EXHIBIT 1.01(a)
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as
of March 27, 2007 between XXXXX XXXXX HOLDINGS, INC., a corporation organized
and existing under the laws of the State of Delaware (the "COMPANY"), and OHCP
DR CO-INVESTORS 2007, LLC, a Delaware limited liability company (the
"PURCHASER").
WHEREAS, Xxxxx Xxxxx, a New York general partnership and an indirect,
wholly-owned subsidiary of the Company, has entered into that certain Contract
of Sale, dated February 14, 2007, by and between Xxxxx Xxxxx and Gristede's
Food, Inc. (the "GRISTEDES AGREEMENT") pursuant to which it has agreed to
acquire certain leases covering premises located in the Borough of Manhattan,
New York, New York; and
WHEREAS, the Company desires to finance the acquisition of certain
store leases pursuant to the Gristedes Agreement, pay down the revolving credit
facility of the Company and certain of its subsidiaries and fund certain
discretionary capital expenditures (the "FINANCING"); and
WHEREAS, in order to effect the Financing, subject to the terms and
conditions set forth in this Agreement, the Company desires to issue and sell
to the Purchaser and the Purchaser desire to acquire from the Company (the
"TRANSACTION"): (i) up to Five Hundred Twenty-Five Thousand Three Hundred and
Thirty-Four (525,334) shares (the "SHARES") of the Company's Series A
Redeemable Preferred Stock, par value $0.01 per share (the "PREFERRED STOCK"),
and (ii) warrants (the "WARRANTS") exercisable initially to purchase an
aggregate of up to Three Hundred Eighty-Four Thousand One Hundred and
Seventy-Four (384,174) shares of the Company's common stock, par value $0.01
per share (the "COMMON STOCK"), to be issued upon the exercise of the Warrants
(including any additional shares of Common Stock issuable upon exercise of the
Warrants as a result of adjustments to the number of shares of Common Stock
issuable under the Warrants in accordance with the terms thereof, the "WARRANT
SHARES").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"AFFILIATE" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "CONTROL" (including,
with correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or
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cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGREEMENT" shall have the meaning set forth in the preamble to this
Purchase Agreement.
"APPLICABLE PURCHASE PRICE" means, with respect to any applicable
Closing, the Purchase Price to be paid at such Closing.
"BUSINESS DAY" means any day other than Saturday, Sunday and any day
which is a legal holiday or a day on which banking institutions in the State of
New York are authorized or required by law or other government actions to
close.
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designations,
Powers, Preferences and Rights of Preferred Stock of the Company annexed as
EXHIBIT A hereto.
"CLOSING" means the Initial Closing and, in the event there is more
than one closing, each Subsequent Closing unless otherwise specified.
"COMMON STOCK" shall have the meaning set forth in the recitals to this
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement.
"COMPANY SEC REPORTS" means the forms, reports and documents which are
required to be filed with the SEC pursuant to the federal securities laws and
the SEC rules and regulations thereunder.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXECUTION DATE" means the date of this Agreement first written above.
"GRISTEDES AGREEMENT" shall have the meaning set forth in the recitals
to this Agreement.
"HOLDER" means a holder of shares of Preferred Stock, as the context
requires, as reflected in the stock books of the Company.
"INITIAL CLOSING" shall have the meaning set forth in SECTION 2.2(A).
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"MATERIAL ADVERSE EFFECT" means any material adverse effect on the
business, assets, properties, liabilities, condition (financial or otherwise)
or results of operations of the Company and its subsidiaries, taken as a whole,
or on the ability of the Company to perform its obligations under this
Agreement or consummate the transactions contemplated by this Agreement, but
shall exclude any changes, effects, events, circumstances, occurrences or
states of facts: (i) in general economic, financial or market conditions; (ii)
that directly arise out of or are directly attributable to the acts of the
Purchaser and/or its Affiliates (other than as contemplated by this Agreement);
(iii) that generally affect the industries in which the Company operates; or
(iv) that arise out of or are attributable to the identity of the Purchaser.
