Exhibit 10(l)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated December 21, 1995, by and
among Xxxxxxx Transportation, Inc., a Delaware corporation (the
"Seller") and an indirect wholly-owned subsidiary of Xxxxxxx Inc.,
a corporation continued under the laws of Canada ("Guarantor"),
Guarantor, and Western Resources, Inc., a Kansas corporation (the
"Purchaser"). Certain capitalized terms used herein are defined in
Section 9.7 hereof.
W I T N E S S E T H :
WHEREAS, the Seller owns, in the aggregate, 30,800,000
common shares, par value of $.10 per share (the "Common Shares"),
of ADT Limited, a corporation organized under the laws of Bermuda
(the "Company"); and
WHEREAS, the Seller desires to sell to the Purchaser, and
the Purchaser desires to purchase from the Seller, 15,400,000
Common Shares (the "Shares") upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
I. SALE OF SHARES; PURCHASE PRICE
1.1 Sale of Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined
in Section 6.1), the Seller shall sell and deliver to the Purchaser
the Shares, and the Purchaser shall purchase from the Seller the
Shares.
1.2 Purchase Price; Payment.
(a) The purchase price for the Shares shall be
$215,600,000 in cash (the "Purchase Price").
(b) On the Closing Date (as defined in Section
6.1), the Purchaser shall pay to the Seller the Purchase Price by
wire transfer of immediately available funds to such bank account
as the Seller shall specify in writing to Purchaser not later than
three Business Days prior to the Closing Date, against evidence
that the Purchaser has been entered in the register of members of
the Company and issuance to the Purchaser by the transfer agent of
the Company of a certificate or certificates representing the
Shares and bearing a customary legend reflecting that the Shares
have not been registered under the Securities Act, such certificate
and legend in form and substance satisfactory to the Purchaser and
in such name or names designated by the Purchaser.
II. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE GUARANTOR
The Seller and the Guarantor hereby represent and warrant
to the Purchaser as follows:
2.1 Organization and Good Standing. Each of the Seller
and the Guarantor are duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation.
2.2 Authority Relative to Agreement. Each of the Seller
and the Guarantor have all requisite power and authority to
execute, deliver and perform their respective obligations under
this Agreement and the Equity Agreement. The execution and
delivery by the Seller and the Guarantor of this Agreement and the
Equity Agreement, and the consummation by the Seller and the
Guarantor of the transactions contemplated hereby and thereby
(i) have been authorized by all necessary action on the part of the
Seller and the Guarantor, (ii) do not violate any provision of law
or regulation applicable to the Seller or the Guarantor and
(iii) do not conflict with or result in a breach of any provision
of, or constitute a default under, the certificate of incorporation
or bylaws of the Seller or the Guarantor, or any agreement, order,
judgment or decree binding upon the Seller or the Guarantor.
2.3 Consents and Approvals. No filing or registration
with, notification to, or authorization, consent or approval of,
any governmental authority is required by Seller or Guarantor in
connection with the execution and delivery of this Agreement and
the Equity Agreement, or the consummation of the transactions
contemplated hereby and thereby.
2.4 Effect of Agreement. This Agreement and the Equity
Agreement have been duly executed and delivered by the Seller and
the Guarantor and (assuming the due authorization, execution and
delivery by the Purchaser) constitute legal, valid and binding
obligations of the Seller and the Guarantor enforceable against the
Seller and the Guarantor in accordance with their respective terms.
2.5 The Shares.
(a) The Seller owns all right, title and interest
in and to the Shares, free and clear of any liens, claims, security
interests or encumbrances whatsoever (including, without
limitation, any voting trust or similar arrangement affecting the
right to vote the Shares).
(b) The Seller will transfer and deliver to the
Purchaser at the Closing valid title to the Shares, free and clear
of any liens, claims, security interests or encumbrances whatsoever
(including, without limitation, any voting trust or similar
arrangement affecting the right to vote the Shares).
2.6 Brokers, Finders, etc. Neither the Seller nor the
Guarantor is subject to the valid claim of any broker, finder,
consultant or other intermediary in connection with the
transactions contemplated hereby who would have a claim for a fee
or commission from the Purchaser in connection with such
transactions.
