SHARE PURCHASE AND BOND DISCHARGE AGREEMENT
AGREEMENT dated as of June 7, 1999 between Xxxxx Xxxxxxxx Corporation,
a Delaware corporation (the "Company"), and Manville Personal Injury Settlement
Trust (the "Trust").
WHEREAS, the Trust owns 124,927,110 shares of the Company's common stock,
$.01 par value per share (the "Common Stock");
WHEREAS, the Company is the obligor on the Manville Settlement Trusts
Second Bond due March 31, 2015 in favor of the Trust (the "Second Bond");
WHEREAS, the Company and the Trust are parties to an Agreement, dated as of
September 22, 1994, between the Trust and the Company (the "Subsidiary
Agreement");
WHEREAS, the Company and the Trust desire to discharge the Second Bond and
terminate the Subsidiary Agreement, subject to the terms and conditions
contained herein; and
WHEREAS, the Company desires to purchase from the Trust, and the Trust
desires to sell to the Company, a portion of the Trust's shares of the Common
Stock, subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES AND DISCHARGE OF SECOND BOND
1.1 Discharge of Second Bond. Upon the terms and subject to the conditions
of this Agreement, at the Second Bond Closing provided for in Section 1.4
hereof, the Company shall pay to the Trust an amount of $33,215,716 to discharge
the Second Bond (the "Second Bond Amount").
1.2 Purchase and Sale of the Shares. Upon the terms and subject to the
conditions of this Agreement, at the Share Purchase Closing provided for in
Section 1.4 hereof, the Trust will sell, assign, transfer and deliver to the
Company and the Company will purchase, acquire and accept from the Trust, free
and clear of all liens, encumbrances, options, pledges, security interests,
claims, charges or restrictions whatsoever (collectively, "Liens"), a number of
shares (the "Shares") of the Common Stock equal to (a) 166,784,284 divided by
(b) the average of the closing sales price of the Common Stock on the New York
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Stock Exchange for the twenty trading days from (and including) June 8, 1999 to
(and including) July 6, 1999.
1.3 Consideration. Upon the terms and subject to the conditions of this
Agreement, in consideration of the aforesaid sale, assignment, transfer and
delivery of the Shares, at the Share Purchase Closing provided for in Section
1.4 hereof, the Company shall pay to the Trust an amount of $166,784,284.
1.4 Closing. The consummation of the transactions contemplated by Section
1.1 of this Agreement (the "Second Bond Closing") will take place at 11:00 a.m.,
New York City time, on June 30, 1999, or, if the conditions set forth in Article
III hereof with respect to such transactions shall not have been satisfied or
waived by such date, then as soon as reasonably practicable after the
satisfaction or waiver of all such conditions. The consummation of the
transactions contemplated by Section 1.2 of this Agreement (the "Share Purchase
Closing") will take place at 11:00 a.m., New York City time, on July 7, 1999,
or, if the conditions set forth in Article III hereof with respect to such
transactions shall not have been satisfied or waived by such date, then as soon
as reasonably practicable after the satisfaction or waiver of all such
conditions.
1.5 Deliveries by the Trust. At the Second Bond Closing, the Trust shall
deliver to the Company the Second Bond, for cancellation. At the Share Purchase
Closing, the Trust shall deliver to the Company one or more stock certificates
representing the Shares, duly endorsed or accompanied by stock powers duly
executed in blank or duly executed instruments of transfer and with all
requisite stock transfer tax stamps attached.
1.6 Deliveries by the Company. At the Second Bond Closing, the Company
shall deliver to the Trust $33,215,716 by wire transfer of federal funds to the
account specified on Schedule 1.6. At the Share Purchase Closing, the Company
shall deliver to the Trust $166,784,284 by wire transfer of federal funds to the
account specified on Schedule 1.6.
