STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") made and entered
into July 11, 2002 is made by and among XXXXXX CORPORATION (the "Company"),
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Master Trustee of the Xxxxxx Retirement
Plans Trust (the "Seller"), and Xxxxxx Investment Management Company ("HIMCO").
WHEREAS, HIMCO has the authority to invest certain assets of the
Xxxxxx Retirement Plans Trust (the "Xxxxxx Trust"), including the Purchased
Shares (defined below);
WHEREAS, the Seller is a directed trustee of the Xxxxxx Trust and
acts solely at the direction of HIMCO as to the Purchased Shares;
WHEREAS, HIMCO desires to cause the Seller to sell to the Company,
and the Company desires to purchase from the Seller, certain shares of common
stock, par value $1.00 per share, of the Company ("Common Stock") on the terms
and conditions set forth in this Agreement;
WHEREAS, prior to entering into this Agreement, HIMCO and the Company
shall have entered into a confidentiality agreement, dated as of July 11, 2002
(the "Confidentiality Agreement", together with this Agreement, the "Transaction
Documents");
NOW, THEREFORE, in consideration of the premises, covenants,
representations, warranties and mutual agreements herein set forth, the parties
hereto agree as follows:
ARTICLE I
Purchase and Sale
1.01 Purchase and Sale. At the Closing, the Company hereby agrees
to purchase from the Seller, and the Seller hereby agrees to sell to the
Company, 1,118,942 shares of Common Stock (the "Purchased Shares") at a purchase
price of $2.50 per share for an aggregate purchase price of $2,797,355 (the
"Purchase Price").
1.02 Closing. The closing of the purchase and sale of the
Purchased Shares contemplated by this Agreement (the "Closing") shall take place
on a day mutually agreed to by HIMCO and the Company, but no later than by 2 pm
(eastern time) July 17, 2002, provided, however, that HIMCO, the Seller, and the
Company shall have executed and delivered this Agreement no later than 5 pm
(eastern time) July 15, 2002.
1.03 Payment of Purchase Price; Delivery of Purchased Shares. On
the Closing date (i) the Company shall transfer the Purchase Price to Mellon
Investor Services (together with its affiliates, "Mellon") and instruct Mellon
to input a Receive Versus Payment ("RVP") transaction for settlement through its
Depository Trust Company ("DTC") Account #954 (the "Mellon Account"); (ii) HIMCO
shall direct the Seller to input a Deliver Versus Payment ("DVP") transaction
for settlement through the Seller's DTC Account #903; and (iii) upon DTC's
receipt of both the DVP and the RVP, DTC shall deposit the Purchase Price into
the Seller's DTC account and simultaneously transfer the Purchased Shares to the
Mellon Account.
ARTICLE II
Representations and Warranties of the Seller
The Seller represents and warrants to the Company as of the date
hereof and as of the date of Closing.
2.01 Authority; Authorization; No Conflicts, Etc. The Seller has
all requisite corporate power and authority to enter into this Agreement. This
Agreement constitutes the legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity. The execution, delivery and performance by the
Seller of this Agreement will not violate any provision of any law, order,
judgment or decree applicable to the Seller, or conflict with any agreement to
which the Seller is a party. No consents, or authorizations of third parties are
needed for the performance by the Seller of its obligations under this
Agreement.
2.02 Ownership of the Shares. The Seller has full title to the
Purchased Shares to be sold by it pursuant to this Agreement, and such Purchased
Shares are validly issued, fully paid and nonassessable. Upon consummation of
the transactions contemplated by this Agreement, the Company will obtain full
title to all of the Purchased Shares, free and clear of any liens or
encumbrances, and with no defects of title whatsoever.
2.03 No Brokers or Finders. Neither the Seller, nor any of its
officers, directors, employees or stockholders has employed any broker or
finder in connection with the transaction contemplated by this Agreement.
2.04 Relationship to HIMCO. The Seller is a directed trustee of
the Xxxxxx Trust and acts solely at the direction of HIMCO as to the Purchased
Shares.
ARTICLE III
Representations and Warranties of HIMCO
HIMCO represents and warrants to the Company as of the date hereof
and as of the date of Closing.
3.01 Authority; Authorization; No Conflicts, Etc. HIMCO has all
requisite corporate power and authority to enter into the Transaction Documents.
The Transaction Documents constitute the legal, valid and binding obligation of
HIMCO, enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity. The execution, delivery and performance by HIMCO
of the Transaction Documents will not violate any provision of any law, order,
judgment or decree applicable to HIMCO, or conflict with any agreement to which
HIMCO is a party. No consents, or authorizations of third parties are needed for
the performance by HIMCO of its obligations under the Transaction Documents.
3.02 No Brokers or Finders. Neither HIMCO, nor any of its
officers, directors, employees or stockholders has employed any broker or finder
in connection with the transaction contemplated by this Agreement.
3.03 Relationship to Seller. HIMCO has the authority to direct the
Seller to sell the Purchased Shares. The Seller is a directed trustee of the
Xxxxxx Trust and acts solely at the direction of HIMCO as to the Purchased
Shares.
ARTICLE IV
Representations and Warranties of the Company
4.01 Authority; Authorization; No Conflicts, Etc. The Company has
all requisite corporate power and authority to enter into the Transaction
Documents. The Transaction Documents constitute the legal, valid and binding
obligation of the Company, enforceable in accordance with their terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity. The execution,
delivery and performance by the Company of the Transaction Documents will not
violate any provision of any law, order, judgment or decree applicable to the
Company, or conflict with any agreement to which the Company is a party. No
consents, or authorizations of third parties are needed for the performance by
the Company of its obligations under the Transaction Documents.
ARTICLE V
Miscellaneous
5.01 Entire Agreement. The Transaction Documents represent the
entire agreement of the Company and HIMCO, and this Agreement represents the
entire agreement of the Company and Seller and, in each case, supersede all
prior agreements and understandings, relating to the subject matter hereof, and
the terms of such agreements may not be modified, amended, altered or
supplemented except by an agreement in writing signed by the parties hereto.
5.02 Binding Effect; Assignment. This Agreement shall inure
to the benefit of, and be binding upon, the parties hereto and their successors
and assigns. Neither party may assign its rights, duties or obligations
hereunder in whole or in part.
5.03 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same document, provided that, a
facsimile signature shall be considered due execution and shall be binding upon
the signatory thereto with the same force and effect as if the signature were an
original, not a facsimile signature.
5.04 Amendment and Waiver. No amendment of this Agreement
shall be binding unless the same shall be in writing and duly executed by the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar).
5.05 Governing Law; Construction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
regardless of the laws that might otherwise govern under principles of conflict
of laws applicable thereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: CEO
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Master Trustee
of the Xxxxxx Retirement Plans Trust
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXX INVESTMENT MANAGEMENT COMPANY
By: /s/ X. X. Xxxxx
Name: X. X. Xxxxx
Title: Portfolio Manager