"PER SHARE CONSIDERATION" shall have the meaning set forth in SECTION
2.1(B) hereof.
"PERSON" means an individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization, government (or an
agency or political subdivision thereof) or other entity of any kind.
"PREFERRED STOCK" shall have the meaning set forth in the recitals to
this Agreement.
"PURCHASE PRICE" shall have the meaning set forth in SECTION 2.1(B).
"PURCHASER" shall have the meaning set forth in the preamble to this
Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" shall have the meaning set forth in the recitals to this
Agreement.
"SUBSEQUENT CLOSING" shall have the meaning set forth in SECTION
2.2(B).
"TRANSACTION" shall have the meaning set forth in the recitals to this
Agreement.
"TRANSACTION DOCUMENTS" means this Agreement, the Certificate of
Designations, the Warrant Certificate and all exhibits hereto and all other
documents, instruments and writings required pursuant to this Agreement.
"WARRANT CERTIFICATE" means the Warrant to Purchase Shares of Common
Stock of the Company annexed as EXHIBIT B hereto.
"WARRANTS" shall have the meaning set forth in the recitals to this
Agreement.
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"WARRANT SHARES" shall have the meaning set forth in the recitals to
this Agreement.
"WARRANT STRIP" means a Warrant initially exercisable to purchase
0.7313 shares of Common Stock, and corresponding to one share of Preferred
Stock.
ARTICLE II
PURCHASE AND SALE OF CONVERTIBLE PREFERRED SHARES
2.1 PURCHASE AND SALE; PURCHASE PRICE.
(a) Subject to the terms and conditions set forth herein,
the Company shall issue and sell to the Purchaser, and the Purchaser shall
purchase from the Company, (i) up to Five Hundred Twenty-Five Thousand Three
Hundred and Thirty-Four (525,334) Shares of Preferred Stock and (ii) a
corresponding number of Warrant Strips. The Preferred Stock shall have the
respective rights, preferences and privileges as set forth in the Certificate
of Designations to be filed by the Company with the Secretary of State of the
State of Delaware on or before the Execution Date. The Warrants shall have the
respective rights, preferences and privileges as set forth in the Warrant
Certificate.
(b) The purchase price for each share of Preferred Stock
and Warrant Strip shall be Seventy-Five Dollars ($75.00) (the "PER SHARE
CONSIDERATION"), which shall be allocated between the Preferred Stock and the
Warrant Strip in the following percentages: Preferred Stock (77.92%) and
Warrant Strip (22.08%). The Per Share Consideration multiplied by the number of
shares of Preferred Stock to be purchased by the Purchaser is referred to as
the "PURCHASE PRICE".
2.2 CLOSING; DELIVERY.
(a) Subject to the terms and conditions set forth in this
Agreement being satisfied, the initial closing of the Transaction shall take
place at the offices of Xxxx, Weiss, Wharton, Rifkind & Xxxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000-0000, at 10:00 a.m. local time, and
shall take place simultaneously with the execution and delivery of this
Agreement (which time and place are designated as the "INITIAL CLOSING"). At
the Initial Closing, the Company shall issue and deliver to the Purchaser
173,334 shares of Preferred Stock and a Warrant initially exercisable for
126,759 shares of Common Stock, and the Purchaser shall deliver to the Company
the Applicable Purchase Price in an aggregate amount equal to Thirteen Million
and Fifty Dollars ($13,000,050.00).
(b) Subsequent to the Initial Closing, the Purchaser shall
at one or more subsequent Closings (each, a "SUBSEQUENT CLOSING") be required
to purchase from time to time additional shares of Preferred Stock and a
corresponding number of Warrant Strips; PROVIDED, HOWEVER, that in no event
shall the Purchaser be required to purchase more than 525,334 Shares of
Preferred Stock in the aggregate; PROVIDED, FURTHER, that in no event shall any
Subsequent Closing occur after July 31, 2007. The purchase price for any Shares
of Preferred Stock acquired subsequent to the Initial
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Closing shall be equal to the Applicable Purchase Price. At least five (5)
Business Days prior to each Subsequent Closing, the Company shall provide the
Purchaser with written notice certifying that a Seller's Closing Notice (as
defined in the Gristedes Agreement) has been received pursuant to the Gristedes
Agreement and, based on the number of locations to be transferred pursuant to
the Gristedes Agreement in connection with the delivery of such Seller's
Closing Notice, specifying the number of Shares of Preferred Stock and the
corresponding number of Warrant Strips to be issued and purchased at such
Subsequent Closing and the amount of the Applicable Purchase Price.
