EXHIBIT A
STOCK PURCHASE AGREEMENT
BY AND AMONG
YORK INSURANCE HOLDINGS, INC.,
YORK INSURANCE ACQUISITION, INC.
AND
BEXIL CORPORATION
DATED AS OF DECEMBER 23, 2005
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of December 23,
2005 by and among York Insurance Holdings, Inc., a Delaware corporation
("Parent"), York Insurance Acquisition, Inc., a Delaware corporation ("Buyer"
and together with Parent, "Buyer Parties"), and Bexil Corporation, a Maryland
corporation (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller holds 500 common shares (the "Bexil Shares") of York
Insurance Services Group, Inc., a Delaware corporation ("York"), which common
shares constitute fifty percent of the outstanding Equity Securities of York,
and subject to the terms hereof, desires to sell all such Bexil Shares to Buyer
(the "Bexil Sale");
WHEREAS, Xxxxxx XxxXxxxxx, an individual ("MacArthur"), holds 500 common
shares (the "MacArthur Shares") of York, which common shares constitute fifty
percent of the outstanding Equity Securities of York, and pursuant to the terms
and conditions of a stock purchase agreement among Buyer Parties and MacArthur
executed simultaneously with the execution of this Agreement (the "MacArthur
Purchase Agreement"), desires to (i) sell a portion of the MacArthur Shares to
Buyer (the "MacArthur Sale") and (ii) contribute a portion of the MacArthur
Shares (the "MacArthur Contribution Shares") to Parent (the "MacArthur
Contribution" and, together with the MacArthur Sale, the "MacArthur
Transactions" and, together with the Bexil Sale, the "Transactions");
WHEREAS, the board of directors of the Seller (the "Board of Directors"),
based upon the recommendation of a special committee of the Board of Directors
(the "Special Committee") which, among other things, evaluated the fairness of
the transactions contemplated hereby, has determined that this Agreement and the
Bexil Sale are advisable, fair to and in the best interests of the Seller and
its stockholders, has recommended that its stockholders approve this Agreement
and the Bexil Sale contemplated hereby and has directed that the Bexil Sale and
this Agreement be submitted for consideration at a special meeting of
stockholders ("Bexil Stockholders Meeting");
WHEREAS, as a condition to Buyer Parties' willingness to enter into this
Agreement, simultaneously with the execution of this Agreement, Parent and
certain stockholders of the Seller are entering into a Voting Agreement pursuant
to which they have agreed to take certain actions in support of this Agreement;
and
WHEREAS, capitalized terms used and not otherwise defined herein shall have
the meanings set forth in Article VIII hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants, agreements, terms and conditions
contained herein, the parties hereto do hereby agree as follows:
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ARTICLE I
SALE; CLOSING
1.1 Sale of the Equity Securities.
Upon the terms and subject to the conditions contained herein, on the Closing
Date, the Seller shall sell, assign, transfer, convey and deliver to Buyer, and
Buyer shall purchase from the Seller, all of the Bexil Shares free and clear of
all Encumbrances.
1.2 Purchase Price for the Equity Securities.
Upon the terms and subject to the conditions contained herein, as consideration
for the acquisition of all of the Bexil Shares, Buyer Parties shall pay to the
Seller an amount in cash equal to $38,864,121 less the aggregate amount of
Stockholder Distributions received by the Seller after the date hereof (the
"Purchase Price"). The Purchase Price will be paid by wire transfer of
immediately available United States federal funds to, or for the account of, the
Seller in accordance with written instructions provided by the Seller not less
than three business days prior to the Closing Date.
1.3 Closing Costs; Transfer Taxes and Fees.
The Seller shall be responsible for any documentary and transfer Taxes and any
sales, use or other Taxes imposed by reason of the transfers of the Bexil Shares
provided hereunder and any deficiency, interest or penalty asserted with respect
thereto and shall timely file all Tax Returns with respect to such transfer
Taxes.
1.4 The Closing.
The Closing of the transactions provided for in this Agreement shall be held in
New York, New York at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx at 10:00 a.m. on the first business day following
satisfaction or waiver of the conditions set forth in Article VI (other than
those conditions that by their nature must be satisfied on the date of the
Closing) or at such other time and place as the parties may mutually agree (the
"Closing Date").
1.5 Conveyances and Deliveries at the Closing.
(a) Deliveries by the Seller. On the Closing Date, the Seller shall deliver or
cause to be delivered to Buyer Parties the following:
(i) stock certificates representing the Bexil Shares, duly endorsed in blank or
accompanied by duly executed stock transfer powers;
(ii) a termination agreement duly executed by the Seller, York and MacArthur
pursuant to which the Stockholders Agreement, dated as of January 18, 2002,
among the Seller, MacArthur and York (the "Existing Stockholders Agreement") is
terminated;
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(iii) an affidavit, stating, under penalty of perjury, as to non-foreign status
of the Seller as required by Section 1445(b)(2) of the Code and any clearance
certificate or similar document(s) that may be required by any state taxing
authority in order to relieve Buyer Parties of any obligation to withhold any
portion of the Purchase Price;
(iv) copies of the documents referred to in Section 6.1(c);
(v) all Approvals from third parties as are required in order for the Seller to
consummate the transactions contemplated hereby;
(vi) the certificates referred to in Section 6.1(f); and
(vii) such other documents and instruments as are required pursuant to this
Agreement or as may reasonably be requested by Buyer Parties or their counsel.
(b) Deliveries by Buyer Parties. On the Closing Date, Buyer Parties shall
deliver or cause to be delivered the following:
(i) resolutions adopted by the board of directors of each Buyer Party approving
this Agreement and the transactions contemplated hereby or thereby, certified by
each Buyer Party's corporate secretary;
(ii) all Approvals from third parties as are required in order for Buyer Parties
to consummate the transactions contemplated hereby;
(iii) the payment of the Purchase Price required by Section 1.2;
(iv) the certificates of Buyer Parties referred to in Section 6.2(e); and
(v) such other documents and instruments as are required pursuant to this
Agreement or as may reasonably be requested by the Seller or its counsel.
(c) Form of Documents. To the extent that a form of any document to be delivered
hereunder is not attached as an Exhibit hereto, such documents shall be in form
and substance, and shall be executed and delivered in a manner, reasonably and
mutually satisfactory to Buyer Parties and the Seller.
1.6 Withholding Rights.
Buyer Parties shall be entitled to deduct and withhold from the Purchase Price
and any other amounts otherwise payable pursuant to this Agreement such amounts
as Buyer Parties are required to deduct and withhold with respect to the making
of such payment under the Code or any provision of state, local or foreign Tax
Law. To the extent that amounts are so withheld by Buyer Parties, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the Person in respect of which such deduction and withholding was made. As of
the date of this Agreement, assuming Seller provides the materials specified in
Section 1.5(a)(iii) on the Closing Date, the parties hereto believe that Buyer
Parties are not required under the Code or any provision of state, local or
foreign Tax Law currently in effect to deduct or withhold any amounts with
respect to the making of the payment of the Purchase Price or any other amounts
otherwise payable to Seller pursuant to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BUYER PARTIES
Buyer Parties hereby represent and warrants to the Seller
as of the date hereof and as of the Closing Date as follows:
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2.1 Organization and Related Matters.
Each Buyer Parties is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Delaware. Buyer Parties each have all
necessary corporate power and authority to carry on its business as it is now
being conducted. Each Buyer Party has the necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
2.2 Authorization; Consents and Approvals.
The execution, delivery and performance of this Agreement and each other
agreement, document, instrument or certificate contemplated hereby or to be
executed in connection with the consummation of the transactions contemplated
hereby by each Buyer Party, andthe consummation by each Buyer Party of the
transactions contemplated hereby, have been duly and validly authorized by the
boards of directors of each Buyer Party and by all other necessary corporate
action on the part of Buyer Parties. This Agreement has been, and upon execution
thereof by each Buyer Party, shall be, duly and validly executed and delivered
by each Buyer Party and constitutes or will constitute the legal, valid and
binding obligation of each Buyer Party, enforceable against each Buyer Party in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar Laws now or
hereafter in effect and equitable principles relating to or limiting creditors'
rights and remedies generally. No filing or registration with, no notice to and
no permit, authorization, consent or approval of any third party or any
Governmental Entity is necessary for the consummation by any Buyer Party of the
transactions contemplated hereby that has not been obtained by such Buyer Party,
except for filings and registrations to be made pursuant to the HSR Act.
2.3 No Conflicts.
The execution, delivery and performance of this Agreement by each Buyer Party,
the consummation of the transactions contemplated hereby, and compliance with
the terms hereof will not conflict with, violate or result in the loss of any
benefit under the provisions of, or constitute a breach or default, whether upon
lapse of time and/or the occurrence of any act or event or otherwise, or require
any Approval under (a) the charter documents or by-laws of each Buyer Party, (b)
any Law to which any Buyer Party or its property or assets is subject or (c)
any Contract to which any Buyer Party is a party, except for filings and
registrations to be made pursuant to the HSR Act.
2.4 No Brokers or Finders.
No agent, broker, finder, financial advisor or investment or commercial banker,
or other Person or firm engaged by or acting on behalf of Buyer Parties or their
Affiliates or any of their partners, directors, officers, employees or agents
in connection with the negotiation, execution or performance of this Agreement
or the transactions contemplated by this Agreement, is or will be entitled to
any broker's or finder's or similar fees or other commissions as a result of
this Agreement or such transactions.
2.5 Legal Proceedings.
There is no Order or Action pending or, to the Knowledge of any Buyer Party,
threatened against any Buyer Party or any director, officer or employee of any
Buyer Party (in his or her capacity as such) that individually or when
aggregated with one or more other Orders or Actions has had or might reasonably
be expected to have a Material Adverse Effect on any Buyer Party's ability to
perform this Agreement.
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2.6 Operation of Buyer Parties.
Buyer Parties were formed solely for the purpose of engaging in the Transactions
contemplated by this Agreement and the MacArthur Purchase Agreement, have
engaged in no other business activities and have conducted their operations only
as contemplated in this Agreement and the MacArthur Purchase Agreement.
2.7 Investment Representations.
(a) Buyer Parties are acquiring the Bexil Shares for their own account for
investment and not with a view to the sale or distribution thereof or with any
present intention of selling or distributing any thereof. Buyer Parties
understand and acknowledge that the Bexil Shares are not registered under the
Securities Act of 1933, as amended (the "Securities Act"), and will not be
transferable except (i) pursuant to an effective registration statement under
the Securities Act or (ii) if the proposed transfer is exempt from registration
or qualification under the Securities Act and applicable state securities Laws.
(b) Buyer Parties understand that no public market now exists or may in the
future exist for any of the Bexil Shares.
(c) Buyer Parties have reviewed the business and affairs of York and its
Subsidiaries and has made a detailed inquiry concerning the business and
personnel thereof. Buyer Parties have sufficient knowledge and experience so
that they are capable of evaluating the risks and merits of their purchase of
the Bexil Shares and Buyer Parties are able to bear the loss of their entire
investment therein.
2.8 MacArthur Agreements.
Buyer Parties have not entered into any agreements or other arrangements with
MacArthur (or any of his Affiliates) pursuant to which MacArthur (or any of his
Affiliates) shall receive any compensation or other payments from Buyer Parties
or York other than (i) as set forth in an employment agreement, by and between
Parent and MacArthur, a copy of which has been delivered to the Seller on or
prior to the date of this Agreement, (ii) as set forth in a stockholders
agreement, by and among Parent, MacArthur and Odyssey Investment Partners Fund
III, LP a copy of which has been delivered to the Seller on or prior to the date
of this Agreement, and (iii) pursuant to a stock option agreement to be entered
into on or prior to the Closing by and between Parent and MacArthur to issue
MacArthur options to purchase such number of shares of Parent's common stock as
set forth on Exhibit F-2 to the MacArthur Purchase Agreement pursuant to a stock
option plan the terms and conditions of which are described on Exhibit F-1 to
the MacArthur Purchase Agreement (the agreements described in clauses (i), (ii)
and (iii) above, the "MacArthur Agreements"). Without the Seller's consent,
Buyer Parties shall not modify any of the MacArthur Agreements on or prior to
the Closing in a manner that would increase the compensation or other payments
to be made to MacArthur thereunder from the terms and conditions of the
MacArthur Agreements described in this Section 2.8.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to Buyer Parties as of the date
hereof and as of the Closing Date, except as to any representation or warranty
that specifically relates to another date or another period in which case such
representation or warranty shall relate to such other date or other period as
follows, and except as set forth in the Seller Disclosure Schedule:
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3.1 Organization, etc.
The Seller is a corporation duly organized, validly existing and in good
standing under the Laws of the State of Maryland. The Seller has all necessary
corporate power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted. True, correct and complete
copies of the charter documents and by-laws of the Seller as in effect on the
date hereof and on the Closing Date have been made available to Buyer Parties.
3.2 Authorization.
The Seller has all requisite power and authority to execute and deliver this
Agreement and each other agreement, document, instrument or certificate
contemplated hereby to be executed by the Seller in connection with the
consummation of the transactions contemplated hereby and such ancillary
documents, and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance of this Agreement and such ancillary
documents by the Seller and the consummation by the Seller of the transactions
contemplated hereby and thereby have been duly and validly authorized and
declared advisable by at least a majority of the members of the Board of
Directors based upon the recommendation of the Special Committee and, upon
receipt of the approval of the holders of at least a majority of the outstanding
shares of the Seller's common stock of this Agreement and the Bexil Sale
contemplated hereby, each voting as provided under the MGCL and in the charter
and by-laws of the Seller (such receipt of approval being the "Required Vote"),
the execution, delivery and performance of this Agreement and such ancillary
documents by the Seller and the consummation by the Seller of the transactions
contemplated hereby and thereby shall have been duly and validly authorized by
all necessary corporate action on the part of the Seller and the Seller's
stockholders. This Agreement has been, and such ancillary documents shall be,
duly executed and delivered by the Seller and constitutes or will constitute the
legal, valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
Laws and equitable principles relating to or limiting creditors' rights
generally.
3.3 No Conflicts.
Except as set forth in Section 3.3 of the Seller Disclosure Schedule, the
execution and delivery of this Agreement and each other agreement, document,
instrument or certificate contemplated hereby to be executed by the Seller in
connection with the consummation of the transactions contemplated hereby, the
consummation of the transactions contemplated hereby and thereby or compliance
by the Seller with any of the provisions hereof or thereof will not violate the
provisions of, or constitute a breach or default whether upon lapse of time
and/or the occurrence of any act or event or otherwise, or result in the
creation or vesting of any payment or other right of any Person, under (a) the
charter documents or by-laws of the Seller, (b) any Law or Order of any
Governmental Entity applicable to the Seller or by which any of the properties
or assets of the Seller are bound, except for filings and registrations to be
made pursuant to the HSR Act, or (c) any material Contract or Permit to which
the Seller is a party or by which any of the properties or assets of the Seller
are bound.
3.4 Ownership and Transfer of Bexil Shares.
The Seller is the record and beneficial owner of 500 Shares, free and clear of
any and all Encumbrances, except those Encumbrances arising under the Existing
Stockholders Agreement. The Seller has the power and authority to sell,
transfer, assign and deliver such Shares as provided in this Agreement, and such
delivery will convey to Buyer good and marketable title to such Shares, free and
clear of any and all Encumbrances. Other than the Existing Stockholders
Agreement, the Seller is not a party to any Contract with respect to any Equity
Securities of York or its Subsidiaries, including, but not limited to, any
Contract that could require the Seller to sell, transfer, or otherwise dispose
of any of its Shares other than pursuant to this Agreement.
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3.5 Consents, etc.
There are no Permits, Orders or Approvals of any Governmental Entity or any
other Person required to be obtained by the Seller in order to execute and
deliver this Agreement and consummate the transactions contemplated hereunder,
except for filings and registrations pursuant to the HSR Act. The Seller has
obtained all such Permits, Orders and Approvals necessary for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, except for filings and registrations pursuant to the HSR Act.
3.6 Disclosure Documents.
(a) The Proxy Statement and any Other Filings, and any amendments or supplements
thereto, when filed by the Seller with the SEC, or when distributed or otherwise
disseminated to the Seller's stockholders, as applicable, will comply as to form
in all material respects with the applicable requirements of the Exchange Act
and other applicable Laws.
(b) (A) The Proxy Statement, as supplemented or amended, if applicable, at the
time such Proxy Statement or any amendment or supplement thereto is first mailed
to stockholders of the Seller, at the time of the Required Vote, and at Closing
and (B) any Other Filings or any supplement or amendment thereto, at the time of
the filing thereof and at the time of any distribution or dissemination thereof,
in each case, will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties contained in this Section 3.6(b)
will not apply to statements or omissions included in the Proxy Statement or any
Other Filings based upon information furnished in writing to the Seller by Buyer
Parties specifically for use therein.
3.7 Litigation.
There is no Order or Action pending or, to the Knowledge of the Seller,
threatened that seeks to prohibit or restrain the ability of the Seller to enter
into this Agreement or consummate the transactions contemplated hereby.
3.8 Opinion of Financial Adviser.
The Special Committee of the Board of Directors has received the written opinion
of a financial advisor (the "Seller Financial Advisor"),, such written opinion
is to the effect that the consideration to be received by the Seller in the
Bexil Sale is fair from a financial point of view to the Seller and its
stockholders, and the Seller has delivered to Buyer Parties a true and complete
copy of such opinion.
3.9 No Brokers or Finders.
Except for Xxxxxxx Associates and the Seller Financial Advisor, no Person has
acted, directly or indirectly, as a broker, finder or financial advisor for the
Seller in connection with the transactions contemplated by this Agreement and no
Person is entitled to any fee or commission or like payment in respect thereof.
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3.10 Vote Required.
The Required Vote is the only vote of any class or series of stock or other
Equity Securities of the Seller that is necessary to approve the Bexil Sale and
this Agreement.
ARTICLE IV
COVENANTS AND AGREEMENTS OF THE PARTIES
4.1 Expenses
(a) Subject to the provisions of Section 1.3, the Seller shall pay all of its
Expenses. The Seller shall pay one quarter of the aggregate of any HSR Act
filing fees paid with respect to the transactions contemplated hereby and by the
MacArthur Purchase Agreement.
(b) Subject to the provisions of Section 1.3, Buyer Parties shall pay all of the
Expenses incurred by Buyer Parties and their Affiliates. In addition, Buyer
Parties shall pay one half of the aggregate of any HSR Act filing fees paid with
respect to the transactions contemplated hereby and by the MacArthur Purchase
Agreement.
4.2 Publicity.
(a) No party hereto shall issue any press release or other public statement with
respect to the existence of this Agreement or the transactions contemplated
hereby, except as such party's counsel advises may be required by, or advisable
under, Law (if so required or advisable, such press release or public statement
shall be made only after consultation among the parties hereto), or as consented
to by the parties.
(b) Each party hereto agrees that the terms of this Agreement shall not be
disclosed or otherwise made available to the public and that copies of this
Agreement shall not be publicly filed or otherwise made available to the public,
except where such disclosure, availability or filing is required by applicable
Law and only to the extent required by such Law.
4.3 Additional Agreements; Approvals; Consents.
Upon the terms and subject to the conditions set forth in this Agreement, each
party hereto agrees, both before and after the Closing, to use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to confirm and further the
effectiveness of, in the most expeditious manner practicable, the transactions
contemplated by this Agreement. The actions contemplated by this Section 4.3
shall include, but are not limited to: (a) the procurement of any Approvals from
all Governmental Entities and the making of any necessary registrations or
filings (including filings with Governmental Entities) and the taking of all
reasonable steps as may be necessary to obtain an Approval from, or to avoid and
action or proceeding by, any Governmental Entity, (b) giving all notices to, and
making all registrations and filings with third parties, including without
limitation submissions of information requested by Governmental Entities;
provided, however that neither the Seller nor Buyer Parties shall be required to
make any payments, commence litigation or agree to modifications of the terms
thereof in order to obtain any such waivers or Approvals, (c) obtaining all
necessary Permits required to be obtained under applicable Laws, (d) the defense
of any Actions, whether judicial or administrative, challenging this Agreement
and the consummation of the transactions contemplated hereby, including seeking
to have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, (e) the execution and delivery of any
additional instruments reasonably necessary to consummate the transactions
contemplated by this Agreement and (f) the fulfillment of all conditions to this
Agreement for which the party is responsible. Nothing in this Section 4.3 shall
be considered a waiver by a party of any condition to the other parties'
obligation to consummate the transactions contemplated hereby, including,
without limitation, obligations under any section of this Agreement to have
obtained all necessary Approvals of any Governmental Entities or third parties
prior to or on the Closing Date and each party hereby expressly reserves all
remedies hereunder relating to any breach by the other parties of any
representation or warranty or covenant in respect hereof.
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4.4 Books and Records.
From and after the Closing Date, to the extent reasonably requested by any party
hereto, each party hereto shall, and shall cause their respective Affiliates to,
cooperate with and make available to the other party, during normal business
hours, all books and records, information and employees (without substantial
disruption of employment), as well as access to, and the cooperation of, the
auditors of such party, retained and remaining in existence after the Closing
which are necessary or useful in connection with any Tax inquiry, audit,
investigation or dispute, any litigation or investigation or any other matter
requiring any such books and records, information or employees, or access to
such auditors, for any reasonable business purpose. The party requesting any
such books and records, information or employees, or access to such auditors,
shall bear all of the out-of-pocket costs and expenses (including, without
limitation, attorneys' fees, but excluding any reimbursement for salaries or
benefits) reasonably incurred in connection with providing such books and
records, information or employees, or access to such auditors.
4.5 Notification of Certain Matters.
A party shall give prompt notice to the other parties after becoming aware of
(a) the occurrence, or failure to occur,
of any event that would be likely to cause (x) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
or (y) a material adverse effect on the Seller's ability to consummate the
transactions contemplated by this Agreement; and (b) any failure of any party to
comply with or satisfy, in any material respect, any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement. No such
notification shall affect, or be deemed to cure any breach of, the
representations, warranties, covenants and agreements of the parties or the
conditions to their respective obligations hereunder. The notification
obligations of each party set forth in this Section 4.5 shall expire upon the
occurrence of the Closing on the Closing Date. The Seller shall also give prompt
notice to Buyer Parties of any known material Default, or any known material
claim made by, or known material Action threatened or commenced against, York or
any of its Subsidiaries occurring prior to the Closing and not disclosed in the
MacArthur Purchase Agreement.
4.6 Consideration for MacArthur Transactions.
Buyer Parties agree not to amend the MacArthur Purchase Agreement in a manner
(or take any other action) that would increase the aggregate consideration for
the MacArthur Shares to be sold to Buyer in the MacArthur Sale and contributed
by MacArthur to Parent in the MacArthur Contribution from that set forth in the
MacArthur Purchase Agreement delivered to Bexil on the date of this Agreement,
unless Buyer Parties shall agree to increase the Purchase Price payable
hereunder proportionately with any such increase in the aggregate consideration
for the Bexil Shares. The consideration or any other payments to be made to
MacArthur pursuant to the MacArthur Agreements shall not be deemed to be
consideration for the MacArthur Shares.
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ARTICLE V
COVENANTS AND AGREEMENTS OF THE SELLER
5.1 Proxy Statement.
As promptly as practicable after the execution of this Agreement, the Seller
shall prepare and file with the SEC a proxy statement relating to the meeting of
the Seller's stockholders to be held in connection with the Bexil Sale (together
with any amendments thereof or supplements thereto, the "Proxy Statement"). In
addition, the Seller shall prepare and file with the SEC any Other Filings as
and when required or requested by the SEC. The Seller will use all reasonable
efforts to respond to any comments made by the SEC with respect to the Proxy
Statement and any Other Filings. As promptly as practicable after the clearance
of the Proxy Statement by the SEC, the Seller shall mail the Proxy Statement to
its stockholders. The Proxy Statement shall (subject to the last sentence of
Section 5.3(c) hereof) include the Board Recommendation. The Seller shall permit
Buyer Parties to review the Proxy Statement, and any supplements or amendments
thereto, and Seller shall give reasonable consideration to any comments thereto
made by Buyer Parties or their counsel, prior to mailing the Proxy Statement and
any supplements or amendments thereto, to the stockholders of the Seller;
provided that Buyer Parties review such documents in as expeditious a manner as
practicably possible. If at any time prior to Closing, any event or circumstance
relating to the Seller, or its respective officers or directors, should be
discovered by the Seller which should be set forth in an amendment or a
supplement to the Proxy Statement or any Other Filing, the Seller shall promptly
notify Buyer Parties in writing and file such amendment. All documents that the
Seller is responsible for filing in connection with the transactions
contemplated herein will comply as to form and substance in all material
respects with the applicable requirements of the Exchange Act, the rules and
regulations thereunder and all other applicable Laws.
5.2 Bexil Stockholders' Meetings.
(a) The Seller shall establish a record date for, duly call and hold a meeting
of its stockholders (the "Bexil Stockholders' Meeting") as promptly as
practicable for the purpose of voting to approve the Agreement and the Bexil
Sale, and the Seller shall use its commercially reasonable efforts to hold the
Bexil Stockholders' Meeting as soon as practicable after the date on which the
Proxy Statement is cleared by the SEC.
(b) In connection with the Bexil Stockholders' Meeting, the Seller will (i)
subject to, and to the extent permissible under, applicable Law, use its
commercially reasonable efforts (including maintaining a nationally recognized
proxy solicitor or other proxy solicitor reasonably acceptable to Buyer Parties
(it being agreed that X.X. Xxxxxx is acceptable) and postponing or adjourning
the Bexil Stockholders' Meeting to obtain a quorum or to solicit additional
proxies, but for no other reason without the prior consent of Buyer Parties,
such consent not to be unreasonably withheld) to obtain the Required Vote and
(ii) otherwise comply with all legal requirements applicable to the Bexil
Stockholders' Meeting.
5.3 No Solicitation of Other Proposals.
(a) Notwithstanding anything in the Existing Stockholders Agreement to the
contrary, except as expressly permitted by the terms of this Agreement, prior to
the earlier of the Closing or the termination of this Agreement pursuant to
Section 7.1, the Seller shall not, directly or indirectly, take (and the Seller
shall not authorize or permit any of its Representatives or, to the extent
within the Seller's control, other Affiliates to take) any action to (i)
encourage (including by way of furnishing non-public information), solicit,
initiate or facilitate any Takeover Proposal, (ii) enter into any agreement with
respect to any Takeover Proposal or enter into any agreement, arrangement or
understanding requiring the Seller to abandon, terminate or fail to consummate
the Bexil Sale or any other transaction contemplated by this Agreement, or (iii)
participate in any way in discussions or negotiations with, or furnish any
information to, any Person in connection with, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
could reasonably be expected to lead to, any Takeover Proposal, provided,
however, if at any time prior to obtaining the Required Vote, the Seller
receives a bona fide written Superior Proposal with respect to which the Board
of Directors determines in good faith, after consulting with outside counsel,
that to do so is necessary or advisable to comply with the directors' duties to
the Seller and its stockholders under applicable Law, then to that extent (and
only to that extent), the Seller and its directors, officers and other
Representatives may, in response to such Superior Proposal: (A) furnish
non-public information with respect to the Seller and York (in the Seller's
possession) to the Person making such Superior Proposal (and to such Person's
Representatives), but only if: (1) such Person enters into a confidentiality
agreement with the Seller on terms not more favorable to the other party than
the Confidentiality Agreement; and (2) concurrently with the delivery to such
Person, the Seller delivers to Buyer Parties all such information relating to
such Superior Proposal not previously provided to Buyer Parties; and (B)
participate in discussions and negotiations with such Person (and with such
Person's Representatives) regarding such Superior Proposal.
(b) In addition to the other obligations of the Seller set forth in this Section
5.3, promptly after any executive officer or director of the Seller becomes
aware that any proposal has been received by, any information has been requested
from, or any discussions or negotiations have been sought to be initiated or
continued with, the Seller in respect of any Takeover Proposal, the Seller shall
advise Buyer Parties of such proposal, request or other contact within
twenty-four (24) hours of receipt of such proposal, request or contact, shall
furnish to Buyer Parties copies of any such proposal or inquiry, if it is in
writing, or a written summary of any such proposal or inquiry, if it is not in
writing and shall keep Buyer Parties fully informed on a prompt basis with
respect to any developments with respect to the foregoing.
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(c) Except as expressly permitted by this Section 5.3(c): (i) the Board of
Directors shall not withdraw or modify, or propose publicly to withdraw or
modify, in a manner adverse to Buyer Parties, the Board Recommendation, (ii)
neither the Board of Directors nor any committee thereof (including the Special
Committee) shall approve or recommend, or propose publicly to approve or
recommend, any Takeover Proposal, and (iii) neither the Board of Directors nor
any committee thereof (including the Special Committee) shall authorize or cause
the Seller to enter into any letter of intent, agreement in principle,
memorandum of understanding, merger, acquisition, purchase or joint venture
agreement related to any Takeover Proposal. Notwithstanding the foregoing or any
other provision of this Agreement, but subject to the procedures set forth in
Section 5.3(d), (A) if at any time prior to obtaining the Required Vote the
Seller receives a bona fide written Superior Proposal, the Board of Directors
may withdraw or modify the Board Recommendation, any committee of the Board of
Directors (including the Special Committee) may withdraw or modify its
recommendation with respect to this Agreement and the Board of Directors may
recommend a Superior Proposal, if the Board of Directors (or any committee
thereof to which authority to make such determination has been delegated in
accordance with Maryland Law) determines in good faith after consulting with
outside counsel, that such withdrawal, modification or recommendation is
necessary or advisable to comply with its duties to the Seller and its
stockholders under applicable Law and (B) the Board of Directors may,
contemporaneously with the termination of this Agreement pursuant to Section
7.1(a)(x), cause the Seller to enter into a letter of intent, agreement in
principle, memorandum of understanding, merger, acquisition, purchase or joint
venture agreement or other agreement related to any Superior Proposal (other
than a confidentiality agreement as contemplated by Section 5.3(a)).
