Exhibit 11
Warrant Purchase Agreement
WARRANT PURCHASE AGREEMENT, dated as of December 14, 2004, between Dayton
Ventures LLC ("Seller") and Xxxxxx Brothers Inc. ("Purchaser").
1. Sale of Warrant. Subject to the terms and conditions contained herein,
Seller hereby sells to Purchaser and Purchaser hereby purchases from Seller
8,000,000 warrants (each, a "Warrant"), dated March 13, 2000, each such
Warrant entitling its holder to purchase one share of Company common stock
("Common Stock") of DPL Inc. (the "Company") at a price equal to $21.00 per
share subject to the adjustment provisions and having the terms and conditions
set forth therein. In consideration for such Warrants, Purchaser shall pay
Seller $4.00 per Warrant.
The total proceeds to the Seller shall equal: $32,000,000.00.
2. Closing. Closing of the sale and purchase under Section 1 of this Agreement
(the "Closing") shall take place on the later of 5 business days after the
date hereof and the date on which the Company actually delivers the Warrants
in such names as the Purchaser may instruct (or such later date as Purchaser
and Seller mutually agree). At or before Closing, Seller shall cause the
Warrants and, to the extent transferable, one of its three demand registration
rights under the Securityholders and Registration Rights Agreement, as
amended, relating to the Warrants (the "Registration Rights") to be delivered
to Purchaser, and Purchaser shall execute any documentation reasonably
necessary to effect such delivery. Delivery of the Warrants and the
Registration Rights by Seller shall be made in accordance with the
instructions of the Purchaser and in such name(s) as the Purchaser shall
instruct. Seller makes no representation or warranty as to the Registration
Rights and Purchaser takes the Registration Rights on an "as is where is"
basis. Upon receipt of such deliveries, Purchaser shall make payment of the
aggregate purchase price in accordance with Seller's wire instructions.
3. Termination of Prior Lock-Up. In furtherance of the sale and purchase as
contemplated in Section 1 and Section 2 of this Agreement, Purchaser hereby
releases Seller from the lock-up restrictions contained in Section 5 of the
Warrant Purchase Agreement, dated as of November 23, 2004 by and between
Purchaser and Seller (the "Original Warrant Purchase Agreement"). Seller and
Purchaser hereby agree that the Original Warrant Purchase Agreement shall be
amended by (i) deleting Section 5 in its entirety and (ii) enumerating the
provisions subsequent thereto as "5" through "8", respectively.
3. Representations of Seller. Seller represents and warrants that:
a) Seller beneficially owns and has the unrestricted right (other than as
such right may be restricted by laws of general application, including
the Securities Act of 1933, as amended (the "Act")) to transfer the
Warrants, free and clear of all liens, claims, charges and other
encumbrances.
b) Seller has full right, power and authority to enter into this Agreement
and to transfer the Warrants in accordance with the terms of this
Agreement and this Agreement constitutes a legal, valid and binding
obligation of Seller.
c) Seller's execution, delivery and performance of the Agreement do not
violate or conflict with any law applicable to it, any agreement or
instrument to which it is a party, any order or
judgment of any court or other agency of government applicable to it or
any of its assets, or any contractual restriction binding on or affecting
it or any of its assets.
d) Seller has not assigned or transferred any interest in the Warrants.
Seller acquired the Warrants and paid for them in full on or before March
13, 2000.
e) Seller acknowledges and represents that it has made its own investigation
into the merits and risks of entering into the transaction contemplated
by this Agreement, and that it has the capacity and financial expertise
to evaluate the same; and that it has not relied on any representations
or warranties of Purchaser or its agents or affiliates except for the
representations and warranties of Purchaser expressly provided herein.
f) Seller is not currently acting as an agent of the Company.
g) Seller is not prompted to sell the Warrants by any material, non-public
information concerning the Company.
h) Seller has not offered or sold any shares of common stock of the Company
by any form of general solicitation or general advertising.
i) Seller has obtained all necessary consents required in order to transfer
validly the Warrants to Purchaser in accordance with their terms.
j) Seller will make all required filings under all applicable securities
laws in connection with this transaction.
k) The Warrants are eligible for resale under Rule 144A under the Act.
4. Representations of Purchaser. Purchaser represents and warrants that:
a) Purchaser is acquiring the Warrants for its own account and will resell
the Warrants or will sell the shares acquired in connection with the
exercise thereof only in transactions which would be permissible under
the securities laws of the United States of America or any state thereof.
b) Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Act.
c) Purchaser is aware that the legends set forth in the Warrants will appear
on the Warrants and any certificates representing the Warrants for so
long as required by the Warrants.
d) Purchaser has full right, power and authority to enter into this
Agreement, and to purchase the Warrants from Seller on the terms
described herein, and this Agreement constitutes a legal, valid and
binding obligation of Purchaser.
e) Purchaser acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the transaction
contemplated by this agreement and that it has the capacity and financial
experience to evaluate the same. Purchaser has received all the
information it considers necessary or appropriate for deciding whether to
acquire the Warrants and has had an opportunity to secure all such
information as it deems necessary regarding the business, properties,
prospects and financial condition of the Company.
f) Purchaser is not an "affiliate" of the Company, as such term is defined
in Regulation 230.144(a)(1) under the Act.
g) Purchaser understands that the offer and the sale of the Warrants are not
being registered under the Act or under any state or foreign securities
laws.
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5. Lock-Up. Seller agrees that, for a period of 30 days from the date hereof,
it will not, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock or other Warrants or
securities convertible into or exchangeable for Common Stock or other
Warrants, or sell or grant options, rights or warrants with respect to any
shares of Common Stock or other Warrants or securities convertible into or
exchangeable for Common Stock or other Warrants or (2) enter into any swap or
other derivatives or other transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of
Common Stock or Warrants, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or Warrants or other
securities, in cash or otherwise, in each case without the prior written
consent of Xxxxxx Brothers Inc.
6. Law Governing. This Agreement shall be governed by and constructed in
accordance with the laws of the State of New York without reference to choice
of law doctrine.
7. Parties in Interest. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors, and assigns of the parties
hereto.
8. Miscellaneous. This Agreement may be executed concurrently in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Each counterpart may be delivered by
facsimile transmission, which transmission shall be deemed delivery of an
originally executed document. The headings of the Sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof. This
Agreement constitutes the entire Agreement between the parties with respect to
the subject matter hereof and supersedes all the previous agreements, promise
or representations, whether written or oral, between the parties.
9. Fees and Expenses. Each of the Purchaser and Seller agrees to pay its own
expenses and disbursements incident to the performance of its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER: DAYTON VENTURES LLC
By:
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Name:
Title:
PURCHASER: XXXXXX BROTHERS INC.
By:
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Name:
Title:
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