STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement "), is made and entered into
as of the 19th day of February, 2002, by and between CHROMCRAFT REVINGTON, INC.
(the "Company"), a Delaware corporation with its principal office in Delphi,
Indiana, and COURT SQUARE CAPITAL LIMITED (the "Selling Shareholder"), a
Delaware corporation with its principal office in New York, New York and an
affiliate of Citigroup Inc.
W I T N E S S E T H :
WHEREAS, the Selling Shareholder owns 5,695,418 shares, comprising
approximately 59.1%, of the issued and outstanding shares of common stock of the
Company;
WHEREAS, the Selling Shareholder desires to sell and transfer to the
Company, and the Company desires to purchase from the Selling Shareholder,
3,695,418 shares of common stock of the Company (the "Shares") upon the terms
and subject to the conditions set forth herein (the "Company Purchase");
WHEREAS, concurrently with the consummation of the Company Purchase, the
Selling Shareholder will sell and transfer its remaining 2,000,000 shares of
common stock of the Company to an employee stock ownership plan to be formed by
the Company for the benefit of the Company's employees (the "ESOP"), and the
ESOP will purchase from the Selling Shareholder, such shares upon the terms and
subject to the conditions set forth in a separate stock purchase agreement (the
"ESOP Stock Purchase Agreement") between the Selling Shareholder and the trustee
of the ESOP (the "ESOP Purchase");
WHEREAS, upon consummation of the Company Purchase and the ESOP Purchase,
the Selling Shareholder will cease to be a shareholder of the Company; and
WHEREAS, the Board of Directors of the Company has authorized and approved
the execution of this Agreement by the Company but has not authorized or
approved the consummation of the Company Purchase or the ESOP Purchase, and the
authorization and approval by the Company's Board of Directors in its sole
discretion of the Company Purchase and the ESOP Purchase is still required
before the Company Purchase and the ESOP Purchase may be consummated.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants, agreements and mutual obligations
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Selling
Shareholder hereby agree as follows:
SECTION 1
PURCHASE AND SALE OF THE SHARES
1.01. Purchase and Sale of the Shares. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as hereinafter defined),
the Selling Shareholder shall sell, transfer, assign and deliver to the Company,
and the Company shall purchase and acquire from the Selling Shareholder, all
right, title and interest in and to the Shares, free and clear of any and all
liens, pledges, security interests, charges, claims, options, rights of first
refusal, rights of conversion, exchange or purchase, and adverse claims or
rights whatsoever.
1.02. The Closing. The closing of the Company Purchase (the "Closing")
shall take place at the offices of Xxxxx XxXxxxx LLP, Xxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxxxx, Xxxxxxx and shall be effective as of 11:59 p.m.,
Indianapolis time, on March 15, 2002 (the "Effective Time"). The date on which
the Closing occurs shall be referred to herein as the "Closing Date." The place,
date and time of the Closing may be changed by mutual agreement of the parties.
1.03. (a) Purchase Price. The aggregate purchase price to be paid at the
Closing by the Company to the Selling Shareholder for the Shares shall be
Thirty-Six Million Nine Hundred Fifty-Four Thousand One Hundred Eighty Dollars
($36,954,180) (the "Purchase Price"), or Ten Dollars ($10.00) for each of the
Shares.
(b)Fee. In addition to the Purchase Price, the Company shall
pay to the Selling Shareholder and its designee at the Closing a total
transaction fee (the "Transaction Fee") of Fifty Cents ($0.50) for each share of
common stock of the Company sold by the Selling Shareholder to the Company and
the ESOP; provided, however, that the Transaction Fee shall not exceed Two
Million Eight Hundred Thousand Dollars ($2,800,000) in the aggregate.
1.04. Method of Payment. At the Closing, the Company shall pay in
immediately available funds by wire transfer to (a) the Selling Shareholder an
amount equal to the Purchase Price, and (b) the Selling Shareholder and its
designee an aggregate amount equal to the Transaction Fee, as specified on
Exhibit A hereto. At least 72 hours prior to the Closing, the Selling
Shareholder shall provide the Company with instructions for payment of the
Purchase Price and the Transaction Fee, including wire transfer instructions,
for itself and its designee.
1.05. Delivery of Stock Certificates. At the Closing, the Selling
Shareholder shall deliver to the Company the certificate or certificates
representing the Shares, duly endorsed in blank or accompanied by stock powers
duly endorsed in blank, in proper form for transfer.