1.7 Subsidiary Agreement. From and after the date hereof, the Subsidiary
Agreement shall be terminated and all rights and obligations thereunder shall be
extinguished.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Trust. The Trust represents and
warrants to the Company:
(a) as of the date of this Agreement and as of the date of each of the
Second Bond Closing and the Share Purchase Closing that:
(i) The Trust has been duly organized and is validly existing as
a trust under the laws of the State of New York. The Trust has all requisite
power and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement have been duly and validly authorized by the Trust,
and no other proceedings on the part of the Trust are necessary to authorize the
execution and delivery of this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Trust and constitutes a valid and binding obligation of the
Trust enforceable against the Trust in accordance with its terms.
(b) as of the date of this Agreement and as of the date of the Second
Bond Closing that:
(i) The Trust has all requisite power and authority to consummate
the transactions contemplated by Section 1.1 of this Agreement. Such
transactions have been duly and validly authorized by the Trust, and no other
proceedings on the part of the Trust are necessary to authorize such
transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders of domestic, foreign, supranational,
national, federal, state, regional or local government and departments, bureaus,
agencies, authorities, commissions, boards, courts, tribunals, or other
legislative, executive, judicial, regulatory or administrative bodies or
instrumentalities of any such government or any official empowered to act on
behalf of any of the foregoing, or any arbitral tribunal acting within the
proper scope of its jurisdiction (collectively, "Governmental Agencies"), if
any, and other persons required to be received by the Trust in order to
consummate the transactions contemplated by Section 1.1 of this Agreement have
been received by the Trust, except for those which the failure to receive would
not prevent or materially delay the consummation of the transactions
contemplated hereby.
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(c) as of the date of this Agreement and as of the Share Purchase
Closing that:
(i) The Trust has all requisite power and authority to consummate
the transactions contemplated by Section 1.2 of this Agreement. Such
transactions have been duly and validly authorized by the Trust, and no other
proceedings on the part of the Trust are necessary to authorize such
transactions.
(ii) The Trust has good and valid title to the Shares, free and
clear of all Liens. At the Share Purchase Closing, good and valid title to the
Shares will pass to the Company, free and clear of all Liens. The Shares are not
subject to any voting trust agreement or other contract, agreement, arrangement,
commitment or understanding, including, without limitation, any contract,
agreement, arrangement, commitment or understanding relating to the voting,
dividend rights or disposition of the Shares, except for certain rights set
forth in the Second Amended and Restated Supplemental Agreement, dated as of
April 5, 1996 between the Company and the Trust.
(iii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Trust in order to consummate the
transactions contemplated by Section 1.2 of this Agreement have been received by
the Trust, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
2.2 Representations and Warranties of the Company. The Company represents
and warrants to the Trust:
(a) as of the date of this Agreement and as of the date of each of the
Second Bond Closing and the Share Purchase Closing that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to execute and
deliver this Agreement. The execution and delivery of this Agreement have been
duly and validly authorized by the Company, and no other proceedings on the part
of the Company are necessary to authorize the execution and delivery of this
Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
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(b) as of the date of this Agreement and as of the date of the Second
Bond Closing that:
(i) The Company has all requisite power and authority to
consummate the transactions contemplated by Section 1.1 of this Agreement. Such
transactions have been duly and validly authorized by the Company, and no other
proceedings on the part of the Company are necessary to authorize such
transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Company in order to consummate the
transactions contemplated by Section 1.1 of this Agreement have been received by
the Company, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
(c) as of the date of this Agreement and as of the Share Purchase
Closing that:
(i) The Company has all requisite power and authority to
consummate the transactions contemplated by Section 1.2 of this Agreement. Such
transactions have been duly and validly authorized by the Company, and no other
proceedings on the part of the Company are necessary to authorize such
transactions.
(ii) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders Governmental Agencies, if any, and
other persons required to be received by the Company in order to consummate the
transactions contemplated by Section 1.2 of this Agreement have been received by
the Company, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
ARTICLE III
CONDITIONS
3.1 Conditions Precedent to the Obligations of the Trust. The obligations
of the Trust to consummate the transactions contemplated by Section 1.1 of this
Agreement are subject to the satisfaction, or waiver by the Trust, of the
condition that the representations and warranties of the Company contained in
Section 2.2 (a) and (b) of this Agreement are true and correct in all material
respects as of the date when made and as of the Second Bond Closing. The
obligations of the Trust to consummate the transactions contemplated by Section
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1.2 of this Agreement are subject to the satisfaction, or waiver by the Trust,
of the condition that the representations and warranties of the Company
contained in Section 2.2 (a) and (c) of this Agreement are true and correct in
all material respects as of the date when made and as of the Share Purchase
Closing.
3.2 Conditions Precedent to the Obligations of the Company. The obligations
of the Company to consummate the transactions contemplated by Section 1.1 of
this Agreement are subject to the satisfaction, or waiver by the Company, of the
condition that the representations and warranties of the Trust contained in
Section 2.1 (a) and (b) of this Agreement are true and correct in all material
respects as of the date when made and as of the Second Bond Closing. The
obligations of the Company to consummate the transactions contemplated by
Section 1.2 of this Agreement are subject to the satisfaction, or waiver by the
Company, of the condition that the representations and warranties of the Trust
contained in Section 2.2 (a) and (c) of this Agreement are true and correct in
all material respects as of the date when made and as of the Share Purchase
Closing.
ARTICLE IV
MISCELLANEOUS
4.1 Termination. If either or both of the Second Bond Closing or the Share
Purchase Closing shall not have occurred on or prior to July 15, 1999, then
either party shall have the right to terminate this Agreement by giving written
notice to the other party hereto, except that such notice shall have no effect
on the transactions consummated at either of the Second Bond Closing or the
Share Purchase Closing that shall have occurred prior to the date of such
notice.
4.2 Amendments. This Agreement may be modified, supplemented or amended at
any time and from time to time only by a writing signed by each party hereto.
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4.3 Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given:
if to the Trust, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
if to the Company, to:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
4.4 Counterparts; Integration. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
together with its Schedules constitutes the entire agreement and understanding
between the parties hereto relating to the subject matter hereof and supersedes
any and all prior agreements and understandings, oral and written, relating to
the subject matter hereof.
4.5 Headings. The headings used in this Agreement are inserted for
convenience only and neither constitute a portion of this Agreement nor in any
manner affect the construction of the provisions of this Agreement.
4.6 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns except that neither the Company nor the Trust may assign
or otherwise transfer any of its rights or delegate obligations under this
Agreement.
4.7 Survival of Representations and Warranties. The representations and
warranties of the parties contained in this Agreement shall survive the Closing
indefinitely.
4.8 Expenses. Each party shall bear all costs and expenses incurred by it
in connection with this Agreement.
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4.9 Specific Performance. Each of the Company and the Trust agrees that the
other party would be irreparably damaged if for any reason the Company or the
Trust, as the case may be, failed to perform its obligations under this
Agreement and that such other party would not have an adequate remedy at law for
money damages in such event. Accordingly, the Company and the Trust each agrees
that the other party shall, to the maximum extent permitted, be entitled to
specific performance and injunctive and other relief to enforce the performance
of this Agreement. This provision is without prejudice to any other rights that
the Company or the Trust may have against the other party for any failure of
such other party to perform its obligations hereunder.
4.10 Third Parties. This Agreement constitutes an agreement solely between
the parties hereto, and is not intended to and shall not confer any rights,
remedies, obligations or liabilities, legal or equitable, on any person or
entity other than the parties hereto and their respective successors and
assigns, or otherwise constitute any person or entity a third-party beneficiary
under or by reason of this Agreement.
4.11 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
including Section 5-1401 of the New York General Obligations Law. The Company
and the Trust hereby submit to the exclusive jurisdiction of the United States
Bankruptcy Court for the Southern District of New York for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Company and the Trust irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
4.12 Further Assurances. From time to time after the Share Purchase Closing
and the Second Bond Closing, at the request of one of the parties hereto, the
Trust and the Company shall execute and deliver to such requesting party such
documents and take such other action as such requesting party may reasonably
request in order to consummate more effectively the transactions contemplated
hereby.
4.13 No Further Representations. Except as set forth in this Agreement,
neither the Trust nor the Company makes nor has made any other representations
or warranties, express or implied.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: X. X. Xxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Managing Trustee
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