SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered
into this 31st day of October, 2000, by and between XXXXXXX CONTROLS, INC., a
Wisconsin corporation ("Buyer"), on the one hand, and HEARTLAND ADVISORS, INC.,
a Wisconsin corporation ("HAI") on the other hand, on behalf of certain private
accounts (the "Advisory Clients") and on behalf of the HEARTLAND VALUE FUND (the
"Fund"), a series of HEARTLAND GROUP, INC., a Maryland corporation registered as
an open-end management investment company under the Investment Company Act of
1940 ("Heartland"). The Advisory Clients and the Fund sometimes are referred to
together herein as Sellers.
R E C I T A L S:
A. The Sellers together own the securities described in Appendix A attached
hereto (collectively, the "Securities"); and
B. Buyer desires to purchase and acquire the Securities from Sellers, and
HAI, acting on behalf of Sellers as an authorized agent thereof, desires to
sell, assign and transfer the Securities to Buyer, on the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Sale and Purchase of Securities. Buyer agrees to purchase the Securities
from Sellers, and HAI on behalf of Sellers agrees to sell, transfer, assign and
deliver the Securities, along with all rights appurtenant thereto, to Buyer on
the terms and conditions set forth herein, free and clear of all security
interests, adverse claims, liens, charges or encumbrances of any kind. The trade
date for the Securities shall be November 1, 2000, and the settlement date (the
"Closing") shall be November 7, 2000.
2. Purchase Price. In consideration for the Securities being purchased by
it hereunder, Buyer shall pay to HAI, as agent for Sellers, the purchase price
set forth in Appendix A attached hereto (the "Purchase Price"). The Purchase
Price shall be paid on the business day next preceding the Closing by wire
transfer of immediately available funds into the account set forth in Appendix B
attached hereto, and HAI shall make disbursements from that account to the
Advisory Clients and the Fund in the manner as contemplated by the respective
agreements between HAI, the Advisory Clients and the Fund.
3. Transfer Mechanics. At the Closing, HAI will, on behalf of Sellers,
transfer ownership of the Securities to Buyer through the book-entry system of
The Depository Trust Company and will take whatever other action is deemed by
Buyer to be necessary or
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appropriate to transfer ownership of the Securities in accordance with
instructions provided by Buyer. Buyer shall provide reasonable assistance and
cooperation in all such actions; provided, however, that Buyer shall not be
obligated to pay any transfer taxes or other comparable fees in connection with
this Agreement. The parties acknowledge that, as of the date hereof, certain of
the Advisory Clients have not consented to HAI acting as the initiating broker
for purposes of effecting the transfer of 105,000 shares of the Securities. If
HAI has not obtained such consents as of the Closing, then the settlement date
of such Securities shall be on such subsequent date mutually agreed to by the
parties (but in no event later than 10 days after the Closing), and the transfer
of such Securities shall be effected by another broker selected by Buyer or, if
by such subsequent date the requisite consents have been obtained, through HAI.
4. Representations and Warranties of HAI. As an inducement to Buyer to
enter into this Agreement, HAI hereby represents and warrants to Buyer (which
representations and warranties shall survive the Closing) as follows:
a. Authorization and Enforceability. HAI is a validly existing
Wisconsin corporation, is a registered investment adviser under the Investment
Advisers Act of 1940, and has all requisite power and authority under its
discretionary management agreements to enter into this Agreement on its own
behalf and on behalf of Sellers and to act as the agent of Sellers to effect the
transactions contemplated by this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by HAI and constitutes the valid and
legally binding obligation of HAI, enforceable in accordance with its terms,
except as the enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally and subject to general equity principles. No other or
further act or proceeding on behalf of HAI or any Seller is necessary to
authorize this Agreement or to effect the transactions contemplated hereby.
b. Title to Securities. Sellers are the lawful beneficial owners of
the Securities and HAI will cause such Securities to be transferred, together
with all appurtenant rights thereto, to Buyer at the Closing free and clear of
all adverse claims, security interests, liens, charges and encumbrances of any
kind and Buyer will, assuming payment of the Purchase Price as contemplated
herein, acquire the Securities free and clear of all adverse claims, security
interests, liens, charges and encumbrances.
c. Required Consents. Except for those which have previously been
obtained, filed or given (as the case may be) and remain in full force and
effect, or will be filed or given by Sellers or HAI on their behalf in a timely
manner when due following the date of this Agreement, no consent, approval or
authorization of or permit or license from or registration with or notice to any
governmental or public body or authority or any third party is required to be
obtained, filed or given by HAI or Sellers in connection with the transfer of
the Securities or the making or performance of this Agreement or any document or
instrument related hereto.
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d. No Violation. Neither the execution and delivery of this Agreement
nor the consummation by HAI on behalf of Sellers of the transactions
contemplated hereby (i) will violate any statute, law, ordinance, rule or
regulation or any order, injunction, judgment, plan or decree of any
governmental or public body or authority or (ii) will violate or conflict with,
or constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or will result in the termination of,
or accelerate the performance required by, or result in the creation of any
adverse claim, security interest, lien, charge or encumbrance of any kind upon
any of the assets of HAI or the Securities under, any term or provision of the
charter or bylaws of HAI or of any contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character to which HAI is a
party or by which HAI or any of its assets or properties may be bound or
affected, including, without limitation, HAI's discretionary management
agreements with Seller.