2.7 Absence of Certain Changes. Except as disclosed in
any report or statement filed as of the date hereof with respect to
the Company pursuant to the Exchange Act, neither the Seller nor
the Guarantor has any knowledge that the Company has suffered any
event or occurrence which would have any actual or potential
material adverse effect on the business, properties, operations,
assets, condition (financial or otherwise), results of operations
or prospects of the Company (a "Company Material Adverse Effect").
2.8 Public Utility Holding Company Act. None of the
Seller, the Guarantor or, to the best of the Seller's knowledge,
the Company is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the
Seller as follows:
3.1 Organization and Good Standing. The Purchaser is
duly organized, validly existing and in good standing under the
laws of the State of Kansas.
3.2 Authority Relative to Agreement. The Purchaser has
all requisite power and authority to execute, deliver and perform
its obligations under this Agreement and the Equity Agreement. The
execution and delivery by the Purchaser of this Agreement and the
Equity Agreement, and the consummation by the Purchaser of the
transactions contemplated hereby and thereby (including, subject to
the consent of the KCC, the issuance of the Note) (i) have been
authorized by all necessary action on the part of the Purchaser,
(ii) do not violate any provision of law or regulation applicable
to the Purchaser and (iii) do not conflict with or result in a
breach of any provision of, or constitute a default under, the
certificate of incorporation or bylaws of the Purchaser, or any
agreement, order, judgment or decree binding upon the Purchaser.
3.3 Consents and Approvals. No filing or registration
with, notification to, or authorization, consent or approval of,
any governmental entity is required by Purchaser in connection with
the execution and delivery of this Agreement and the Equity
Agreement, or the consummation of the transactions contemplated
hereby or thereby, except (i) in connection with the applicable
requirements of the HSR Act, (ii) in connection with filings under
the Exchange Act and (iii) in connection with obtaining the
approval of the KCC with respect to the issuance of the Note.
3.4 Effect of Agreement. This Agreement and the Equity
Agreement have been duly executed and delivered by the Purchaser
and (assuming the due authorization, execution and delivery by the
Seller and the Guarantor) constitute legal, valid and binding
obligations of the Purchaser enforceable against the Purchaser in
accordance with their respective terms.
3.5 Brokers, Finders, etc. The Purchaser is not subject
to the valid claim of any broker, finder, consultant or other
intermediary in connection with the transactions contemplated
hereby who would have a claim for a fee or commission from the
Seller or the Guarantor in connection with such transactions.
3.6 Securities Act. The Purchaser is acquiring the
Shares with no intention of distributing or reselling the Shares or
any part of the Shares in any transaction which would be in
violation of the Securities Act.
IV. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser to effect the purchase
of the Shares from the Seller pursuant to this Agreement shall be
subject to the satisfaction, or waiver by the Purchaser on the
Closing Date, of the following conditions:
4.1 Accuracy of Representations and Warranties;
Covenants. Each of the representations and warranties of the
Seller and the Guarantor contained herein shall be true and correct
in all material respects when made and on and 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 the Seller and the
Guarantor shall have performed and complied in all material
respects with the covenants and provisions contained herein
required to be performed or complied with at or prior to the
Closing.
4.2 No Proceeding or Litigation. No party hereto shall
be legally enjoined by a writ, order, decree or injunction from a
court of competent jurisdiction or governmental entity from
consummating the transactions contemplated by this Agreement or the
Equity Agreement or restricting the Purchaser's exercise of full
rights to own the Shares, and no proceeding shall have been
commenced or threatened seeking to enjoin the consummation of the
transactions contemplated hereby or by the Equity Agreement or
restrict the Purchaser's full rights to own the Shares.
4.3 Certificate. The Purchaser shall have received a
certificate from each of the Seller and the Guarantor to the effect
set forth in Section 4.1 hereof, dated the Closing Date, duly
signed by a duly authorized officer of the Seller or the Guarantor.
4.4 Consents and Approvals. All necessary consents and
approvals of any United States or any other governmental authority
or any other third party required for the consummation of the
transactions contemplated by this Agreement and the Equity
Agreement (other than the KCC with respect to the issuance of the
Note under the Equity Agreement) shall have been obtained and all
applicable waiting periods in respect of the transactions
contemplated by this Agreement under the HSR Act shall have expired
or been terminated.
4.5 Equity Agreement. The Equity Agreement shall be in
full force and effect.
V. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller to effect the sale of the
Shares pursuant to this Agreement shall, at the option of the
Seller, be subject to the satisfaction, on the Closing Date, of the
following conditions:
5.1 Accuracy of Representations and Warranties;
Covenants. Each of the representations and warranties of the
Purchaser contained herein shall be true and correct in all
material respects when made and on and 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 the Purchaser shall have complied in
all material respects with the covenants and provisions contained
herein required to be performed or complied with at or prior to the
Closing.
5.2 No Proceeding or Litigation. No party hereto shall
be enjoined by a writ, order, decree or injunction from a court of
competent jurisdiction or governmental entity from consummating the
transactions contemplated by this Agreement or the Equity
Agreement, and no proceeding shall have been commenced seeking to
enjoin the consummation of the transactions contemplated hereby or
by the Equity Agreement.
5.3 Officer's Certificate. The Seller shall have
received a certificate from the Purchaser to the effect set forth
in Section 5.1 hereof, dated the Closing Date, signed by a duly
authorized officer of the Purchaser.
5.4 Consents and Approvals. All necessary consents and
approvals of any United States or any other governmental authority
or any other third party required for the consummation of the
transactions contemplated by this Agreement and the Equity
Agreement (other than the KCC with respect to the issuance of the
Note pursuant to the Equity Agreement) shall have been obtained
and all applicable waiting periods in respect of the transactions
contemplated by this Agreement under the HSR Act shall have expired
or been terminated.
5.5 Equity Agreement. The Equity Agreement shall be in
full force and effect.
VI. CLOSING
6.1 Closing Date. The closing with respect to the
transactions provided for in this Agreement (the "Closing") shall
take place at 10:00 a.m., local time, at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the
fifth Business Day following the satisfaction or waiver of the
conditions referred to in Articles IV and V hereof (or at such
other time or location as the Purchaser and the Seller may agree)
(such date being herein referred to as the "Closing Date").
6.2 Seller Closing Documents. At the Closing, the
Seller shall deliver or cause to be delivered to the Purchaser the
following:
(a) a certificate or certificates representing the
Shares, as provided in Section 1.2(b) hereof;
(b) the officer's certificates of the Seller and
the Guarantor referred to in Section 4.3 hereof; and
(c) an opinion of general counsel to the Seller and
the Guarantor, containing customary qualifications reasonably
acceptable to the Purchaser, to the effect of Sections 2.1, 2.2,
2.3, 2.4, 2.5 and 2.8 hereof.
6.3 Purchaser Closing Documents. At the Closing, the
Purchaser shall deliver or cause to be delivered to the Seller the
following:
(a) the Purchase Price, as provided in Section
1.2(b) hereof;
(b) the officer's certificate of the Purchaser
referred to in Section 5.3 hereof; and
(c) an opinion of counsel to the Purchaser, which
may be general counsel of Purchaser, containing customary
qualifications reasonably acceptable to the Seller, to the effect
of Sections 3.1, 3.2, 3.3 and 3.4 hereof.
6.4 Proceedings. All proceedings that shall be taken
and all documents that shall be executed and delivered by the
parties hereto on the Closing Date shall be deemed to have been
taken and executed simultaneously and no proceedings shall be
deemed taken nor any documents executed or delivered until all have
been taken, executed and delivered. By a party's proceeding with
the Closing, the conditions to such party's obligations set forth
in Article IV or V hereof, as the case may be, shall be deemed
satisfied or waived.
VII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
7.1 General Survival. The representations and
warranties contained in this Agreement shall survive the Closing.
7.2 Indemnification. The Seller and the Guarantor (on
the one hand) or the Purchaser (on the other hand) (the
"Indemnifying Party"), shall indemnify respectively the Purchaser
(on the one hand) or the Seller and the Guarantor (on the other
hand), respectively (the "Indemnified Party"), as the case may be,
and their respective directors, officers, agents, and affiliates,
against and in respect of any liabilities, damages, losses, costs
and expenses (including reasonable expenses of investigation and
litigation and reasonable attorneys', accountants' and other
professionals' fees and costs incurred in the investigation or
defense thereof or the enforcement of rights hereunder) incurred by
the Indemnified Party ("Losses") as a result or arising out of any
breach of the Indemnifying Party's representations and warranties
or covenants and agreements set forth in this Agreement or the
Equity Agreement.
7.3 Method of Asserting Claims, etc. All claims for
indemnification by any Indemnified Party hereunder shall be
asserted and resolved as set forth in this Section 7.3.