1.06. Further Assurances. At the Company's request, the Selling Shareholder
shall, from time to time after the Closing, execute, acknowledge and deliver
such other documents, instruments and writings and shall take such other actions
as the Company may reasonably request in order to give effect to the Company
Purchase or otherwise as may be necessary to carry out or evidence the
transactions contemplated by this Agreement.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Selling Shareholder as
follows:
2.01. Organization . The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2.02. Authority; No Violations. (a) The Company has the requisite corporate
power and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby subject to the
fulfillment of the conditions precedent set forth in Section 5.01 hereof. This
Agreement and its execution and delivery by the Company have been duly
authorized and approved by the Board of Directors of the Company and, subject to
the fulfillment of the conditions precedent set forth in Section 5.01 hereof,
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms, except to the extent limited by general principles of
equity, by public policy and by bankruptcy, insolvency, reorganization,
liquidation, moratorium, readjustment of debt or other laws of general
application relating to or affecting the enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor the consummation of the
Company Purchase by the Company (with or without notice or lapse of time) or any
action taken by the Company in connection with the ESOP Purchase (i) conflicts
with or violates any provision of the Company's certificate of incorporation,
by-laws or other corporate governance document, (ii) conflicts with or violates
any law, statute, rule, regulation or governmental requirement or any court or
administrative judgment, order, injunction, writ, directive or decree, or (iii)
conflicts with, results in a breach of or constitutes a default under any note,
bond, indenture, mortgage, deed of trust, license, lease, contract, agreement,
understanding, arrangement, commitment, instrument or other writing to which the
Company is a party or by which the Company is subject or bound.
2.03. No Third Party Consents. No consent, approval, authorization,
clearance or waiver of or any filing with or notice to any third party or any
government agency or authority is required for the execution, delivery and
performance of this Agreement, the consummation of the Company Purchase by the
Company or any action taken by the Company in connection with the ESOP Purchase.
No approval of this Agreement or the ESOP Stock Purchase Agreement or the
Company Purchase, the ESOP Purchase or any of the transactions contemplated
hereby or thereby is required to be obtained from the stockholders of the
Company.
2.04. No Litigation or Pending Proceedings . (a) There are no claims,
actions, suits, proceedings, arbitrations, mediations or investigations pending
or, to the Company's knowledge, threatened in any court or before any government
agency or authority, arbitration panel, mediator or otherwise (nor has any event
occurred or circumstance arisen that may give rise to or serve as a basis for
any claim, action, suit, proceeding, litigation, arbitration, mediation or
investigation) against, by or affecting the Company that may impact the
consummation of the Company Purchase or the ESOP Purchase.
(b) The Company is not (i) subject to any outstanding judgment, order,
writ, injunction, directive or decree of any court, arbitration panel or
governmental agency or authority, (ii) presently charged with or under
governmental investigation with respect to any actual or alleged violations of
any law, statute, rule, regulation or other governmental requirement, or (iii)
the subject of any pending or threatened proceeding by any government regulatory
agency or authority having jurisdiction over its business, properties or
operations, which may impact any of the Shares or the consummation of the
Company Purchase or the ESOP Purchase.
2.05. Broker's, Finder's and Other Fees. No agent, broker, investment
banker, consultant, representative or other person acting on behalf of the
Company or under the authority of the Company is or shall be entitled to any
commission, broker's or finder's fee or any other form of compensation or
payment from the Company relating to this Agreement or the Company Purchase,
other than the Transaction Fee and other than the attorneys, accountants and tax
or financial advisors of the Company in connection with this Agreement and the
Company Purchase.
2.06. Bring-Down of Representations and Warranties. All representations and
warranties of the Company set forth in this Agreement shall be true, accurate
and complete, and shall be deemed made again, on and as of the Effective Time.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER
The Selling Shareholder hereby represents and warrants to the Company as
follows:
3.01. Organization. The Selling Shareholder is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.02. Authority; No Violations. (a) The Selling Shareholder has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder subject to the fulfillment of the conditions
precedent set forth in Section 5.02 hereof. This Agreement and its execution and
delivery by the Selling Shareholder have been duly authorized and approved by
the Board of Directors or other appropriate committee of the Selling Shareholder
and no other authorizations or approvals by the Selling Shareholder or any
parent or affiliate of the Selling Shareholder are required for the Selling
Shareholder to execute and deliver this Agreement and to consummate the Company
Purchase. Subject to the fulfillment of the conditions precedent set forth in
Section 5.02 hereof, this Agreement constitutes a valid and binding obligation
of the Selling Shareholder, enforceable in accordance with its terms, except to
the extent limited by general principles of equity, by public policy and by
bankruptcy, insolvency, reorganization, liquidation, moratorium, readjustment of
debt or other laws of general application relating to or affecting the
enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor the consummation of the
Company Purchase by the Selling Shareholder (with or without notice or lapse of
time) (i) conflicts with or violates any provision of the Selling Shareholder's
certificate of incorporation, by-laws or other corporate governance document,
(ii) conflicts with or violates any law, statute, rule, regulation or
governmental requirement or any court or administrative judgment, order,
injunction, writ, directive or decree, (iii) conflicts with, results in a breach
of or constitutes a default under any note, bond, indenture, mortgage, deed of
trust, license, lease, contract, agreement, understanding, arrangement,
commitment, instrument or other writing to which the Selling Shareholder is a
party or by which the Selling Shareholder is subject or bound, (iv) gives any
person, proprietorship, partnership, limited liability company, corporation
(other than the Company), other entity or third party the right to acquire any
of the Shares or any interest in any of the Shares, or (v) results in any lien,
pledge, security interest, charge, claim, option, right of first refusal, right
of conversion, exchange or purchase, or adverse claim or right being placed upon
or relating to any of the Shares.
3.03. Ownership. The Selling Shareholder is the sole lawful owner of
record, and together with its affiliates beneficially, of the Shares. The Shares
are free and clear of any and all liens, pledges, security interests, charges,
claims, options, rights of first refusal, rights of conversion, exchange or
purchase, and adverse claims or rights. The Selling Shareholder is not a party
to or bound by any buy-sell or other agreement, understanding or commitment with
respect to any of the Shares, other than this Agreement and the ESOP Stock
Purchase Agreement.
3.04. No Third Party Consents. No consent, approval, authorization,
clearance or waiver of or any filing with or notice to any third party or any
government agency or authority not already obtained is required for the
execution, delivery and performance of this Agreement or the consummation of the
Company Purchase by the Selling Shareholder. No approval not already obtained of
this Agreement or the ESOP Stock Purchase Agreement or the Company Purchase, the
ESOP Purchase or any of the transactions contemplated hereby or thereby is
required to be obtained from the stockholders or any parent or affiliate of the
Selling Shareholder.
3.05. No Litigation or Pending Proceedings . (a) There are no claims,
actions, suits, proceedings, arbitrations, mediations or investigations pending
or, to the Selling Shareholder's knowledge, threatened in any court or before
any government agency or authority, arbitration panel, mediator or otherwise
(nor has any event occurred or circumstance arisen that may give rise to or
serve as a basis for any claim, action, suit, proceeding, litigation,
arbitration, mediation or investigation) against, by or affecting the Selling
Shareholder that may impact any of the Shares or the consummation of the Company
Purchase or the ESOP Purchase.
(b) The Selling Shareholder is not (i) subject to any outstanding judgment,
order, writ, injunction, directive or decree of any court, arbitration panel or
governmental agency or authority, (ii) presently charged with or under
governmental investigation with respect to any actual or alleged violations of
any law, statute, rule, regulation or other governmental requirement, or (iii)
the subject of any pending or threatened proceeding by any government regulatory
agency or
authority having jurisdiction over its business, properties or operations, which
may impact any of the Shares or the consummation of the Company Purchase or the
ESOP Purchase.
3.06. Broker's, Finder's and Other Fees. No agent, broker, investment
banker, consultant, representative or other person acting on behalf of the
Selling Shareholder or under the authority of the Selling Shareholder is or
shall be entitled to any commission, broker's or finder's fee or any other form
of compensation or payment from the Selling Shareholder relating to this
Agreement or the Company Purchase other than the Transaction Fee and other than
the attorneys, accountants and tax or financial advisors of the Selling
Shareholder in connection with this Agreement and the Company Purchase.
3.07. Bring-Down of Representations and Warranties. All representations and
warranties of the Selling Shareholder set forth in this Agreement shall be true,
accurate and complete, and shall be deemed made again, on and as of the
Effective Time.
SECTION 4
COVENANTS
4.01. Covenants of the Company.
(a) Between the date hereof and the Closing Date, subject to commercial
reasonableness, the Company shall not take any action that would result in or
fail to take any action that would prevent, and shall not permit its directors,
employees, affiliates or agents to take any action that would result in or fail
to take any action that would prevent, a breach of any representation, warranty
or covenant of the Company set forth in this Agreement.
(b) The Company shall pay the reasonable fees and expenses of the Selling
Shareholder's legal counsel in connection with this Agreement, the ESOP Stock
Purchase Agreement, the Company Purchase and the ESOP Purchase, up to One
Hundred Thousand Dollars ($100,000) in the aggregate.
(c) Any and all Taxes (as hereinafter defined) incurred by the Company by
virtue of or relating to the Company Purchase and the ESOP Purchase shall be
paid by the Company and, in addition, the Company shall pay the Taxes as set
forth in Exhibit B attached hereto.
4.02. Covenants of the Selling Shareholder.
(a) Between the date hereof and the Closing Date, subject to commercial
reasonableness, the Selling Shareholder shall not take any action that would
result in or fail to take any action that would prevent, and shall not permit
its directors, employees, affiliates or agents to take any action that would
result in or fail to take any action that would prevent, a breach of any
representation, warranty or covenant of the Selling Shareholder set forth in
this Agreement.
(b) Any and all Taxes (as hereinafter defined) incurred by the Selling
Shareholder by virtue of or relating to the Company Purchase or the ESOP
Purchase shall be paid by the Selling Shareholder, except as set forth in
Exhibit B attached hereto.
4.03. Definition of "Taxes". For purposes of this Agreement, the term
"Taxes" shall mean any and all federal, state, county, local, foreign or other
income, gross receipts, capital gain, franchise, excise, withholding, personal
property, transfer, value added, alternative or add-on minimum and other taxes,
assessments, fees and charges (whether known, unknown, absolute, fixed, matured,
unmatured, contingent or otherwise and whether due or to become due), including,
without limitation, any and all interest, penalties and additions to tax in
respect of the foregoing, whether or not disputed, and any liability or
obligation to indemnify, assume or succeed to any of the foregoing.
SECTION 5
CONDITIONS PRECEDENT TO CLOSING
5.01. The Company . The obligation of the Company to consummate the Company
Purchase is subject to the satisfaction and fulfillment of each of the following
conditions at or prior to the Closing unless waived in writing by the Company:
(a) Delivery of Stock Certificates. The Selling Shareholder shall have
delivered to the Company the certificate or certificates representing the
Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in
blank, in proper form for transfer and dated as of the Closing Date.
(b) Corporate Action of Selling Shareholder. The Board of Directors or
other appropriate committee of the Selling Shareholder shall have authorized and
approved this Agreement, the ESOP Stock Purchase Agreement, the Company Purchase
and the ESOP Purchase, and the Selling Shareholder shall have taken all other
corporate action necessary for the Selling Shareholder to consummate the Company
Purchase and the ESOP Purchase.
(c) Representations and Warranties of the Selling Shareholder . Each of the
representations and warranties of the Selling Shareholder set forth in this
Agreement shall be true, accurate and complete at and as of the Effective Time.
(d) Compliance with Covenants. The Selling Shareholder shall
have complied with all of its covenants and agreements set forth in Section 4.02
of this Agreement.
(e) No Lawsuits or Proceedings . No action, suit or proceeding
before any court or governmental or regulatory authority shall be
pending against the Company, the Selling Shareholder or any of their respective
directors or officers seeking to restrain, prevent, limit or change the Company
Purchase, the ESOP Purchase or the related transactions contemplated hereby or
by the ESOP Stock Purchase Agreement or questioning the legality or validity of
any such transactions or seeking damages in connection with any such
transactions.
(f) Officer's Certificate. The Selling Shareholder shall
have delivered to the Company a certificate of the Selling Shareholder's Vice
President certifying that the conditions set forth in Sections 5.01(a), (b),
(c), (d) and (e) hereof have been satisfied and fulfilled.
(g) Opinion of Counsel . The Company shall have received from Dechert,
counsel to the Selling Shareholder, an opinion, dated as of the Closing Date, in
form and substance substantially as set forth in Exhibit C attached hereto.
(h) Fairness Opinion. The Company shall have received an opinion with
respect to the Company Purchase and the ESOP Purchase from Xxxxxxxx Xxxxx Xxxxxx
& Xxxxx Financial Advisors, Inc., financial advisor to the Company, in form and
substance reasonably satisfactory to the Board of Directors of the Company.
(i) Bank Financing. The Company and its lenders shall have executed a
credit agreement providing for a $75,000,000 credit facility on terms and
conditions reasonably satisfactory to the Company.
(j) ESOP Purchase. The ESOP Purchase shall have been consummated
concurrently with the consummation of the Company Purchase.
(k) Resignation. M. Xxxxxx Xxxxxxxx shall have resigned from the Board of
Directors of the Company, effective immediately following the Effective Time.
(l) Corporate Action of the Company. The Company's Board of Directors shall
have authorized and approved this Agreement, the ESOP Stock Purchase Agreement,
the Company Purchase and the ESOP Purchase, and the Company shall have taken all
other corporate action necessary for the Company to consummate the Company
Purchase and the ESOP Purchase.
5.02. The Selling Shareholder. The obligation of the Selling Shareholder to
consummate the Company Purchase is subject to the satisfaction and fulfillment
of each of the following conditions at or prior to the Closing, unless waived in
writing by the Selling Shareholder:
(a) Payment of Purchase Price and Transaction Fee. The Company shall have
paid the Purchase Price and the Transaction Fee in accordance with Sections 1.03
and 1.04 hereof.
(b) Corporate Action . The Company's Board of Directors shall have
authorized and approved this Agreement, the ESOP Stock Purchase Agreement, the
Company Purchase and the ESOP Purchase, and the Company shall have taken all
other corporate action necessary for the Company to consummate the Company
Purchase and the ESOP Purchase.
(c) Representations and Warranties of the Company . Each of the
representations and warranties of the Company set forth in this Agreement shall
be true, accurate and complete at and as of the Effective Time.
(d) Compliance with Covenants. The Company shall have complied with all of
its covenants and agreements set forth in Section 4.01 of this Agreement.
(e) No Lawsuits or Proceedings. No action, suit or proceeding before any
court or governmental or regulatory authority shall be pending against the
Company, the Selling Shareholder or any of their respective directors or
officers seeking to restrain, prevent, limit or change the Company Purchase, the
ESOP Purchase or the related transactions contemplated hereby or by the ESOP
Stock Purchase Agreement or questioning the legality or validity of any such
transactions or seeking damages in connection with any such transactions.
(f) Officer's Certificate. The Company shall have delivered to the Selling
Shareholder a certificate of the Company's President certifying that (i) the
conditions set forth in Sections 5.02(a), (b), (c), (d) and (e) hereof have been
satisfied and fulfilled, and (ii) attached thereto are copies of the resolutions
duly adopted by the Board of Directors of, and evidence of all other corporate
action taken by, the Company authorizing and approving this Agreement, the
Company Purchase and the ESOP Purchase.
(g) Opinion of Counsel . The Selling Shareholder shall have received from
Xxxxx XxXxxxx LLP, counsel to the Company, an opinion, dated as of the Closing
Date, in form and substance substantially as set forth in Exhibit D attached
hereto.
(h) ESOP Purchase. The ESOP Purchase shall have been consummated
concurrently with the consummation of the Company Purchase.
SECTION 6
TERMINATION OF AGREEMENT
6.01. Manner of Termination. This Agreement may be terminated and the
Company Purchase abandoned at any time prior to the Effective Time by written
notice delivered in accordance with Section 8.02 hereof, as follows:
(a) By either the Company or the Selling Shareholder, if:
(i) the Company Purchase contemplated by this Agreement has not been
consummated on or before March 15, 2002; or
(ii)the Selling Shareholder and the Board of Directors of the
Company mutually agree in writing to terminate this Agreement.
(b) By the Company, if:
(i) there has been a material misrepresentation or a material breach
of any warranty by or on the part of the Selling Shareholder in
its representations and warranties set forth in this Agreement;
or
(ii)there has been a material breach of or a material failure to
comply with any covenant set forth in this Agreement by or on
the part of the Selling Shareholder.
(c) By the Selling Shareholder, if:
(i) there has been a material misrepresentation or a material breach
of any warranty by or on the part of the Company in its
representations and warranties set forth in this Agreement; or
(ii)there has been a material breach of or material failure to
comply with any covenant set forth in this Agreement by or on
the part of the Company.
6.02. Effect of Termination. Upon termination of this Agreement in
accordance with Section 6.01 hereof, this Agreement shall be of no further force
or effect (except that Sections 4.01(b), 8.10 and 8.12 hereof shall survive any
such termination) and the Company Purchase shall be deemed to be abandoned, and
there shall be no obligation of or liability to any party hereto, or their
respective shareholders, affiliates, directors, officers, employees,
representatives or agents; provided, however, that if such termination was the
result of an intentional breach of any representation, warranty or covenant in
this Agreement, or an intentional act or omission which resulted in any
representation, warranty or covenant in this Agreement to be breached, then the
party who committed the intentional breach, act or omission shall be liable to
the other party hereto for all out-of-pocket costs and expenses (but no damages)
incurred by the other party in connection with the Company Purchase and the ESOP
Purchase, including, without limitation, reasonable attorneys' fees and expenses
and the fees and expenses of the financial advisor for the Company, the trustee
of the ESOP, the financial advisor for the ESOP and legal counsel for the ESOP;
and provided further, however, that notwithstanding anything contained herein to
the contrary, the Company shall in all cases be liable for the fees and expenses
of the Selling Shareholder's legal counsel pursuant to Section 4.01(b) hereof.
SECTION 7
INDEMNIFICATION
7.01. Indemnification by the Company. The Company hereby agrees to
reimburse, indemnify, defend and hold harmless the Selling Shareholder for, from
and against each and every Loss (as hereinafter defined) incurred by the Selling
Shareholder based upon, arising out of or relating to (a) any inaccuracy in or
breach of any representation or warranty of the Company set forth in this
Agreement or in any of the certificates or other documents delivered to the
Selling Shareholder in connection with the Closing, (b) any breach of any
covenant of the Company set forth in this Agreement, (c) the Company Purchase
and the ESOP Purchase, and (d) the enforcement of this Section 7.01 against the
Company; provided, however, that in no event shall the Company reimburse,
indemnify, defend or hold harmless, or be liable to, the Selling Shareholder or
any direct or indirect parent, subsidiary, affiliate, successor or assign of the
Selling Shareholder for or in connection with any Loss caused by or relating to
(i) any Taxes incurred by the Selling Shareholder by virtue of or relating to
the Company Purchase and the ESOP Purchase, except as set forth in Exhibit B
attached hereto, (ii) any breach of any of the Selling Shareholder's
representations, warranties or covenants set forth in this Agreement or any
other breach by the Selling Shareholder of this Agreement, or (iii) any fraud or
willful misconduct of the Selling Shareholder.
7.02. Indemnification by the Selling Shareholder. The Selling Shareholder
hereby agrees to reimburse, indemnify, defend and hold harmless the Company for,
from and against each and every Loss (as hereinafter defined) incurred by the
Company based upon, arising out of or relating to (a) any inaccuracy in or
breach of any representation or warranty of the Selling Shareholder set forth in
this Agreement or in any of the certificates or other documents delivered to the
Company in connection with the Closing, (b) any breach of any covenant of the
Selling Shareholder set forth in this Agreement, and (c) the enforcement of this
Section 7.02 against the Selling Shareholder; provided, however, that in no
event shall the Selling Shareholder reimburse, indemnify, defend or hold
harmless, or be liable to, the Company or any direct or indirect parent,
subsidiary, affiliate, successor or assignee of the Company for or in connection
with any Loss caused by or relating to (i) any Taxes incurred by the Company by
virtue of or relating to the Company Purchase or the ESOP Purchase, (ii) any
breach of any of the Company's representations, warranties or covenants set
forth in this Agreement or any other breach by the Company of this Agreement, or
(iii) any fraud or willful misconduct of the Company.
7.03. Notice and Opportunity to Defend Certain Claims. Promptly after (a)
receipt by any party hereto of notice of the assertion of any action or claim
against such party, or (b) the discovery by any party hereto of any Loss giving
rise to indemnification hereunder, in each case with respect to which such party
is entitled to indemnification hereunder, such party (the "Indemnified Party")
shall give the party that may become obligated to provide indemnification
hereunder (the "Indemnifying Party") written notice describing such action,
claim or Loss in reasonable detail (an "Indemnification Notice"). If the
Indemnified Party fails to give the Indemnification Notice in a timely manner
and the Indemnifying Party is materially prejudiced in its defense by such
failure, then the Indemnifying Party's liability with respect to such action,
claim or Loss shall be reduced to the extent of such prejudice. Except as
otherwise provided in this Section 7.03, the Indemnifying Party shall have the
right, at its option, to defend, at its own
expense and through counsel of its own choosing, and to control the defense of
any such action or claim against the Indemnified Party; provided, however, that
such counsel shall be reasonably satisfactory to the Indemnified Party. If
counsel satisfactory to the Indemnified Party is not selected by the
Indemnifying Party within thirty (30) days of any Indemnification Notice, then
the Indemnified Party may select counsel to defend any such action or claim and,
in such event, the Indemnifying Party shall be responsible for and pay all
reasonable attorneys' fees, costs and expenses of such counsel, and the
Indemnifying Party shall no longer be entitled to select counsel with respect to
or control the defense of such action or claim. If the Indemnifying Party
intends to undertake to defend an action or claim against an Indemnified Party,
then the Indemnifying Party shall give a written notice (a "Defense Election
Notice") to the Indemnified Party of its intention to do so within thirty (30)
days of the Indemnification Notice to which such action or claim relates.
Whether or not the Indemnifying Party chooses to so defend such action or
claim, the parties hereto shall cooperate in the defense thereof and shall
furnish such records, information and testimony, attend such settlement or other
conferences, discovery proceedings, mediations, hearings, trials and appeals and
respond to such discovery and other requests as may be reasonably requested in
connection therewith. The Indemnified Party shall not compromise or settle any
action, claim or Loss as to which indemnification hereunder is sought without
the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld. The Indemnifying Party shall not compromise or settle any
action, claim or Loss as to which indemnification hereunder is sought without
the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld. Notwithstanding an election by the Indemnifying Party to
assume the defense of any action or claim, the Indemnified Party shall have the
right to employ separate counsel and to participate in, but not control, the
defense of such action or claim at the sole cost of the Indemnified Party.
Notwithstanding anything contained herein to the contrary, the Indemnified
Party shall have the right to employ its own counsel in any action or claim, to
control the defense of such action or claim and to require the Indemnifying
Party to pay all reasonable fees and expenses of such counsel, if (a) the use of
counsel chosen by the Indemnifying Party to represent the Indemnified Party
would result in a conflict of interest for such counsel in the representation of
the Indemnified Party, (b) the Indemnified Party shall not have assumed the
defense of the action or claim and employed counsel reasonably satisfactory to
the Indemnified Party within the time limits set forth herein, or (c) the
Indemnifying Party shall authorize in writing the Indemnified Party to employ
separate counsel at the Indemnifying Party's expense.
7.04. Definition of "Loss". As used in this Section 7, the term "Loss"
shall mean any and all actual or threatened losses, claims, demands, damages,
awards, liabilities, obligations, judgments, settlements, fines, penalties,
interest, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses).
7.05. Duration. Any claim for indemnification hereunder shall be made
within two (2) years following the Closing Date. Once a claim for
indemnification hereunder has been timely made, the indemnification obligation
of the Company or the Selling Shareholder, as the case may
be, shall remain in full force and effect and binding upon it until such claim
has been paid in full or settled with the prior written consent of the
Indemnified Party, notwithstanding that such two (2) year period has expired.
SECTION 8
MISCELLANEOUS
8.01. Survival. All representations and warranties of the Company and the
Selling Shareholder, respectively, set forth in this Agreement shall survive the
Closing for a period of two (2) years following the Closing Date. The covenants
of the Company set forth in Sections 4.01(b) and 4.01(c) hereof, and the
covenant of the Selling Shareholder set forth in Section 4.02(b) hereof, shall
survive the Closing and remain in full force and effect and binding upon the
Company and the Selling Shareholder, respectively, indefinitely.
8.02. Notices . All notices, requests and other communications hereunder
shall be in writing (which shall include fax communication) and shall be deemed
to have been duly given if (a) delivered by hand, (b) delivered by certified
United States Mail, return receipt requested, first class postage pre-paid, (c)
delivered by overnight receipted delivery service, or (d) faxed if confirmed
thereafter by also mailing a copy of such notice, request or other communication
by regular United States Mail, first class postage pre-paid on the next business
day, as follows:
If to the Company: with a copy to (which shall not
constitute notice):
CHROMCRAFT REVINGTON, INC. XXXXX XXXXXXX LLP
0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxx 00000
ATTN: Xxxxx X. Xxxx, Vice President ATTN: Xxxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to the Selling Shareholder: with a copy to (which shall not
constitute notice):
COURT SQUARE CAPITAL LIMITED DECHERT
000 Xxxx Xxxxxx 0000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxx Xxxxxx
ATTN: Xxxxxxx X. Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Vice President ATTN: Xxxxxxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
or such substituted address or person as any party has given to the other
parties in writing.
All such notices, requests and other communications shall be effective (a)
if delivered by hand, when delivered, (b) if mailed in the manner provided
herein, two (2) business days after deposit with the United States Postal
Service, (c) if delivered by overnight receipted delivery service, on the next
business day after deposit with such service, and (d) if by fax, on the day the
fax is completed as shown on the written fax confirmation.
8.03. Binding Effect; Assignment . This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that no party hereto may assign this Agreement
without the prior written consent of the other party.
8.04. Benefits . Nothing in this Agreement, express or implied, is intended
to confer upon any person or entity other than the parties hereto and their
respective permitted successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
8.05. Amendment. This Agreement may be amended, modified or supplemented
only by a written agreement executed by the parties hereto.
8.06. Waiver . Any party hereto may waive, in writing, the performance by
the other party of any of the covenants or agreements to be performed by such
other party under this Agreement or any breach or noncompliance under this
Agreement by such other party. Any such waiver shall not operate or be construed
as a continuing waiver or a waiver of any other or subsequent nonperformance,
breach or noncompliance hereunder. No failure or delay in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right or remedy hereunder or otherwise.
8.07. Headings. The headings in this Agreement have been inserted solely
for ease of reference and should not be considered in the interpretation or
construction of this Agreement.
8.08. Severability . In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision or provisions had never been
contained herein.
8.09. Counterparts . This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
8.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice or conflict of law provisions, principles or rules (whether of the State
of Delaware or any other jurisdiction) that would cause the application of any
laws of any jurisdiction other than the State of Delaware.
8.11. Entire Agreement . This Agreement supersedes all other prior
understandings, commitments, representations, negotiations and agreements,
whether oral or written, between the parties hereto relating to the matters
contemplated hereby and constitutes the entire agreement between the parties
hereto relating to the subject matter hereof. The parties hereto agree that the
proposal letter dated January 10, 2002 from the Company and accepted by the
Selling Shareholder shall be terminated and be of no further force or effect as
of the Closing Date.
8.12. Expenses. Each party hereto shall pay its own respective costs and
expenses related to this Agreement and the Company Purchase, except as
contemplated by Sections 4.01(b) and 6.02 hereof.
8.13. Certain References . Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. All references to the masculine, feminine or neuter genders shall
include any other gender, as the context requires.