5. Representations and Warranties of Buyer. As an inducement to HAI to
enter into this Agreement on behalf of Sellers, Buyer hereby warrants and
represents to HAI and the Sellers (which representations and warranties shall
survive the Closing) as follows:
a. Authorization and Enforceability. Buyer is a validly existing
Wisconsin corporation and has all requisite power and authority to enter into
this Agreement. This Agreement has been duly and validly authorized, executed
and delivered by Buyer and constitutes the valid and legally binding obligation
of Buyer, enforceable in accordance with its terms, except as the enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally and
subject to general equity principles. No other or further corporate act or
proceeding on behalf of Buyer is necessary to authorize this Agreement or to
effect the transactions contemplated hereby.
b. Required Consents. Except for those which have previously been
obtained, filed or given (as the case may be) and remain in full force and
effect, or will be filed or given in a timely manner when due following the date
of this Agreement, no consent, approval or authorization of or permit or license
from or registration with or notice to any governmental or public body or
authority or any third party is required to be obtained, filed or given by Buyer
in connection with its purchase of the Securities or the making or performance
of this Agreement or any document or instrument related hereto.
c. No Violation. Neither the execution and delivery of this Agreement
nor the consummation by Buyer of the transactions contemplated hereby (i) will
violate any statute, law, ordinance, rule or regulation or any order,
injunction, judgment, plan or decree of any governmental or public body or
authority or (ii) will violate or conflict with, or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or will result in the termination of, or accelerate the performance
required by, or result in the creation of any adverse claim, security interest,
lien, charge or encumbrance of any kind upon any of the assets of Buyer under,
any term or provision of the charter or bylaws of Buyer or of any contract,
commitment,
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understanding, arrangement, agreement or restriction of any kind or character to
which Buyer is a party or by which Buyer or any of its assets or properties may
be bound or affected.
d. Accredited Investor Status. Buyer is an "accredited investor"
within the meaning of Rule 501(a) under the Securities Act of 1933, as amended,
and has had the full opportunity to independently review all such documentation
and public information and to make all such inquiries and conduct such due
diligence investigation as it has deemed appropriate for purposes of acquiring
the Securities hereunder. Buyer acknowledges that neither HAI nor any of the
Sellers has made or is making any representations or warranties regarding the
Securities (except as otherwise provided herein), and Buyer is not relying
(except as otherwise provided herein), on any statements made by, or information
provided by, HAI or any of the Sellers in connection with its acquisition of the
Securities.
e. Acquisition. Buyer is purchasing the Securities for its own account
for investment purposes and not with a view to resell or distribute any portion
of such Securities or any interest therein.
6. Closing. The Closing of the purchase and sale of the Securities
contemplated by this Agreement shall occur on the above-referenced settlement
date. The execution and delivery of this Agreement by the parties shall be
effected with the facsimile transmission of signature pages executed in
counterpart constituting valid execution and delivery.
7. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Buyer, HAI, Sellers and their respective successors and
assigns, or heirs and personal representatives, as applicable.
9. Applicable Law. This Agreement shall be governed by and construed under
the internal laws of the State of Wisconsin.
10. Further Assurances. The parties shall fully cooperate with each other
and shall execute and deliver, or cause to be executed and delivered, all such
other powers, instruments and documents, and will take all such other action, as
the parties may reasonably request from time to time in order to carry out the
provisions and purposes hereof.
11. Notices. Any notice or other communication required or desired to be
served, given or delivered hereunder shall be in writing and shall be deemed to
have been validly served, given or delivered upon actual receipt, upon two (2)
days after deposit in the United States mail, as registered or certified mail,
with proper postage prepaid, or upon
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successful facsimile transmission (with a copy to follow by mail) and addressed
to the party to be notified as follows:
(a) If to Buyer, at:
Xxxxxxx Controls, Inc.
Attention: Vice President, Secretary and General Counsel
0000 Xxxxx Xxxxx Xxx Xxxx
P.O. Box 591
Milwaukee, Wisconsin 53201-0591
Fax: (000) 000-0000
(b) If to HAI or Sellers , at:
Heartland Advisors, Inc.
Attention: General Counsel
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
or to such other address as either party may hereafter designate for itself by
written notice to the other party in the manner herein prescribed.
12. Section Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
13. Severability. The promises, representations, covenants, warranties and
clauses contained in this Agreement shall be deemed severable and if any portion
hereof shall be held invalid, illegal or unenforceable for any reason, the
remainder shall not thereby be invalidated but shall remain in full force and
effect.
14. Entire Agreement. This instrument embodies the entire agreement between
the parties hereto with respect to the specific transactions contemplated
herein, and the specific terms hereof shall not be deemed to be modified or
otherwise supplemented by any brokerage or other agreement between said parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXX CONTROLS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Title: Vice President
---------------------------
HEARTLAND ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: Sr. Vice President
---------------------------
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APPENDIX A
SECURITIES AND PURCHASE PRICE
Security Cusip No. Shares Price/Share
-------- --------- ------ -----------
Class A Common Stock of 257870105 1,542,100 $14.00
Xxxxxxxx Corporation
(NYSE Ticker Symbol "DON")
X-0
XXXXXXXX X
WIRE TRANSFER INSTRUCTIONS
Amount: $21,589,400*
For Further Credit to:
Heartland Advisors, Inc. is authorized to make all necessary
disbursements from this account to the Advisory Clients and the Fund
as the Securities are received from the various custodians.
*A portion of this amount may be withheld at Closing to the extent
contemplated by Section 3 of this Agreement.
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