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EXHIBIT 3(a)
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of May 10, 1999 by and among ZS PUBCO I L.P., a Delaware limited partnership
("Buyer") and Xxxx Capital Partners V, L.P. ("Xxxx"), Xxxx Capital Partners V
(Domestic Annex Fund), L.P. ("Domestic"), and Xxxx Capital Partners V
International, L.P. (together with Xxxx and Domestic, the "Sellers", and each
individually, a "Seller").
1. PURCHASE AND SALE OF STOCK.
(a) Upon the terms and subject to the conditions contained herein, each
Seller hereby irrevocably agrees to sell, convey, transfer, assign and deliver
to Buyer the number of shares of common stock, par value $.01 per share (the
"Stock") of Xxxx Group Inc. (the "Company") set forth below its name on the
signature page hereto, and Buyer hereby agrees to acquire from the Sellers an
aggregate of 439,849 (the "Shares") of the Stock at a price of $6.75 per share
(the "Per Share Price"). The closing of the transactions contemplated hereby
(the "Closing") shall be held at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., local time, on the date that is
ten (10) business days after the satisfaction or waiver of all conditions to
closing contained in paragraph 2 below or such other time and/or place as the
parties hereto otherwise agree (the "Closing Date").
(b) At the Closing Buyer shall pay to each Seller an aggregate amount
equal to the product of the number of Shares to be purchased on such date from
such Seller and the Per Share Price (the "Purchase Price"), by cashier's or
certified check or wire transfer of immediately available funds to an account or
accounts designated by such Seller, and in consideration of the Purchase Price,
Sellers shall deliver or cause to be delivered to the Buyer, certificates
evidencing the number of Shares being purchased at such Closing free and clear
of any and all liens, claims, pledges, charges, encumbrances or restrictions on
transfer whatsoever, in each case duly endorsed in blank for transfer or
accompanied by stock powers duly executed in blank or by such other instruments
for transfer as shall be reasonably acceptable to Buyer.
2. CLOSING CONDITIONS. The obligation of Buyer to purchase the Stock from
Sellers hereunder is subject and conditioned upon the expiration of all
applicable waiting periods, if any, pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended. Buyer hereby agrees to use commercially
reasonable efforts to obtain the approvals (or waivers) required hereunder and
shall promptly file any such documents or provide such information as may be
reasonably necessary to obtain such approvals (or waivers) and shall promptly
respond to any inquiries from the relevant government officials with respect
thereto.
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3. REPRESENTATIONS & WARRANTIES.
(a) Sellers. As a material inducement to Buyer to purchase the
Shares, each Seller hereby represents and warrants that: (i) this Agreement
constitutes the valid and legally binding obligation of the Seller, enforceable
in accordance with its terms and conditions; (ii) Seller is sophisticated in
financial matters and is able to evaluate the risks and benefits of the sale of
the Shares; Seller has determined that the sale of the Shares is suitable for
the Seller, based upon its financial situation and needs, as well as its other
securities holdings; (iii) Seller has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the sale of the Shares
and has had full access to such other information concerning the Company and its
subsidiaries and affiliates as he or it, as the case may be, has requested in
order to evaluate the merits and risks inherent in selling the Shares; (iv)
Seller has received and reviewed, or has had the opportunity to review, all
reports and other documents filed by the Company with the Securities and
Exchange Commission; and (v) Seller acknowledges that one or more affiliates of
Buyer may be directors or officers of the Company, and Seller acknowledges and
agrees that OTHER THAN THE REPRESENTATIONS SPECIFIED IN THIS AGREEMENT, NO PARTY
HAS MADE NOR IS SELLER RELYING UPON ANY EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES OF ANY TYPE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR
WARRANTIES CONCERNING THE COMPANY'S PAST OR FUTURE PERFORMANCE, WHETHER POSITIVE
OR NEGATIVE, OR AS TO THE CURRENT OR FUTURE VALUE OF THE SHARES. THE PARTIES
AGREE THAT THE PER SHARE PRICE IS NOT BASED ON ANY CALCULATION OF THE COMPANY'S
PAST OR FUTURE PERFORMANCE, BUT HAS BEEN AGREED BY THE PARTIES IN AN ARM'S
LENGTH NEGOTIATION.
(b) Buyer. As a material inducement to the Sellers to sell the
Shares, Buyer hereby represents and warrants that: (i) this Agreement
constitutes the valid and legally binding obligation of the Buyer, enforceable
in accordance with its terms and conditions; and (ii) except as provided herein,
Buyer need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
4. GENERAL PROVISIONS.
(a) Confidentiality. Each of Buyer and each Seller agrees that
neither it nor any of its directors, officers, employees, agents or affiliates,
shall make any public announcement with respect to this Agreement or the
transactions contemplated hereby, or disclose the terms or existence of this
Agreement to any third party, except to the extent required by applicable law,
without the prior written consent of the other party hereto.
(b) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
Buyer, Sellers and their respective successors and assigns.
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(c) CHOICE OF LAW. THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS OR CHOICE OF LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION
WHICH WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THEN
THE STATE OF NEW YORK.
(d) Entire Agreement. This Agreement contains the complete agreement
between the parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date and year first above written.
ZS PUBCO I L.P.
By: ZS PUBCO I L.L.C., its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Manager
XXXX CAPITAL PARTNERS V, L.P.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Manager
Title: Xxxx Capital Management LLC,
its General Partner
Number of Shares transferred: 392,521
XXXX CAPITAL PARTNERS V (DOMESTIC ANNEX
FUND), L.P.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Manager
Title: Xxxx Capital Management LLC,
its General Partner
Number of Shares transferred: 33,033
XXXX CAPITAL PARTNERS V INTERNATIONAL, L.P.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Manager
Title: Xxxx Capital Management LLC,
its General Partner
Number of Shares transferred: 14,295