(c) At each Closing, including but not limited to the
Initial Closing, the Company shall deliver to the Purchaser a certificate
representing the Shares being purchased by the Purchaser at such Closing and
the Purchaser shall deliver to the Company the Applicable Purchase Price by
wire transfer of immediately available U.S. funds for the full amount of the
Applicable Purchase Price.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company hereby makes the following representations and warranties to the
Purchaser, all of which shall survive the Initial Closing:
(a) ORGANIZATION AND QUALIFICATION. The Company is a
corporation, duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted. The Company and each of its subsidiaries are duly
qualified to do business and are in good standing in each jurisdiction in which
the nature of the business conducted or property owned by the Company or such
subsidiary makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, would not, individually
or in the aggregate, have a Material Adverse Effect. Except as set forth in the
Company SEC Reports, the Company does not own, directly or indirectly, any
equity or debt securities of any corporation, partnership, or other entity.
(b) AUTHORIZATION, ENFORCEMENT. The Company has the
requisite corporate power and authority to enter into this Agreement and each
other Transaction Document and to consummate the transactions contemplated
hereby and thereby and to otherwise carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and each of the other
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby has been duly authorized by all
necessary action on the part of the Company. Each of this Agreement and the
other Transaction Documents has been or will be duly executed by the Company
and when delivered in accordance with the terms hereof or thereof will
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or
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similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
(c) CAPITALIZATION. SCHEDULE 3.1(C) sets forth a complete
and accurate list of the authorized, issued and outstanding Equity Interests of
the Company immediately prior to the Transaction. Except as set forth on
SCHEDULE 3.1(C), there are no shares of capital stock or other Equity Interests
of the Company issued, reserved for issuance or outstanding and no outstanding
or authorized options, warrants, convertible or exchangeable securities,
subscriptions, rights (including any preemptive rights), stock appreciation
rights, calls or commitments of any character whatsoever to which the Company
is a party or may be bound requiring the issuance, sale or redemption or
purchase of shares of any Equity Interests of the Company.
(d) ISSUANCE OF SECURITIES. The Shares and Warrants have
been duly and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued and delivered as provided hereunder against payment
in accordance with the terms hereof, shall be valid and binding obligations of
the Company enforceable in accordance with their respective terms. When issued
in accordance with the terms hereof, the Shares and Warrants will be duly
authorized, validly issued, fully paid and non-assessable, and, except pursuant
to the Preemptive Rights Agreement, not subject to any preemptive rights.
(e) NO CONFLICTS. The execution, delivery and performance
of this Agreement and the other Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and
thereby, do not and will not (i) conflict with or violate any provision of its
certificate of incorporation or bylaws (each as amended through the date
hereof) or (ii) be subject to obtaining any consents, conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture
or instrument to which the Company or any of its subsidiaries is a party, or
(iii) result in a violation of any material law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject, or by which any property or asset of
the Company is bound or affected. The business of the Company is not being
conducted in violation of any material law, ordinance or regulation of any
governmental authority.
(f) CONSENTS AND APPROVALS. The Company is not required to
obtain any material consent, waiver, authorization or order of, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement and each of the other
Transaction Documents, except for the filing of the Certificate of Designations
with respect to the Preferred Stock with the Secretary of State of the State of
Delaware, which filing shall be effected on or before the Execution Date.