(a) The Indemnified Party shall give prompt written
notice (a "Claim Notice") to the Indemnifying Party of any
assertion of liability which might give rise to a claim for
indemnification based on the provisions of Section 7.2 hereof,
which notice shall state the nature and basis of the assertion and
the estimated amount thereof to the extent then feasible (which
amount shall not be conclusive of the final amount), provided,
however, that no delay on the part of the Indemnified Party in
giving any such Claim Notice shall relieve the Indemnifying Party
of any indemnification obligation hereunder.
(b) If any claim is made or any action, suit or
proceeding is brought by a third party (a "Third Party Claim")
against an Indemnified Party with respect to which the Indemnifying
Party may have liability under the provisions of Section 7.2
hereof, the Indemnifying Party shall have the right to defend such
Third Party Claim provided that it gives written notice to the
Indemnified Party within 30 days after its receipt of the related
Claim Notice that such Third Party Claim is covered by the
provisions of Section 7.2 hereof.
(c) Notwithstanding the provision of the previous
subsection, until the Indemnifying Party shall have assumed the
defense of any such Third Party Claim, the Indemnified Party shall
retain the right to handle the defense thereof. Furthermore, if
(i) the Indemnified Party shall have reasonably concluded that
there are likely to be defenses available to the Indemnified Party
that are different from or in addition to those available to the
Indemnifying Party; or (ii) the Third Party Claim involves other
than money damages and seeks injunctive or other equitable relief,
the Indemnifying Party shall not be entitled to assume the defense
of such third Party Claim and the defense of the Third Party Claim
shall be handled by the Indemnified Party. If under any
circumstances the defense of the Third Party Claim is handled by
the Indemnified Party, the Indemnifying Party shall pay all legal
and other expenses reasonably incurred by the Indemnified Party in
conducting such defense in accordance with Section 7.2 hereof.
(d) In any Third Party Claim initiated by a third
party and defended by the Indemnifying Party (i) the Indemnified
Party shall have the right to be represented by advisory counsel
and accountants, at its own expense, (ii) the Indemnifying Party
shall keep the Indemnified Party fully informed as to the status of
such Third Party Claim, at all stages thereof, whether or not the
Indemnified Party is represented by its own counsel, (iii) the
Indemnifying Party and the Indemnified Party shall make available
to the other, and its counsel, accountants and other
representatives, all of such party's books and records relating to
such Third Party Claim and (iv) the parties shall render to each
other such assistance as may be reasonably required in order to
ensure the proper and adequate defense of such Third Party Claim.
(e) In any Third Party Claim initiated by a third
party and defended by the Indemnifying Party, the Indemnifying
Party shall not have the right to settle or compromise such Third
Party Claim without the prior written consent of the Indemnified
Party.
VIII. COVENANTS
8.1 Best Efforts. Each party hereto shall use its best
efforts to cause the satisfaction of the conditions precedent set
forth in Articles IV and V hereof and otherwise to cause the
consummation of the transactions contemplated hereby in accordance
with the terms hereof.
8.2 HSR Act Compliance. The Purchaser agrees that it
shall, as soon as reasonably practicable, make or cause to be made
all required filings under the HSR Act in order to commence the
running of the waiting period thereunder, to continue the running
of said waiting period (including any extensions) and prevent or
minimize any tolling thereof.
8.3 Consents and Approvals. Each party hereto agrees to
use its commercially reasonable best efforts to obtain any
governmental or third party consents or approvals necessary to
consummate the transactions contemplated by this Agreement and the
Equity Agreement.
8.4 Publicity. Except as required by law, each party
hereto agrees not to make any press release or public statement
about the transactions contemplated hereby without the prior
approval of the other party hereto with respect to the form and
content of such disclosure.
8.5 No Negotiations. Neither the Seller nor any
affiliate of the Seller (including the Guarantor), nor any of their
officers, directors, employees, agents or representatives, shall,
directly or indirectly, initiate or participate in discussions
with, or otherwise solicit from or communicate with, any Person
regarding any proposals or offers relating directly or indirectly
to the sale of any or all of the Common Shares owned by the Seller
or that could have the effect of frustrating the consummation of
the transactions contemplated hereby or by the Equity Agreement,
unless and until this Agreement and the Equity Agreement are
terminated in accordance with their terms. The Seller or the
Guarantor will promptly inform the Purchaser in writing of any
inquiries, proposals or offers from any Person with respect to any
of the foregoing matters, including the identity of any such Person
and a copy of any written proposal or communication.
