW, Trust nor any of the Selling
Shareholders is making any representations or warranties with respect to
such documents (other than agreements to which TCW, Trust or a Selling
Shareholder is a party) or their applicability to any of the transactions
contemplated hereby. Neither TCW, Trust nor any Selling Shareholder has
made any representation or warranty to Purchaser other than those set
forth in Section 3. The Shares are being acquired by Purchaser for
investment only and not with a view to resale or other distribution.
Purchaser acknowledges and understands that the Shares being acquired
hereunder shall have the status of securities acquired in a transaction
under Section 4(2) of the Securities Act of 1933, as amended, and cannot
be resold without registration under such Act or an exemption therefrom.
Purchaser acknowledges and understands that TCW and the Selling
Shareholders have a representative serving on the Company's Board of
Directors.
(f) Purchaser has a tangible net worth in excess of $100
million and Purchaser has cash or cash equivalents available in an amount
sufficient to consummate the transactions contemplated hereby.
5. Covenants of TCW, Trust and the Selling Shareholders.
(a) From the date hereof until the later of (i) the forty-fifth
day after the Initial Closing Date and (ii) the earlier of (x) the
sixtieth day after the Initial Closing Date and (y) three (3) business
days after the date on which the condition set forth in Section 7(b)(ii)
shall have been satisfied (the "Blackout Period"), each of the Selling
Shareholders covenants and agrees that it will not transfer any of the
Shares, except to Purchaser pursuant hereto.
(b) TCW, Trust and the Selling Shareholders covenant and agree
to cooperate with Purchaser and the Company in causing the event in
Section 7(b)(ii) to occur including, without limitation, responding to any
inquiries from the Federal Trade Commission (the "FTC") or the United
States Department of Justice ("DOJ").
(c) TCW, Trust and the Selling Shareholders covenant and agree
to assign their respective rights under the Registration Rights Agreement,
dated as of August 9, 1993, by and between the Company and TCW, with
respect to any Shares purchased hereunder, but only if such assignment is
consented to by the Company and otherwise constitutes a valid assignment
in accordance with such agreement.
6. Covenants of Purchaser.
(a) Purchaser covenants and agrees that, as soon as possible
(but in no event later than five (5) business days) after the Initial
Closing, Purchaser shall prepare and file all documents with the FTC and
the DOJ as are required to be filed by Purchaser pursuant to the Xxxx-
Xxxxx-Xxxxxx Act of 1976, as amended (the "HSR Act") with respect to the
Second Closing and shall furnish promptly all materials thereafter
requested by any of the regulatory agencies having jurisdiction over such
filings by Purchaser.
(b) Purchaser covenants and agrees that after the Initial
Closing, Purchaser shall use commercially reasonable efforts to cause the
condition set forth in Sections 7(b)(ii) to be satisfied.
7. Conditions Precedent to Purchaser's Obligations.
(a) Each and every obligation of Purchaser to be performed on
any Closing Date (as hereinafter defined) shall be subject to the
satisfaction prior to or at the Closing on such date of each of the
following conditions:
(i) Each of the representations and warranties made by
TCW, Trust and each Selling Shareholder in this Agreement shall be true
and correct in all material respects when made and shall be true and
correct in all material respects at and as of such Closing Date as though
such representations and warranties were made or given on and as of such
Closing Date, except for any representation or warranty that expressly
indicates that it is being made as of a specific date.
(ii) Each of TCW, Trust and the Selling Shareholders shall
have in all material respects performed and complied with all of its
agreements and obligations under this Agreement which are to be performed
or complied with by it prior to or on such Closing Date, including the
delivery of the closing documents specified in Section 10.
(iii) No injunction or restraining order shall have been
issued by any court of competent jurisdiction that enjoins consummation of
the transactions contemplated hereby.
(b) Each and every obligation of Purchaser to be performed on
the Second Closing Date shall be subject to the satisfaction prior to or
at the Second Closing of each of the following conditions:
(i) The Initial Closing shall have been consummated in
accordance with the terms of this Agreement.
(ii) All applicable waiting periods shall have expired or
early termination shall have been received under the HSR Act to consummate
the Second Closing.
(c) Each and every obligation of Purchaser under Section 12
shall be subject only to the satisfaction prior to the date on which such
obligations mature of the following conditions:
(i) Each of the representations and warranties made by
TCW, Trust and each Selling Shareholder in this Agreement shall be true
and correct in all material respects when made and shall be true and
correct in all material respects at and as of the last day of the Blackout
Period as though such representations and warranties were made or given on
and as of such date, except for any representation or warranty that
expressly indicates that it is being made as of a specific date.
(ii) Each of TCW, Trust and the Selling Shareholders shall
have in all material respects performed and complied with all of its
agreements and obligations under this Agreement which are to be performed
or complied with by it prior to or on such date.
8. Conditions Precedent to Selling Shareholders' Obligations.
(a) Each and every obligation of the Selling Shareholders to be
performed on any Closing Date shall be subject to the satisfaction prior
to or at the Closing on such date of the following conditions:
(i) Each of the representations and warranties made by
Purchaser in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects
at and as of such Closing Date as though such representations and
warranties were made or given on and as of such Closing Date.
(ii) Purchaser shall have in all material respects
performed and complied with all of its agreements and obligations under
this Agreement which are to be performed or complied with by it prior to
or on such Closing Date, including the delivery of the closing documents
specified in Section 11.
(iii) No injunction or restraining order shall have been
issued by a court of competent jurisdiction that enjoins consummation of
the transactions contemplated hereby.
(b) Each and every obligation of the Selling Shareholders to be
performed on the Second Closing Date shall be subject to the satisfaction
prior to or at the Second Closing of each of the following conditions:
(i) The Initial Closing shall have been consummated in
accordance with the terms of this Agreement.
(ii) The Second Closing Date shall occur prior to the
expiration of the Blackout Period.
9. Closings. The closing of (i) the purchase and sale of the
Initial Shares (the "Initial Closing") and (ii) the purchase and sale of
the Secondary Shares (the "Second Closing" and, together with the Initial
Closing, the "Closings") shall take place on January 19, 1996, in the case
of the Initial Closing, and on the third business day following
satisfaction of the condition set forth in Section 7(b)(ii), in the case
of the Second Closing, or at such other time and place as the parties
hereto shall agree upon. The date on which the Initial Closing or the
Second Closing occurs is referred to in this Agreement as the "Initial
Closing Date" or the "Second Closing Date," respectively, and such dates
shall be collectively referred to in this Agreement as the "Closing
Dates."
10. Documents to Be Delivered by TCW, Trust and the Selling
Shareholders at the Closings. At each of the Closings, TCW, Trust or the
Selling Shareholders, as the case may be, shall deliver, or cause to be
delivered, to Purchaser or its wholly-owned designee the following
documents, in each case duly executed or otherwise in proper form:
(a) Either (i) stock certificates duly endorsed for transfer or
with duly executed stock powers attached thereto, representing the Initial
Shares, in the case of the Initial Closing, and representing the Secondary
Shares, in the case of the Second Closing, or (ii) other customary
evidence of transfer of the Initial Shares, in the case of the Initial
Closing, and of the Secondary Shares, in the case of the Second Closing.
(b) A certificate signed by a duly authorized general partner
of TCW on behalf of TCW and the Selling Shareholders (other than TCW
Trust), and a duly authorized officer of Trust on behalf of Trust and TCW
Trust, that each of the representations and warranties made by TCW and the
Selling Shareholders (other than TCW Trust), and Trust and TCW Trust,
respectively, in this Agreement is true and correct in all material
respects on and as of the Closing Date on which such Closing occurs with
the same effect as though such representations and warranties had been
made or given on and as of such Closing Date, except for any
representation or warranty that expressly indicates that it is being made
as of a specific date, and that TCW and the Selling Shareholders (other
than TCW Trust), and Trust and TCW Trust, respectively, have performed and
complied with all of their respective obligations under this Agreement
which are to be performed or complied with on or prior to such Closing
Date.
11. Documents to Be Delivered by Purchaser at the Closings.
At each of the Closings, Purchaser shall deliver to TCW, on
behalf of the Selling Shareholders (other than TCW Trust), and Trust, on
behalf of TCW Trust, the following documents, in each case duly executed
or otherwise in proper form:
(a) A wire transfer in payment of the Purchase Price for
the Initial Shares, in the case of the Initial Closing and, the Secondary
Shares, in the case of the Second Closing, in each case, as required by
Section 2(b) hereof.
(b) A certificate signed by a duly authorized officer of
Purchaser that the representations and warranties made by Purchaser in
this Agreement are true and correct on and as of the Closing Date on which
such Closing occurs with the same effect as though such representations
and warranties had been made or given on and as of such Closing Date, and
that Purchaser has performed and complied with all of Purchaser's obliga-
tions under this Agreement which are to be performed or complied with on
or prior to such Closing Date.
12. Gross-Up.
(a) If the Second Closing has not occurred prior to the
expiration of the Blackout Period (and without limiting the rights and
remedies of the Selling Shareholders hereunder in the event of a breach by
Purchaser), the Selling Shareholders shall have the right from time to
time to sell any Shares then beneficially owned by the Selling
Shareholders pursuant to a Third Party Sale (as hereinafter defined). At
any time and from time to time, the Selling Shareholders shall have the
right to sell any of the shares of Common Stock set forth on Schedule I
under the heading "Gross-Up Shares" (as appropriately adjusted as
necessary to reflect a stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction, the
"Gross-Up Shares") then beneficially owned by the Selling Shareholders
pursuant to a Third Party Sale. For purposes of this Agreement, "Third
Party Sale" shall mean a sale in accordance with the terms of this
Agreement of any Shares or Gross-Up Shares to an unaffiliated third party
or parties, including, without limitation, to an underwriter in connection
with a public offering. Purchaser shall have no rights with respect to
any Shares from and after the date on which such Shares are sold pursuant
to a Third Party Sale in accordance with the terms of this Agreement.
(b) If any Third Party Sales are entered into prior to the date
that is six months after the last day of the Blackout Period (the "Gross-
Up Period"), Purchaser shall pay to the Selling Shareholders, within five
(5) business days after receipt of written demand and in accordance with
Section 2(b), the product of (i) the number of Shares and/or Gross-Up
Shares, as the case may be, subject to such Third Party Sale and (ii) the
excess, if any, of (x) the Purchase Price that would have been payable to
the Selling Shareholders by Purchaser pursuant to Section 2(a) had a
Closing occurred on the date of the consummation of such Third Party Sale
over (y) the greater of (1) 90% of the average closing price of a share of
Common Stock on the American Stock Exchange for the period of ten (10)
consecutive trading days (A) during which Purchaser and Purchaser's
Affiliates (as hereinafter defined) shall not have purchased or offered to
purchase any shares of Common Stock and (B) which most immediately
precedes the date on which such Third Party Sale occurs and (2) the
purchase price per Share and/or Gross-Up Share paid in connection with
such Third Party Sale. The Selling Shareholders shall deliver to
Purchaser all agreements regarding such Third Party Sale (or other
documents evidencing such Third Party Sale (e.g., a window ticket
evidencing the transfer of Shares or Gross-Up Shares pursuant to such
Third Party Sale)) and a calculation of the amount due hereunder, which
amount shall be paid within the time period set forth above. Purchaser
agrees that to the extent it has notice of any pending Third Party Sale,
it shall not, and shall cause each of the Purchaser's Affiliates not to,
purchase or offer to purchase any shares of Common Stock during the ten
(10) consecutive trading day period ending on the trading day which
immediately precedes such Third Party Sale.
(c) Notwithstanding the foregoing, if during the Gross-Up
Period and prior to the giving by the Selling Shareholders of notice of a
Third Party Sale pursuant to Section 12(b), Purchaser provides to the
Selling Shareholders a Replacement Offer (as hereinafter defined), then
Purchaser shall be released from its obligations to make any payments
pursuant to Section 12(b); provided, however, that Purchaser shall only be
released if the closing of the Replacement Offer either occurs on the
terms set forth in the Replacement Offer or fails to occur on such terms
as a result of the rejection of such offer by the Selling Shareholders.
For purposes hereof, "Replacement Offer" shall mean a legally binding
written offer to purchase, which shall be irrevocable for at least five
(5) business days after receipt by TCW, Trust and the Selling Shareholders
of such Replacement Offer to TCW, Trust and the Selling Shareholders, all,
but not less than all, of the Shares and Gross-Up Shares, to the extent
then beneficially owned by the Selling Shareholders, from a potential
purchaser that has the financial capacity to purchase such Shares and
Gross-Up Shares and which offer (i) is not subject to any conditions other
than the continued accuracy of TCW's, Trust's and the Selling
Shareholders' representations and warranties herein and clearance under
the HSR Act and (ii) provides for a purchase price for such Shares and
Gross-Up Shares at least equal to the Purchase Price that would have been
payable to the Selling Shareholders by Purchaser pursuant to Section 2(a)
had a Closing occurred on the forty-fifth day after notice of such
Replacement Offer is received by TCW, Trust and the Selling Shareholders.
13. Indemnification.
(a) Subject to the terms and conditions of this Section 13, TCW
hereby agrees to indemnify, defend and hold harmless Purchaser and its
directors, officers, employees and controlled and controlling persons
(hereinafter Purchaser's Affiliates") from and against all Claims (as
hereinafter defined) asserted against, resulting to, imposed upon, or
incurred by Purchaser or Purchaser's Affiliates, directly or indirectly,
by reason of, arising out of or resulting from (a) the inaccuracy or
breach of any representation or warranty of TCW contained in this
Agreement, or (b) the breach of any covenant of TCW contained in this
Agreement. As used in this Section 13, the term "Claim" shall mean:
(i) all debts, liabilities and obligations; (ii) all losses, damages
(including, without limitation, consequential damages), judgments, awards,
settlements, costs and expenses (including, without limitation, interest
(including prejudgment interest in any litigated matter) penalties, court
costs and attorneys' fees and expenses); and (iii) all demands, claims,
suits, actions, costs of investigation, causes of action, proceedings and
assessments, whether or not ultimately determined to be valid.
(b) Subject to the terms and conditions of this Section 13,
each Selling Shareholder hereby agrees to indemnify, defend and hold
harmless Purchaser and Purchaser's Affiliates from and against all Claims
asserted against, resulting to, imposed upon or incurred by Purchaser or
Purchaser's Affiliates, directly or indirectly, by reason of or resulting
from (a) the inaccuracy or breach of any representation or warranty of
such Selling Shareholder contained in this Agreement, or (b) the breach of
any covenant of such Selling Shareholder contained in this Agreement.
(c) Subject to the terms and conditions of this Section 13,
Trust hereby agrees to indemnify, defend and hold harmless Purchaser and
Purchaser's Affiliates from and against all Claims asserted against,
resulting to, imposed upon or incurred by Purchaser or Purchaser's
Affiliates, directly or indirectly, by reason of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Trust contained
in this Agreement, or (b) the breach of any covenant of Trust contained in
this Agreement.
(d) Subject to the terms and conditions of this Section 13,
Purchaser hereby agrees to indemnify, defend and hold harmless TCW, Trust
and the Selling Shareholders from and against all Claims asserted against,
resulting to, imposed upon or incurred by any of TCW, Trust and the
Selling Shareholders, directly or indirectly, by reason of or resulting
from (a) the inaccuracy or breach of any representation or warranty of
Purchaser contained in this Agreement, or (b) the breach of any covenant
of Purchaser contained in this Agreement.
(e) The obligations and liabilities of any party to indemnify
any other person under this Section 13 with respect to Claims relating to
third parties shall be subject to the following terms and conditions:
(i) The party or parties to be indemnified (whether one or
more, the "Indemnified Party") will give the party from whom
indemnification is sought (the "Indemnifying Party") prompt written notice
of any such Claim, and the Indemnifying Party will undertake the defense
thereof by representatives chosen by it. Failure to give such notice
shall not affect the Indemnifying Party's duty or obligations under this
Section 13, except to the extent the Indemnifying Party is prejudiced
thereby. So long as the Indemnifying Party is defending any such Claim
actively and in good faith, the Indemnified Party shall not settle such
Claim. The Indemnified Party shall make available to the Indemnifying
Party or its representatives all records and other materials required by
them and in the possession or under the control of the Indemnified Party,
for the use of the Indemnifying Party and its representatives in defending
any such Claim, and shall in other respects give reasonable cooperation in
such defense.
(ii) If the Indemnifying Party, within a reasonable time
after notice of any such Claim, fails to defend such Claim actively and in
good faith, the Indemnified Party will (upon further notice) have the
right to undertake the defense, compromise or settlement of such Claim or
consent to the entry of a judgment with respect to such Claim, on behalf
of and for the account and risk of the Indemnifying Party, and the
Indemnifying Party shall thereafter have no right to challenge the
Indemnified Party's defense, compromise, settlement or consent to judgment
therein.
(iii) Anything in this subsection (e) to the contrary
notwithstanding, (x) if there is a reasonable probability that a Claim may
materially and adversely affect the Indemnified Party other than as a
result of money damages or other money payments, the Indemnified Party
shall have the right to defend, compromise or settle such Claim, and (y)
the Indemnifying Party shall not, without the written consent of the
Indemnified Party, settle or compromise any Claim or consent to the entry
of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified party of a
release from all liability in respect of such Claim.
14. Termination. This Agreement may be terminated by either TCW,
Trust and the Selling Shareholders, on one hand, or the Purchaser, on the
other hand, if the Second Closing shall not have been consummated prior to
the expiration of the Blackout Period; provided, however, that the
obligations of each of the parties hereto under Sections 12 (subject to
the satisfaction of the conditions set forth in Sections 7(c)(i) and
(ii)), 13 (solely with respect to events that shall have occurred prior to
such termination) and 16 through 29 shall continue in full force and
effect notwithstanding any such termination, and that no party shall be
relieved from any liability of any kind or nature whatsoever resulting
from or arising out of a breach thereby of this Agreement occurring prior
to such termination.
15. Further Assurances. From time to time prior to, at and after
any Closing, each party hereto shall execute all such instruments and take
all such actions as any other party hereto shall reasonably request in
connection with carrying out and effectuating the transactions
contemplated by this Agreement.
16. Notices. Any notices required or allowed to be furnished
pursuant to the terms hereof shall be provided to TCW, Trust, the Selling
Shareholders and Purchaser at the addresses set forth with their
signatures below. Notices hereunder shall be in writing and may be hand
delivered, mailed, delivered by overnight courier service or, if facsimile
numbers are provided below, transmitted by facsimile. If mailed, such
notices shall be sent by certified mail, postage prepaid, return receipt
requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be
conclusively presumed to be the date of mailing for purposes of this
Section. In the case of notices given by hand delivery or overnight
courier, such notices shall be deemed given on the date of the actual
receipt. If transmitted by facsimile, such notices shall be deemed given
on the date of the actual receipt of a complete, legible facsimile
transmission, except that if a facsimile transmission is received after
business hours or on a weekend or holiday, then the notice shall be deemed
given on the next business day following the receipt of the facsimile
transmission.
17. Attorneys' Fees. In the event any party hereto finds it
necessary to bring any suit, action, or other proceeding at law or equity
to interpret, enforce or implement any of the terms, covenants or
conditions hereof or of any instrument executed pursuant to this
Agreement, or by reason of any breach or default hereunder or thereunder,
the party prevailing in any such action or proceeding, including any
bankruptcy proceeding and/or any appeal, shall be paid all costs and
reasonable attorneys' fees by the non-prevailing party, and in the event
any judgment is secured by such prevailing party, all such costs and
attorneys' fees shall be included in any such judgment, attorneys' fees to
be set by the court and not by the jury. No termination of this Agreement
upon any grounds or in any circumstances addressed herein or otherwise
will impair or limit a prevailing party's right to recover from the other
party its attorneys' fees and costs in accordance with the provisions of
this Section.
18. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Florida without
regard to the conflicts of law provisions thereof.
19. Assignment; Parties in Interest.
(a) Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or
encumbered without the prior written consent of the other parties.
Notwithstanding the foregoing, TCW, Trust and the Selling Shareholders
hereby consent to Purchaser assigning its rights hereunder to a corpora-
tion, partnership or limited liability company to be formed and in which
Purchaser owns a majority interest. Purchaser agrees to notify TCW, Trust
and the Selling Shareholders within five (5) days after said assignment or
any other assignment of Purchaser's rights under this Agreement to which
TCW, Trust and the Selling Shareholders may hereafter consent, and such
notification shall be accompanied by a copy of the instrument of
assignment. Notwithstanding the foregoing, TCW, Trust and the Selling
Shareholders shall have no obligation to execute and deliver closing
documents pursuant to this Agreement in favor of anyone other than the
original Purchaser identified herein, unless TCW, Trust and the Selling
Shareholders receive written notification at least (i) twenty-four (24)
hours prior to the Initial Closing, in the case of the Initial Closing,
and (ii) three (3) business days prior to the Second Closing, in the case
of the Second Closing. An assignment by Purchaser of its rights under
this Agreement shall not release Purchaser from its obligations and
liabilities under this Agreement, including, without limitation, its
obligation to close the purchase of Shares if its assignee fails to close
this transaction or if Purchaser's notice of an assignment is not duly
given to TCW, Trust and the Selling Shareholders within the time period
provided for herein.
(b) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and permitted assigns
of the parties hereto. Nothing contained herein shall be deemed to confer
upon any other person any right or remedy under or by reason of this
Agreement.
20. Expenses. Except as hereinafter set forth, each of the parties
hereto shall bear its own expenses and the expenses of its counsel and
other agents in connection with the transactions contemplated hereby.
Notwithstanding the foregoing, the Selling Shareholders shall pay any
sales, use, excise, transfer or other similar tax imposed with respect to
the transactions provided for in this Agreement (and any interest or
penalties related thereto).
21. Saturdays, Sundays and Legal Holidays. If the time for
performance of any of the terms, conditions and provisions hereof shall
fall on a Saturday, Sunday or legal holiday, then the time of such
performance shall be extended to the next business day thereafter.
22. Usage of Gender Specific Terms. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders,
the singular shall include the plural, and the plural shall include the
singular, wherever appropriate to the context.
23. Entire Agreement; Amendment. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated
herein, including the purchase and sale of the Shares, and all prior
understandings and agreements of the parties relating thereto are merged
herein. This Agreement may not be modified in any manner whatsoever
except by a written instrument signed by TCW and Purchaser.
24. Waiver. No delay in exercising any right or remedy of any of
the parties hereunder shall constitute a waiver thereof, and no waiver by
TCW, Trust, the Selling Shareholders or Purchaser of the breach of any
covenant of this Agreement shall be construed as a waiver of any preceding
or succeeding breach of the same or any other covenant or condition of
this Agreement.
25. Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
26. Severability. If any term, covenant or condition of this
Agreement is held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision hereof
and this Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
27. Public Announcements. The parties shall mutually agree on the
content and timing of any public disclosure in relation to the
transactions contemplated hereby, subject to applicable requirements of
law.
28. Limitations on Liability. The parties hereto acknowledge and
agree that in no event shall any of the partners, officers, directors,
shareholders, employees, agents or investment managers (collectively
"Representatives") of TCW, Trust or any Selling Shareholder, on one hand,
or of Purchaser on the other hand, have any obligation or liability to
Purchaser or TCW, Trust and the Selling Shareholders, respectively, for
any action taken or omitted by or on behalf of any Selling Shareholder or
Purchaser, respectively, hereunder or in connection herewith (such
obligation and liability being the sole responsibility of such Selling
Shareholder or Purchaser, respectively, hereunder). The parties hereto
further acknowledge and agree that all obligations and liabilities of each
Selling Shareholder, on one hand, and Purchaser, on the other hand, under
this Agreement or in connection herewith are enforceable solely against
such Selling Shareholder and its assets and not against the assets of TCW,
Trust, any other Selling Shareholder or any Representatives of TCW, Trust
or any Selling Shareholder, or Purchaser and its assets and not against
the assets of any Representative of Purchaser, respectively; provided,
however, that if such obligations or liabilities of the Selling
Shareholders are not specifically attributable to a particular Selling
Shareholder, then the obligations and liabilities of each Selling
Shareholder shall be several in the proportions of the aggregate Shares of
each Selling Shareholder set forth on Schedule I hereto and not joint and
several. The provisions of this Section 28 shall in no way limit or
otherwise affect TCW's responsibility or Trust's responsibility to
Purchaser for any breach by TCW on its own behalf, or Trust on its own
behalf, respectively, hereunder.
29. Time. Time is of the essence of this Agreement.
30. Execution. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any party may
execute this Agreement by transmitting a copy of its signature by
facsimile to the other parties. In such event the signing party shall
deliver an original of the signature page to each of the other parties
within one business day of signing, and failure to so deliver such
originals shall result in the facsimile copy of that party's signature
being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the date and year first above written.
SELLING
SHAREHOLDERS: TCW SPECIAL CREDITS, a California general partnership,
as general partner or investment manager of the
entities set forth on Schedule I attached hereto
(other than TCW Special Credits Trust)
By: TCW Asset Management Company, its
managing general partner
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Authorized Signatory
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx,
President
Facsimile No.: (000) 000-0000
TRUST COMPANY OF THE WEST, a California corporation, as trustee
of TCW Special Credits Trust, a California collective
investment trust
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Authorized Signatory
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx,
President
Facsimile No.: (000) 000-0000
TCW: TCW SPECIAL CREDITS, a California general partnership
By: TCW Asset Management Company, its managing
general partner
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Authorized Signatory
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx,
President
Facsimile No.: (000) 000-0000
TRUST: TRUST COMPANY OF THE WEST, a California
corporation
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Authorized Signatory
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Authorized Signatory
Address: c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx,
President
Facsimile No.: (000) 000-0000
PURCHASER: RESOURCE GROUP INTERNATIONAL, INC.,
a Washington corporation
By:/s/ Xxxxx X. Xxxxxxx
Print Name: Xxxxx X. Xxxxxxx
Its: Treasurer
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
SCHEDULE I
Xxxxx Equity, Inc.
Common Stock
Initial Secondary Gross-Up
Entity Percentage Shares Shares Shares Total
Weyerhaeuser
Company Master
Retirement
Trust 18.5 222,000 231,171 36,122 489,293
TCW Special
Credits Fund
III 53.6 643,200 669,770 104,658 1,417,628
The Common Fund
for Bond
Investments 3.9 46,800 48,733 7,615 103,148
TCW Special
Credits Trust 24.0 288,000 299,897 46,861 634,758
----- --------- --------- ------- ---------
100.0% 1,200,000 1,249,571 195,256 2,644,827
Wiring Instructions - TCW Special Credits
Sanwa Bank of California/Trust Operations
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
ABA Routing #000000000
Account: TCW Special Credits Escrow Account
A/C #400-3500
Ref: TCW/Xxxxx/RGI