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3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to the Company as follows:
(a) AUTHORITY. The Purchaser has the requisite power and
authority to enter into this Agreement and any Transaction Document to which it
is a party and to consummate the transactions contemplated hereby and thereby
and otherwise to carry out its obligations hereunder and thereunder. The
acquisition of the Shares and Warrants to be purchased by the Purchaser
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement and any Transaction Document to which it is a party
has been duly executed and delivered by the Purchaser and constitutes the valid
and legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to, or affecting generally the enforcement of, creditors rights and
remedies or by other general principles of equity.
(b) INVESTMENT INTENT. The Purchaser is acquiring the
Shares and Warrants to be purchased by it hereunder, and will acquire the
Shares and Warrants for its own account for investment purposes only and not
with a view to or for distributing or reselling such Shares or Warrants, or any
part thereof or interest therein, without prejudice, however, to the
Purchaser's right, subject to the provisions of this Agreement, at all times to
sell or otherwise dispose of all or any part of such Shares in compliance with
applicable federal and state securities laws.
(c) EXPERIENCE OF PURCHASER. The Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of an investment in the Shares and Warrants to be acquired
by it hereunder, and has so evaluated the merits and risks of such investment.
(d) ACCESS TO INFORMATION. The Purchaser acknowledges that
it has been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the Shares and Warrants offered
hereunder and the merits and risks of investing in such securities, (ii) access
to information about the Company and the Company's financial condition, results
of operations, business, properties, management and prospects sufficient to
enable it to evaluate its investment in the Shares and Warrants and (iii) the
opportunity to obtain such additional information which the Company possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment and to verify
the accuracy and completeness of the information that it has received about the
Company.
(e) RELIANCE. The Purchaser understands and acknowledges
that (i) the Shares and Warrants that are being offered and sold to it
hereunder are being offered and sold without registration under the Securities
Act in a private placement that is exempt from the registration provisions of
the Securities Act under SECTION 4(2) of the Securities Act and (ii) the
availability of such exemption depends in part on, and that the
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Company will rely upon the accuracy and truthfulness of, the foregoing
representations and the Purchaser hereby consents to such reliance.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1 MANNER OF OFFERING. The Shares and Warrants are being issued
pursuant to SECTION 4(2) of the Securities Act.
4.2 BLUE SKY LAWS. The Company shall cooperate with the Purchaser
in connection with the exemption from registration of the Shares and Warrants
under the securities or Blue Sky laws of such jurisdictions as the Purchaser
may request; PROVIDED, HOWEVER, that the Company and its subsidiaries shall not
be required in connection therewith to qualify as a foreign corporation where
they are not now so qualified. The Company agrees that it will execute all
necessary documents and pay all necessary state filing or notice fees to enable
the Company to sell the Shares and Warrants to the Purchaser.
4.3 INTEGRATION. The Company shall not and shall use its best
efforts to ensure that no Affiliate shall sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
SECTION 2 of the Securities Act) that would be integrated with the offer or
sale of the Shares in a manner that would require the registration under the
Securities Act of the sale of the Shares and Warrants to the Purchaser.
ARTICLE V
CONDITIONS TO THE PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of the Purchaser to purchase Shares and Warrants from
the Company at the Initial Closing and any Subsequent Closing are subject to
the fulfillment, on or before each such Closing, of each of the following
conditions, unless otherwise waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in SECTION 3.1 shall be true and correct in
all material respects as of such Closing.
5.2 PERFORMANCE. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
such Closing.
5.3 COMPLIANCE CERTIFICATE. An officer of the Company shall deliver
to the Purchaser at such Closing a certificate certifying that the conditions
specified in SECTIONS 5.1 and 5.2 have been fulfilled.
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5.4 NO MATERIAL ADVERSE CHANGE. Since December 30, 2006, there
shall not have occurred any event, development or circumstance that,
individually or in the aggregate, has had or could reasonably be expected to
result in a Material Adverse Effect.
5.5 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Shares and the Warrants pursuant to this Agreement shall be obtained and
effective as of such Closing.