IX. GUARANTEE
9.1 Guarantee. The Guarantor hereby irrevocably and
unconditionally guarantees the prompt and punctual performance by
Seller of each of its obligations under this Agreement and the
Equity Agreement.
X. MISCELLANEOUS
10.1 Waivers and Amendments.
(a) This Agreement may not be amended, modified or
supplemented except by a written instrument executed by the parties
hereto. The provisions of this Agreement may be waived only by an
instrument in writing executed by the party granting the waiver.
The waiver by any party hereto of compliance with any provision of
this Agreement shall not operate or be construed as a further or
continuing waiver of such noncompliance or as a waiver of any other
or subsequent noncompliance.
(b) No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
10.2 Fees and Expenses. Each party hereto shall be
responsible for its costs and expenses, including all fees and
expenses of attorneys, investment bankers, lenders, financial
advisors and accountants, in connection with the negotiation,
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, whether or not such
transactions are consummated.
10.3 Notices. Any and all notices, requests, consents
or any other communication provided for herein shall be made by
hand delivery, first-class mail (registered or certified, return
receipt requested), telecopier or overnight courier and, pending
the designation of another address, addressed as follows:
If to the Seller or the Guarantor at:
0000 Xxxxx Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx
Xxxxxxx, Xxxxxx 17R 3Y8
Fax No. - (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to the Purchaser at:
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Fax No. - (000) 000-0000
Attn: Xxxxx Xxxxxx
with a copy to:
Xxxx X. Xxxxxxxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx
Fax No. - (000) 000-0000
Except as otherwise provided in this Agreement, each such notice
shall be deemed given at the time delivered.
10.4 Entire Agreement. This Agreement and the Equity
Agreement set forth the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and
supersede any prior negotiations, agreements, understandings or
arrangements between the parties hereto with respect to the subject
matter hereof.
10.5 Binding Effect; Benefits. This Agreement and the
Equity Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors. Nothing in
this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto, or their respective
successors, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
10.6 Assignability. This Agreement and any rights
pursuant hereto shall not be assignable by either party hereto
without the prior written consent of the other party; provided,
however, that Purchaser may assign its rights hereunder to any
wholly-owned subsidiary of the Purchaser.
10.7 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
(a) "Business Day" means any day on which banks are
not required or authorized to close in New York City.
(b) "Equity Agreement" means the Equity Agreement
dated as of the date hereof attached hereto as Exhibit 1.
(c) "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(d) "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvement Act of 1976, as amended.
(e) "KCC" means the State Corporation Commission of
the State of Kansas.
(f) "Note" shall have the meaning ascribed thereto
in the Equity Agreement.
(g) "Person" means an individual, partnership,
corporation (including, without limitation, a business trust),
joint stock company, limited liability company, trust,
unincorporated association, joint venture or other entity,
government or governmental authority.
(h) "Securities Act" means the Securities Act of
1933, as amended.
10.8 Applicable law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York without regard to principles of conflicts of law.
10.9 Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this
Agreement.
10.10 Submission to Jurisdiction. (a) Each of the
parties hereto irrevocably consents that any action or proceeding
brought by the other party hereto in respect of the transaction
contemplated hereby may be brought in the courts of the State of
New York in the Borough of Manhattan or of the United States of
America for the Southern District of New York and, by execution and
delivery of this Agreement, the parties hereto hereby irrevocably
waive any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non
conveniens, which any of them may now or hereafter have to the
bringing of any such action or proceeding in such respective
jurisdiction.
(b) Each of the parties hereto irrevocably consents
to the service of process of any of the aforesaid courts in any
such action or proceeding by the mailing of copies thereof by
registered mail, postage prepaid, to such party at its address
provided herein.
10.11 Counterparts. This Agreement 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; provided, however, that this Agreement shall not
be effective unless and until at least one counterpart is executed
and delivered by each party hereto.
10.12 Termination. Any party hereto shall be able to
terminate this Agreement and their obligations hereunder if the
Closing shall not have occurred by February 15, 1996, provided that
the party seeking termination is not in breach of any of its
representations, warranties, covenants or agreements contained
herein.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Stock Purchase Agreement on the day and year first above
written.
XXXXXXX TRANSPORTATION, INC.
By:
Name:
Title:
XXXXXXX INC.
By:
Name:
Title:
WESTERN RESOURCES, INC.
By:
Name:
Title:
