RIGHT OF FIRST OFFER AND FIRST REFUSAL AGREEMENT
This Right of First Offer and First Refusal Agreement (the
"AGREEMENT"), dated as of September 23, 1996, is entered into by and among
FIREMAN'S FUND INSURANCE COMPANY, a California corporation ("FFIC"), XXXX X.
XXXXXXXXXX, an individual ("XXXXXXXXXX") and CROP GROWERS CORPORATION, a
Delaware corporation (the "COMPANY").
RECITALS
A. FFIC and the Company are parties to that certain Stock Purchase
Agreement dated as of July 10, 1996, whereby FFIC is purchasing shares of the
Company's Series A Convertible Preferred Stock (the "SHARES").
B. In fulfillment of a condition to the purchase of the Shares by
FFIC, Xxxxxxxxxx desires to grant FFIC the right of first offer and first
refusal to purchase certain shares of the Company's Common Stock which might
otherwise be transferred, offered for sale or sold by Xxxxxxxxxx to third
parties in certain circumstances, upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 "FIRST REFUSAL STOCK" shall mean all shares of the Common Stock (as
defined below) now or hereafter beneficially owned by Xxxxxxxxxx. The number of
shares of First Refusal Stock currently owned by Xxxxxxxxxx, as well as all
currently outstanding options and warrants to purchase shares of First Refusal
Stock, is set forth on EXHIBIT A hereto, which Exhibit shall automatically be
amended from time to time to reflect the changes in the number of shares
beneficially owned by Xxxxxxxxxx, including dispositions of Common Stock not
subject to the rights generated hereunder or dispositions which occur after
complying with the notice provisions of Section 2 herein.
1.2 "COMMON STOCK" shall mean the Company's Common Stock and shares of
the Company's Common Stock issued or issuable upon exercise of options or
warrants to purchase shares of the Company's Common Stock.
SECTION 2. RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL
2.1 RIGHT OF FIRST OFFER.
(a) Xxxxxxxxxx may, if he desires to sell, transfer, assign or
otherwise dispose of any shares of First Refusal Stock to any person other than
the Company and does not have a particular transaction or a particular buyer in
mind, make a written offer (the "OFFER") to FFIC (pursuant to the terms of
Section 7.1 of this Agreement) to sell all or part of his First Refusal Stock at
a stated price (the "OFFER PRICE");
(b) If FFIC does not agree to pay the Offer Price, it must within 15
days after it receives the Offer (the "RESPONSE DUE DATE") either state a price
(in a notice pursuant to the terms of Section 7.1 of this Agreement) at which it
is willing to purchase the shares (the "COUNTER-OFFER PRICE") or state that it
is not interested in purchasing the shares which are the subject of the Offer in
a notice pursuant to the terms of Section 7.1 of this Agreement;
(c) If Xxxxxxxxxx is unwilling to accept the Counter-Offer Price,
Xxxxxxxxxx shall be free for a period of 180 days after the Response Due Date to
sell the shares which are the subject of the Offer to any third party at any
price which exceeds 105% of the Counter-Offer Price free and clear of any
further obligations under Sections 2 and 3 of this Agreement;
(d) If FFIC declines to state a Counter-Offer Price, Xxxxxxxxxx may for
a period of 180 days after the Response Due Date sell the shares which are the
subject of the Offer to a third party at 95% or more of the Offer Price free and
clear of any further obligations under Sections 2 and 3 of this Agreement;
(e) If FFIC does not respond by the Response Due Date to the Offer,
such silence shall be deemed the same as a statement that FFIC is unwilling to
purchase the subject shares at the Offer Price, thereby freeing Xxxxxxxxxx for a
period of 180 days after the Response Date to sell the shares which are the
subject of the Offer at 95% or more of the Offer Price.