8.14. Construction. This Agreement is the product of negotiation by the
parties hereto and shall be deemed to have been drafted by the parties hereto.
This Agreement shall be construed in accordance with the fair meaning of its
provisions and its language shall not be strictly construed against, nor shall
ambiguities be resolved against, any party.
8.15. Facsimile Delivery. This Agreement, once executed by any party
hereto, may be delivered to the other party by facsimile transmission.
8.16. Recitals. The recitals, premises and "Whereas" clauses contained on
page 1 of this Agreement are expressly incorporated into and made a part of this
Agreement.
* * * *
IN WITNESS WHEREOF, the Company and the Selling Shareholder have made,
entered into and executed this Agreement as of the day and year first above
written.
CHROMCRAFT REVINGTON, INC.
By:/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
President
COURT SQUARE CAPITAL LIMITED
By:/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IM-383248-5
EXHIBIT A
TO
STOCK PURCHASE AGREEMENT
BETWEEN CHROMCRAFT REVINGTON, INC.
AND COURT SQUARE CAPITAL LIMITED
Payment of Transaction Fee
The Transaction Fee shall be paid as follows:
Court Square Capital Limited $1.8 million
M. Xxxxxx Xxxxxxxx (designee) 1.0 million
-----------
Total $2.8 million
IM-383248-5
EXHIBIT B
TO
STOCK PURCHASE AGREEMENT
BETWEEN CHROMCRAFT REVINGTON, INC.
AND COURT SQUARE CAPITAL LIMITED
All excise taxes, if any, incurred by the Selling Shareholder under Section
4975 of the Internal Revenue Code of 1986, as amended, by virtue of or relating
to the ESOP Purchase shall be paid by the Company. The Selling Shareholder shall
(a) promptly notify the Company in writing of all communications from the
Internal Revenue Service (the "IRS") with respect to any such excise tax, and
(b) allow the Company to participate in all discussions with the IRS relating to
such excise tax and to defend any action or claim with respect to such excise
tax by the IRS in accordance with Section 7.03 of the Agreement. The Selling
Shareholder, at the Company's cost and expense, shall cooperate with the Company
and provide such documents and information as the Company may reasonably request
in connection with any such discussions, action or claim by the IRS.
All capitalized terms used but not otherwise defined in this Exhibit B
shall have the same meanings ascribed to them in the Agreement.
* * *
IM-383248-5
EXHIBIT C
TO
STOCK PURCHASE AGREEMENT
BETWEEN CHROMCRAFT REVINGTON, INC.
AND COURT SQUARE CAPITAL LIMITED
Form of Opinion of Counsel to Selling Shareholder
1. The Selling Shareholder is a validly existing corporation in good
standing under the laws of the State of Delaware.
2. The Selling Shareholder has the requisite corporate power and
corporate authority to enter into the Agreement and to carry out its
obligations thereunder. The Agreement has been duly authorized,
executed and delivered by, and constitutes the valid and binding
obligation of, the Selling Shareholder. The Agreement is enforceable
against the Selling Shareholder in accordance with its terms except as
such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws affecting creditors' rights generally from time to time in effect
and by general principles of equity (regardless of whether considered
in a proceeding at law or in equity).
3. The execution and delivery by the Selling Shareholder of the Agreement
does not, and the consummation of the Company Purchase will not,
violate (a) any provision of the Delaware General Corporation Law or
(b) the Certificate of Incorporation or By-Laws of the Selling
Shareholder.
4. Upon delivery of the Shares to you pursuant to the terms of the
Agreement, you will be a "protected purchaser" of the Shares within
the meaning of Section 8-303 of the [Delaware] Uniform Commercial
Code, provided that you do not have notice of any adverse claim
thereto.
It is understood that counsel to the Selling Shareholder may assume for the
purpose of its opinion that Delaware law is the same as New York law.
IM-383248-5
EXHIBIT D
TO
STOCK PURCHASE AGREEMENT
BETWEEN CHROMCRAFT REVINGTON, INC.
AND COURT SQUARE CAPITAL LIMITED
Form of Opinion of Counsel to the Company
1. The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware.
2. The Company has the requisite corporate power and authority to enter
into the Agreement and to carry out its obligations thereunder. The
Agreement and its execution, delivery and performance by the Company
have been duly authorized and approved by the Board of Directors and
all other necessary corporate action of the Company. The Agreement is
enforceable against the Company.
3. Neither the execution or delivery of the Agreement nor the
consummation of the Company Stock Transaction by the Company (a)
conflicts with or violates any provision of the Company's Certificate
of Incorporation or By-Laws, or (b) conflicts with or violates any
provision of the Delaware General Corporation Law
It is understood that counsel to the Company may assume for the purpose
of its opinion that Delaware law is the same as Indiana law.
IM-383248-5w