ARTICLE VI
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company to sell Shares and Warrants to the
Purchaser at the Initial Closing and any Subsequent Closing are subject to the
fulfillment, on or before each such Closing, of each of the following
conditions, unless otherwise waived:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in SECTION 3.2 shall be true and correct
in all material respects as of such Closing.
6.2 PERFORMANCE. The Purchaser shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by them on or
before such Closing.
6.3 COMPLIANCE CERTIFICATE. An officer of the Purchaser shall
deliver to the Company at such Closing a certificate certifying that the
conditions specified in SECTIONS 6.1 and 6.2 have been fulfilled.
6.4 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Stock pursuant to this Agreement shall be obtained and effective as of
such Closing.
ARTICLE VII
COVENANTS
7.1 FURTHER ASSURANCES; COOPERATION. Each party hereto will,
before, at, and after the applicable Closing, execute and deliver such
instruments and take such other actions as the other party or parties, as the
case may be, may reasonably require in order to carry out the intent of this
Agreement. Without limiting the generality of the foregoing, at any time after
the Closing, at the request of the Company or the Purchaser, and without
further consideration, the Company will execute and deliver such instruments of
sale, transfer, conveyance, assignment and confirmation and take such action as
the Company or the Purchaser may reasonably deem necessary or desirable in
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order to more effectively transfer, convey and assign to the Purchaser, and to
confirm the Purchaser's title to, the Shares and the Warrants.
7.2 NO REPORTING OF ACCRUED AND UNPAID DIVIDENDS. The Company will
not treat for United States federal income tax purposes the amount of any
accrued and unpaid dividends that are added to the Liquidation Preference (as
such term is defined in the Certificate of Designations) as a distribution
under SECTION 301 or 305 of the United States Internal Revenue Code, as
amended, and will not take any position for United States federal income tax
purposes on any tax return or tax filing (including, without limitation,
Internal Revenue Service Form 1099) that is inconsistent with this SECTION 7.2.
ARTICLE VIII
TERMINATION
8.1 TERMINATION. Notwithstanding anything contained in this
Agreement to the contrary, the obligation to perform the transactions
contemplated by this Agreement may be terminated at any time after the Initial
Closing (a) by the mutual consent of the Purchaser and the Company; (b) by the
Purchaser in the event that any condition set forth in ARTICLE V shall not be
satisfied and shall not be reasonably capable of being satisfied within ten
(10) days following the Purchaser's written notice to the Company of such
failure; (c) by the Company in the event that any condition set forth in
ARTICLE VI shall not be satisfied and shall not be reasonably capable of being
satisfied within ten (10) days following the Company's written notice to the
Purchaser of such failure; (d) by the Purchaser if subsequent to the Initial
Closing and prior to any Subsequent Closing, there has occurred any event,
development or circumstance that, individually or in the aggregate, has had or
could reasonably be expected to result in a Material Adverse Effect; and (e) to
the extent all or any portion of the Purchase Price has not been paid to the
Company pursuant to ARTICLE II (and a corresponding number of Shares and
Warrants has not been delivered to the Purchaser) as of July 31, 2007, by the
Purchaser; PROVIDED, HOWEVER, that no party may terminate this Agreement
pursuant to clause (b) or (c) if the failure of any such condition to be
satisfied results from the breach by such party of this Agreement. If this
Agreement is terminated pursuant to this ARTICLE VIII, all obligations of the
parties under this Agreement to effect any Subsequent Closing shall be
terminated without liability or penalty on the part of any party or its
officers, directors or shareholders to any other party; PROVIDED, HOWEVER, that
no such termination shall relieve any party from liability for damages
resulting from any breach by such party of this Agreement or otherwise limit
any remedy available to a party or parties on account of any such breach.
ARTICLE IX
MISCELLANEOUS
9.1 FEES AND EXPENSES. Except as set forth in this Agreement, the
Company shall pay the fees and expenses of one set of advisers, counsel,
accountants and
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other experts for the Purchaser. The Company shall pay all stamp and other
taxes and duties levied in connection with the issuance of the Shares pursuant
hereto. The Purchaser shall be responsible for any taxes payable by the
Purchaser that may arise as a result of the investment hereunder or the
Transactions contemplated by this Agreement or any other Transaction Document.