2.2 RIGHT OF FIRST REFUSAL. In the event that Xxxxxxxxxx desires, at
any time, to enter into a sale, transfer, assignment or other disposition of any
shares of First Refusal Stock, or any shares of First Refusal Stock are subject
to any involuntary transfer, other than (in each case) a sale to the Company, a
sale to a third party after Xxxxxxxxxx has complied with the terms of Section
2.1 above, or sales which satisfy any of the conditions in Section 2.3 below,
Xxxxxxxxxx shall deliver a notice (the "NOTICE") to FFIC (with a copy to the
Company) at least twenty (20) days prior to the closing date of such sale,
pursuant to the provisions set forth in Section 7.1 of this Agreement. The
Notice shall describe in reasonable detail the proposed sale including, without
limitation, the number of shares of First Refusal Stock to be sold, the terms of
such sale, the consideration to be paid, and the name and address of each
prospective purchaser. For purposes of this Section 2.2, in the case of any
involuntary transfer of First Refusal Stock by Xxxxxxxxxx (including, without
limitation, transfers as the result of any bankruptcy action), the First Refusal
Stock to be transferred shall be valued at fair market value, to be determined
by an appraiser mutually agreeable to the parties, if necessary.
2.3 EXEMPTIONS. The offer procedure and notice requirements specified
in Sections 2.1 and 2.2 and the provisions of Section 3 shall be inapplicable in
the following sales of First Refusal Stock:
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(a) Any sales of First Refusal Stock in open market transactions made
in accordance with the manner of sale provisions set forth in Rule 144(f) ("RULE
144(F)") under the Securities Act of 1933, as amended from time to time (the
"SECURITIES ACT") which are within the volume limitations set forth in
Rule 144(e)(1) under the Securities Act, as amended from time to time
("RULE 144(E)(1)"), PROVIDED THAT, Xxxxxxxxxx confirms to the Company in writing
concurrent with any particular sale that such sale is not part of a negotiated
transaction and Xxxxxxxxxx is unaware of the identity of the prospective
purchaser;
(b) Any sales of First Refusal Stock in open market transactions made
in accordance with the manner of sale provisions set forth in Rule 144(f) in an
amount greater than the limits imposed by Rule 144(e)(1); PROVIDED THAT,
Xxxxxxxxxx shall provide FFIC with a certificate at the time of the transaction,
stating that (i) such sale is not part of a negotiated transaction,
(ii) Xxxxxxxxxx is unaware of the identity of the prospective purchaser, and
(iii) Xxxxxxxxxx is not aware of any active purchaser of the Company's stock
whose participation in such sale would exceed the FFIC Total (defined below), or
which, when combined with shares of Common Stock beneficially owned by such
party and its affiliates, would give such party and its affiliates beneficial
ownership of a number of shares of Common Stock which is equal to or greater
than the FFIC Total;
(c) Any sales or other dispositions of First Refusal Stock in a
transaction, or a series of transactions with the same party or its affiliates,
in an amount which neither (i) exceeds the FFIC Total, nor (ii) when combined
with the shares of Common Stock beneficially owned by such party and its
affiliates, would give such party and its affiliates beneficial ownership of a
number of shares of Common Stock which is equal to or greater than the FFIC
Total; or
(d) Any transfers of First Refusal Stock to any spouse, child or
immediate family member of Xxxxxxxxxx, or to a trust established for the sole
benefit of any of the foregoing or any combination of the foregoing, so long as
the recipient thereof continues to be obligated under this Agreement to the same
extent as Xxxxxxxxxx is obligated.
2.4 APPLICATION OF THIS AGREEMENT TO PARTICULAR TRANSACTIONS. In
determining whether or not a particular transaction or series of transactions is
exempt under Section 2.3(c), Xxxxxxxxxx shall be obligated only to conduct a
review of publicly available information with regard to the prospective buyer
and obtain a certification from the prospective buyer addressed to FFIC that the
transaction or series of transactions will not result in the prospective buyer
beneficially owning more than 754,717 shares of Common Stock, such number of
shares representing FFIC's current beneficial ownership of the Company's Common
Stock on an as-converted basis (the "FFIC TOTAL"). FFIC hereby undertakes to
notify Xxxxxxxxxx promptly in the event of any change in the FFIC Total. Until
Xxxxxxxxxx receives notice of such change, he is entitled to rely on information
previously given him by FFIC.
SECTION 3. PURCHASE RIGHT
3.1 PURCHASE OF FIRST REFUSAL STOCK.
(a) Xxxxxxxxxx hereby grants FFIC the right, and FFIC shall have the
right, exercisable upon written notice to Xxxxxxxxxx in accordance with Section
7.1 of this Agreement within twenty (20) days after receipt by FFIC of the
Notice, to purchase all, but not less than all, of the shares of
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First Refusal Stock which are the subject of the Notice at the price and upon
the terms specified in the Notice.
(b) Whenever Xxxxxxxxxx and FFIC agree to a sale of First Refusal Stock
pursuant to Section 2.1 above or FFIC exercises its right of first refusal under
Section 3.1(a) above, the closing of such purchase shall occur within fifteen
(15) days thereafter, subject to the receipt of regulatory approval, if any is
needed (including, without limitation, expiration or early termination of the
applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended), at the offices of the Company in Overland Park, Kansas or
at such other date or place as the parties shall mutually determine; PROVIDED,
HOWEVER, that if such required regulatory approval is not received within
fifteen (15) days after Xxxxxxxxxx and FFIC agree to a sale of First Refusal
Stock, FFIC will pay simple interest to Xxxxxxxxxx on the total purchase price
at a rate equivalent to the prime rate established from time to time by Bank of
America NT & SA for the period from the fifteenth day after Xxxxxxxxxx and FFIC
agree to a sale until the closing of such purchase and PROVIDED FURTHER that if
such regulatory approval is not obtained prior to 90 days after Xxxxxxxxxx and
FFIC agree to a sale of First Refusal Stock, Xxxxxxxxxx shall, at any time
thereafter, be permitted to sell the subject shares of First Refusal Stock
without restriction, and FFIC shall pay interest to Xxxxxxxxxx in the amount
described in this sentence for the period ending on such 90th day.
3.2 SUBSEQUENT SALES. The exercise or non-exercise of the rights of
FFIC under this Agreement to purchase shares of First Refusal Stock offered by
Xxxxxxxxxx shall not adversely affect its rights to purchase shares of First
Refusal Stock in subsequent offerings by Xxxxxxxxxx pursuant to Sections 2 and 3
of this Agreement.
3.3 MECHANICS OF SALE UNDER SECTION 2.2. With respect to transactions
covered by Section 2.2 of this Agreement, if FFIC elects not to purchase the
shares of First Refusal Stock subject to the Notice, Xxxxxxxxxx may, not later
than ninety (90) days following delivery to FFIC of the Notice, consummate a
sale of the First Refusal Stock covered by the Notice on the terms and
conditions described in the Notice. Any proposed transfer on terms and
conditions materially more favorable to the proposed buyer from those described
in the Notice, as well as any subsequent proposed sale of any of the First
Refusal Stock by Hemmingson, shall again be subject to the first refusal rights
of FFIC and shall require compliance by Xxxxxxxxxx with the procedures described
in Sections 2 and 3 of this Agreement.
SECTION 4. LEGENDS; TRANSFER PROCEDURES
4.1 LEGENDS. Each certificate representing shares of the Company now
or hereafter beneficially owned by Xxxxxxxxxx shall be endorsed with the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN FIRST OFFER AND FIRST REFUSAL RIGHTS AS SET FORTH IN A
CERTAIN RIGHT OF FIRST OFFER AND FIRST REFUSAL AGREEMENT DATED
SEPTEMBER 23, 1996 BY AND BETWEEN XXXX X. XXXXXXXXXX, FIREMAN'S
FUND INSURANCE COMPANY AND CROP GROWERS CORPORATION. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION."
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4.2 TRANSFER PROCEDURES. Transfers of First Refusal Stock in
accordance with Sections 2.3(a) and 2.3(b) of this Agreement are subject to the
procedures set forth in that certain General Letter to Brokers, a copy of which
is attached hereto as EXHIBIT B. The Company is hereby authorized and directed
to cause the removal of the legend described in Section 4.1 and permit the
transfer of all shares of First Refusal Stock which are sold in accordance with
Sections 2.3(a) or 2.3(b) upon compliance with the applicable procedure
described in Exhibit B.
SECTION 5. RECAPITALIZATION
In the event that, as the result of a stock split or stock dividend or
combination of shares or any other change, or exchange for other securities, by
reclassification, or recapitalization of the shares, the parties hereto shall be
entitled to new or additional or different shares of stock or securities, such
new or additional or different shares or securities shall be subject to all of
the provisions of this Agreement.
SECTION 6. TERMINATION OF AGREEMENT
The rights and obligations of the parties hereunder shall terminate upon
the earliest to occur of:
(a) the acquittal of Xxxxxxxxxx of the criminal charges brought against
Xxxxxxxxxx in the Indictments now pending against Xxxxxxxxxx in the United
States District Court for the District of Columbia, being number 96-0181 on the
docket of said court and in the United States District Court for the Eastern
District of Louisiana, being number 96-198 on the docket of said court
(collectively, the "Indictments");
(b) the withdrawal or dismissal of those criminal charges referenced in
each of the Indictments (without any plea arrangement or plea bargain entered
into by Xxxxxxxxxx);
(c) one year after the expiration or termination of any period of
suspension or debarment imposed on Xxxxxxxxxx by the Federal Crop Insurance
Corporation pursuant to 7 C.F.R. Section 3017.320(a)(i);
(d) the death of Xxxxxxxxxx;
(e) January 1, 2000;
(f) FFIC's beneficial ownership of the Company's common stock on an as-
converted basis shall fall below 5% of all outstanding shares on a fully diluted
basis; or
(g) Xxxxxxxxxx'x beneficial ownership of the Company's common stock
shall be 4% or less of all issued and outstanding shares of the Company's common
stock.
SECTION 7. MISCELLANEOUS
7.1 NOTICES. Any notice or other communication under or relating to
this agreement shall be given in writing and shall be deemed sufficiently given
and served for all purposes when personally delivered, delivered via reputable
overnight courier or given by telefax with receipt
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verified by printout of the transmitting machine (or otherwise confirmed in
writing, in which case the notice shall be deemed given when such written
confirmation is received). All communications shall be sent to the party to be
notified at the address set forth below or at such other address as such party
may designate by ten (10) days advance written notice to the other parties
hereto:
(a) If to FFIC:
Fireman's Fund Insurance Company
000 Xxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Fireman's Fund Insurance Company
000 Xxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel's Office
Fax: (000) 000-0000
(b) If to Hemmingson:
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx and Xxxxxx
2400 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
(c) If to the Company:
Crop Growers Corporation
10895 Xxxxxx, 3rd Floor
X.X. Xxx 00000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Chief Executive Officer
Fax: (000) 000-0000
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with a copy to:
Xxxx Xxxxxxx, Esq.
Xxxxxx & Whitney
507 Davidson Building
0 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
7.2 ASSIGNMENT. Neither Xxxxxxxxxx nor FFIC may assign its rights and
obligations under this Agreement to any party without the prior written consent
of the other party.
7.3 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
7.4 AMENDMENTS AND WAIVERS. Any amendment or modification of this
Agreement shall be effective only if evidenced by a written instrument executed
by duly authorized representatives of the parties hereto. Any party may waive
its individual rights hereunder, which shall be effective only if evidenced by a
written instrument executed by a duly authorized representative of such party.
In no event shall such waiver of any rights hereunder constitute the waiver of
such rights in any future instance unless the waiver so specifies in writing.
7.5 GOVERNING LAW. This Agreement is being executed and delivered and
shall be governed by and construed in accordance with the laws of the State of
Delaware.
7.6 BEST EFFORTS. The Company agrees to use its best efforts to comply
with the terms of this Agreement, to inform the parties hereto of any known
breach hereof and to assist the parties hereto in the exercise of their rights
and performance of their obligations hereof.
7.7 ATTORNEYS' FEES. If any party shall bring an action in law or equity
against any other party to enforce or interpret any of the terms, covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to reasonable attorneys' fees, which the other party hereby agrees to
pay.
7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties pertaining to its subject matter and supersedes all prior
written or oral agreements and understandings of the parties with respect to
such subject matter.
7.9 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original but all of which together shall constitute one
instrument.
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7.10 SINGULAR AND PLURAL, ETC. Whenever the singular number is used herein
and where required by the context, the same shall include the plural, and the
neuter gender shall include the masculine and feminine genders and vice versa.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year indicated above.
FFIC: FIREMAN'S FUND INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXXXXXXX:
/s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxxx
COMPANY: CROP GROWERS CORPORATION
By /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Chief Financial Officer and
Secretary
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