Exhibit 10uu
August 6, 1999
Mr. Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter confirms the following:
1. Subject to the terms and provisions contained herein, on the Closing
Date (as hereinafter defined), you agree to sell, and Xxxxxxxx Xxxxx, Inc. (the
"Company") agrees to purchase 3,071,712 shares (the "Shares") of the Company's
common stock, par value $.02 per share. The purchase price for the Shares shall
be $9.50 per share.
2. The closing of the transactions contemplated hereby (the "Closing")
shall take place at 2:00 p.m. (New York City time) on Tuesday, August 10, 1999.
At the Closing, the following shall occur simultaneously: (a) you shall deliver
to the Company one or more certificates representing the Shares duly endorsed in
blank or accompanied by stock powers executed in blank (or, at the Company's
request, you shall arrange for the transfer of the Shares to a brokerage account
designated by the Company); and (b) the Company shall pay to you the amount of
$29,181,264.00. Payment of the amount referred to in the foregoing clause (b)
shall be made by wire transfer of immediately available funds to one or more of
your accounts at a bank or banks specified by you.
3. You represent and warrant to the Company that:
(a) You have the full legal right, power, authority and
capacity to execute, deliver and perform this letter
agreement and to sell, assign, transfer and deliver
the Shares as provided in this letter agreement, and
your delivery of the Shares to the Company hereunder
will convey to the Company good and marketable title
to the Shares, free and clear of any and all liens,
pledges, encumbrances, charges, agreements or claims
of any kind whatsoever;
(b) You have duly executed and delivered this letter
agreement and this letter agreement constitutes your
legal, valid and binding obligation, enforceable
against you in accordance with its terms;
(c) You are the sole beneficial owner of the Shares, free
and clear of any and all covenants, conditions,
restrictions, voting trust agreements, liens,
pledges, encumbrances, charges, security interests,
options, agreements or claims of any kind whatsoever
(the foregoing collectively hereinafter referred to
as the "Charges"); upon payment for the Shares as
contemplated hereby, the Company will acquire good
and marketable title to the Shares free of any
Charges; and the Shares represent all of the shares
of common stock of the Company which you beneficially
own, as hereinafter defined;
(d) Your execution, delivery and performance of this
letter agreement will not (i) result in a default or
breach of any agreement, contract or any other
instrument or obligation to which you or a party or
subject or (ii) violate any law, order, writ,
injunction, decree, statute, rule or regulation
applicable to you. No consent, approval,
authorization or filing with any persons or entities
on your part is required in connection with the
execution or delivery of this letter agreement or the
consummation of the transactions contemplated hereby;
(e) You are not a party to, subject to or bound by, any
agreement, judgement, order, writ, injunction or
decree of any court or governmental body or agency
which could prevent the performance of this letter
agreement; and
(f) No person or entity is entitled to any brokerage
commission or similar payment from you in connection
with the transactions contemplated hereby.
4. The Company represents and warrants to you that:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware;
(b) The Company has all requisite corporate power and
authority to execute, deliver and perform its
obligations under this letter agreement;
(c) The execution, delivery and performance of this
letter agreement by the Company and the consummation
of the transactions contemplated hereby have been
duly and validly authorized by all requisite
corporate action on the part of the Company;
(d) This letter agreement has been duly executed and
delivered by the Company and, when duly executed by
you, will constitute the legal, valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms;
(e) The execution, delivery and performance of this
letter agreement by the Company will not (i) violate,
conflict with or constitute a default under any term
or provisions of the certificate of incorporation or
bylaws of the Company, (ii) result in a default or
breach of any agreement, contract or any other
instrument or obligation to which the Company is a
party or subject, or (iii) violate any law, order,
writ, injunction, decree, statute, rule or regulation
applicable to the Company. No consent, approval,
authorization or filing with any persons or
entities on the part of the Company is required in
connection with the execution or delivery of this
letter agreement or the consummation of the
transactions contemplated hereby, except for consents
which have already been obtained; and
(f) The Company is not a party to, subject to or bound
by, any agreement, judgment, order, writ, injunction
or decree of any court or governmental body or agency
which could prevent the performance of this letter
agreement.
5. The obligation of the Company to consummate the purchase of the
Shares on the Closing Date is, at the option of the Company, subject to the
satisfaction of the following conditions:
(a) Each of your representations and warranties contained
in Section 3 hereof shall be true and correct as of
the Closing Date with the same force and effect as
though the same had been made on and as of the
Closing Date; and
(b) No action or proceeding shall have been instituted or
threatened or claim or demand made against you or the
Company before any court or other governmental body,
seeking to restrain or prohibit or to obtain
substantial damages with respect to the consummation
of the transactions contemplated hereby, which in the
reasonable opinion of the Company makes it
inadvisable to consummate such transactions.
6. Your obligation to consummate the sale, transfer and assignment to
the Company of the Shares on the Closing Date is, at your option, subject to the
satisfaction of the following conditions:
(a) Each of the representations and warranties of the
Company contained in Section 4 hereof shall be true
and correct as of the Closing Date with the same
force and effect as though the same had been made on
and as of the Closing Date; and
(b) No action or proceeding shall have been instituted or
threatened or claim or demand made against you or the
Company before any court or other governmental body,
seeking to restrain or prohibit or to obtain
substantial damages with respect to the consummation
of the transactions contemplated hereby, which in
your reasonable opinion makes it inadvisable to
consummate such transactions.
7. You shall be responsible for the payment of any brokerage commission
or similar payment which may be due any broker(s) representing you in connection
with the transactions contemplated by this letter agreement and you shall
indemnify and hold the Company harmless from and against any and all liability
for any such commissions or payments.
8. You covenant that for a period of ten years from and after the date
hereof, neither you, any of your affiliates (as defined herein), nor any group
(as defined herein) of which you or any of your affiliates becomes a member,
shall (a) individually or collectively acquire, or offer, propose or agree to
acquire beneficial ownership of any shares of the Company's common stock or (b)
propose or publicly announce or otherwise disclose an intent to propose, or
enter into or agree to enter into, singly or with any other person or directly
or indirectly, (i) any form of business combination, acquisition, or other
transaction relating to the Company or any affiliate thereof, or (ii) any form
of restructuring, recapitalization or similar transaction with respect to the
Company or any such affiliate, (c) make, or in any way participate in, any
solicitation of proxies with respect to any shares of the Company's common stock
(including by the execution of action by written consent), become a participant
in any election contest with respect to the Company, seek to influence any
person with respect to any shares of the Company's common stock or demand a copy
of the Company's list of its stockholders or other books and records, or (d)
participate in or encourage the formation of any partnership, syndicate, or
other group which seeks to effect control of the Company or to circumvent any
provision of this Section 8. The term "affiliate" as used in this Section 8 and
in Section 9 shall have the meaning ascribed to it in Rule 405 under the
Securities Act of 1933, as amended. The term "group" as used in this Section 8
shall have the meaning ascribed to it in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"). The terms "beneficial
ownership" or "beneficially own" as used in this Section 8 and in Section 3
shall have the meaning ascribed to such terms in Rule 13d-3 under the 1934 Act.
9. In consideration of the payment to be made by the Company pursuant
to Section 2 hereof and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, you, for yourself and your
heirs, executors, successors, assigns and legal representatives (collectively,
the "Releasing Parties"), covenant not to xxx and release, remise and forever
discharge the Company, its subsidiaries, divisions and affiliates, and their
respective officers, directors, employees, agents and representatives
(collectively, the "Released Parties"), of and from all claims, demands, suits,
actions, causes of action, losses, damages, expenses or liabilities of any kind
and nature whatsoever, known and unknown, both in law and in equity
(collectively, the "Claims"), which the Releasing Parties ever had, now have or
can, shall or may here against the Released Parties for, upon or by reason of
any matter, cause or thing from the beginning of the world to and through the
Closing Date including, without limitation, Claims relating in any way to your
ownership of the Shares, your status as a shareholder of or investor in the
Company, the operation and conduct of the Company's business and affairs and the
Company's financial performance. Notwithstanding anything in the foregoing to
the contrary, the foregoing release shall not apply to the executory provisions
of this letter agreement.
10.
(a) You agree to indemnify and hold the Company harmless
from and against any and all losses, claims,
liabilities, obligations, damages, assessments,
judgments, costs, deficiencies and expenses,
including, without limitation, any reasonable legal
or other expenses for investigating, preparing or
defending any action, suit, or proceeding or any
threatened action, suit or proceeding (collectively,
the "Losses"), arising from, relating to or in
connection with any breach of a representation and
warranty or non-fulfillment of any agreement or
covenant on your part under the terms of this letter
agreement.
(b) The Company agrees to indemnify and hold you harmless
from and against any all Losses arising from,
relating to or in connection with any breach of a
representation and warranty or non-fulfillment of any
agreement or covenant on the part of the Company
under the terms of this letter agreement.
(c) If any legal proceedings shall be instituted or
any claim or demand shall be asserted by any person
in respect of which payment may be sought by one
party hereto from another party under the provisions
of this Section 10, the party seeking indemnification
shall promptly cause written notice of the assertion
of any claim of which it has knowledge which is
covered by this indemnity to be forwarded to the
other party. Such other party shall have the right,
at its option and at its own expense (i) to be
represented by counsel of its choice who must be
reasonably satisfactory to the party seeking
indemnification and (ii) to defend against,
negotiate, settle or otherwise deal with any
proceeding, claim or demand which relates to any Loss
indemnified against hereunder; provided, however,
that no settlement shall be made without the prior
written consent of the party seeking indemnification,
which consent shall not be unreasonably withheld.
Notwithstanding the preceding sentence, the party
seeking indemnification may participate in any such
proceeding with counsel of its choice and at its
expense; provided, however, that if defendants in any
such action include both the party seeking
indemnification and the indemnifying party, and the
party seeking indemnification shall have been advised
by its counsel that there may be bona fide legal
defenses available to the party seeking
indemnification which are different from or in
addition to those available to the indemnifying
party, the party seeking indemnification shall have
the right to employ its own counsel in such action,
and in such event, the reasonable fees and expenses
of such counsel shall be borne by the indemnifying
party. To the extent the indemnifying party elects
not to defend such proceeding, claim, or demand and
the party seeking indemnification defends against,
settles or otherwise deals with any such proceeding,
claim or demand, which settlement may be made without
the consent of the indemnifying party, the party
seeking indemnification will act reasonably in
accordance with its good faith business judgment. The
parties hereto agree to cooperate fully with each
other in connection with the defense, negotiation or
settlement of any such legal proceeding, claim or
demand. After any final judgment or award shall have
been rendered by a court, arbitration board or
administrative agency of competent jurisdiction and
the expiration of the time in which to appeal
therefrom, or a settlement shall have been
consummated, or the party seeking indemnification
and the indemnifying party shall have arrived at a
mutually binding agreement with respect to each
separate matter indemnified by the indemnifying
party hereunder, the party seeking indemnification
shall forward to the indemnifying party notice of
any sums due and owing by it or him, as the case may
be, with respect to such matter and such indemnifying
party shall be obligated for all of the sums so owing
to the other party within ten days after the date of
such notice.
(d) The representations, warranties, covenants and
agreements of the parties contained in this letter
agreement shall survive the execution and delivery of
this letter agreement, notwithstanding any
investigation made by or on behalf of the parties
hereto.
11. This letter agreement (a) embodies the entire agreement and
understanding of the parties hereto and supersedes any prior agreement or
understanding between the parties; (b) shall be governed by the laws of the
State of New York without reference to principles of conflicts of law; (c) shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that this letter and all
rights and obligations hereunder may not be assigned or transferred, without the
prior written consent of the other party hereto; (d) may be amended, modified or
supplemented only by written agreement of the parties hereto; and (e) may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Kindly confirm that the foregoing represents our mutual agreement by
signing, dating and returning to the undersigned the enclosed copy of this
letter.
Very truly yours,
XXXXXXXX XXXXX, INC.
By:/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name:Xxxxxxxx X. Xxxxxxxx
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Title:Executive Vice President
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& Chief Financial Officer
ACCEPTED AND AGREED TO:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
August 6th 1999