The Company shall pay all costs, expenses, fees and all taxes incident to and
in connection with: (a) the issuance and delivery of the Shares and Warrants,
(b) the exemption from registration of the Shares for offer and sale to the
Purchaser under the securities or Blue Sky laws of the applicable
jurisdictions, (c) the preparation of certificates for the Shares and Warrants
(including, without limitation, printing and engraving thereof), and (d) all
fees and expenses of counsel and accountants of the Company.
9.2 ENTIRE AGREEMENT. This Agreement, together with all of the
Exhibits annexed hereto, and any other Transaction Document contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with
respect to such matters. This Agreement shall be deemed to have been drafted
and negotiated by both parties hereto and no presumptions as to interpretation,
construction or enforceability shall be made by or against either party in such
regard.
9.3 NOTICES. Wherever provision is made in this Agreement for the
giving of any notice, such notice shall be in writing and shall be delivered
personally to such party, or sent by facsimile transmission or overnight
courier, in each case to the addresses or facsimile telephone numbers set forth
as follows:
If to the Company:
Xxxxx Xxxxx Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to the Purchaser:
OHCP DR Co-Investors 2007, LLC
c/o Oak Hill Capital Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or to such other address, in any such case, as any party hereto shall have last
designated by notice to the other party. Notice shall be deemed to have been
given on the day that it is so delivered personally or sent by facsimile
transmission and the appropriate confirmation of successful transmission is
received. If sent by overnight courier, notice shall be deemed to have been
given the next Business Day after such communication is
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sent to the specified address. The Purchaser may change their address for
notices by giving written notice of such change to the Company.
9.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be
waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and the Holders, or, in the case of a waiver, by
the party against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
9.5 HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
9.6 SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement may not be assigned by either party, directly or indirectly, without
the prior written consent of the other. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. The assignment by a party of this Agreement or any rights
hereunder shall not affect the obligations of such party under this Agreement.
This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other person.
9.7 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with, the laws of the State of Delaware without
reference to conflict of law principles. Any action to enforce the terms of
this Agreement or any of its exhibits, or any other Transaction Document shall
be brought exclusively in the State and/or Federal courts situated in the
County and State of New York.
9.8 WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASER HEREBY
WAIVE TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY INSTRUMENT OR DOCUMENT
DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, PROTECTION,
INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR
DISPUTE HOWSOEVER ARISING, BETWEEN THE COMPANY AND THE PURCHASER.
9.9 SURVIVAL. The representations and warranties of the Company and
the Purchaser contained in ARTICLE III and the agreements and covenants of the
parties contained in ARTICLES V, VI and this ARTICLE IX shall survive the
Closing.
9.10 COUNTERPART SIGNATURES. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been
signed by each
13
party and delivered to the other party, it being understood that both parties
need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature page were an original thereof.
9.11 SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefore, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first indicated above.
COMPANY:
XXXXX XXXXX HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
and General Counsel
PURCHASER:
OHCP DR CO-INVESTORS 2007, LLC
By: OHCP Gen Par, L.P.,
its Managing Member
By: OHCP MGP, LLC,
its General Partner
By: /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Partner and General
Legal Counsel
SCHEDULE 3.1(C)
---------------
Equity Interests of
Xxxxx Xxxxx Holdings, Inc.
--------------------------
ISSUED AND
EQUITY INTEREST AUTHORIZED OUTSTANDING RESERVED
--------------- ---------- ----------- --------
Common Stock 3,050,000 2,594,977.22 0
Preferred Stock 50,000 0 0
Phantom Stock - - 23,738
Options - - 370,293
EXHIBIT A
---------
Certificate of Designations, Powers, Preferences and Rights of
Series a Redeemable Preferred Stock
-----------------------------------
[Attached]
EXHIBIT B
---------
Warrant to Purchase
Shares of Common Stock
----------------------
[Attached]