(d) If the Board of Directors shall have determined to recommend to the
stockholders of the Seller that they approve a Superior Proposal pursuant to
Section 5.3(c): (i) the Seller shall immediately provide Buyer Parties oral
notice of such Superior Proposal and a written notice that describes the
material terms of such Superior Proposal and the parties thereto, (ii) Buyer
Parties shall have the right (but Buyer Parties shall not be obligated), at any
time during the five (5) business days following receipt of such written
notification from the Seller, to propose adjustments in the terms and conditions
of this Agreement or to propose an alternate transaction, and (iii) if Buyer
Parties propose an adjustment to the terms of this Agreement or an alternate
transaction within such five (5) business days, the Board of Directors shall
consider in good faith (in consultation with the Seller Financial Advisor) such
proposal from Buyer Parties prior to (A) withdrawing or modifying the Board
Recommendation or any other recommendation with respect to this Agreement, (B)
recommending such Superior Proposal to the Seller's stockholders or (C)
terminating this Agreement pursuant to Section 7.1(a)(x). The Seller shall not
take any of the actions set forth in clause (iii)(A), clause (iii)(B) or clause
(iii)(C) of the immediately preceding sentence until (x) the Seller has
delivered to Buyer Parties the notice required by clause (i) of the immediately
preceding sentence and (y) the five (5) business day period set forth in clause
(ii) of the immediately preceding sentence has elapsed and either (1) the Seller
has not received, or received notice of, a proposal from Buyer Parties complying
with clause (ii) of the immediately preceding sentence or (2) the Seller has
received such a proposal from Buyer Parties and the Board of Directors has
considered such proposal in good faith (in consultation with the Seller
Financial Advisor).
5.4 Waiver of Rights of Existing Stockholders Agreement.
(a) In accordance with Section 18 of the Existing Stockholders Agreement:
(i) the Seller hereby waives any and all rights that the Seller may have
pursuant to the Existing Stockholders Agreement (including, without limitation,
those set forth in Sections 2, 5 and 11) with respect to the execution and
delivery by MacArthur of the MacArthur Purchase Agreement and the consummation
of the transactions contemplated by the MacArthur Purchase Agreement (including,
without limitation, the MacArthur Transactions) on the terms and conditions
contemplated therein, provided, however, that, subject to Section 5.4(a)(ii),
this waiver shall terminate and shall be null and void, ab initio, and of no
further force or effect, upon the earliest to occur of (x) a termination of this
Agreement in accordance with its terms and (y) the termination, waiver or
amendment of Section 5.13 (Existing Stockholders Agreement) of the MacArthur
Purchase Agreement; and
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(ii) notwithstanding the foregoing clause (i), the Seller unconditionally waives
any and all rights that the Seller may have pursuant to Sections 2 and 3 of the
Existing Stockholders Agreement with respect to the agreement made by MacArthur
to restrict the transferability of the MacArthur Shares pursuant to Section
9.1(b)(iii)(C) and (D) of the MacArthur Purchase Agreement, which waiver shall
survive any termination of this Agreement.
5.5 Stockholder Distributions.
In the event that the Seller receives a Stockholder Distribution after the date
hereof and on or prior to the Closing Date, the Seller shall promptly notify
Buyer Parties in writing of the date and amount of such Stockholder
Distribution.
ARTICLE VI
CONDITIONS TO THE CLOSING
6.1 Conditions to the Closing Relating to Buyer.
Buyer Parties' obligation to consummate the transactions contemplated hereby is
subject to the fulfillment or written waiver, prior to or at the Closing Date,
of each of the following conditions:
(a) Representations, Warranties and Covenants. All representations and
warranties of the Seller contained in this Agreement and qualified by the words
"material," "Material Adverse Effect" and similar phrases shall be true and
correct in all respects, and all representations and warranties of the Seller
contained in this Agreement that are not so qualified shall be true and correct
in all material respects, in each case, at and as of the date of this Agreement
and at and as of the Closing Date, except for those representations and
warranties that speak as of a particular date, which will continue to be true
and correct as of such date, and the Seller shall have performed and satisfied
in all material respects all agreements and covenants required hereby to be
performed by it prior to or on the Closing Date.
(b) Regulatory Consents, Authorizations, etc. All consents, authorizations,
Orders and Approvals of, and filings and registrations with any Governmental
Entity (including pursuant to the HSR Act) or any other Person which are
required for or in connection with the execution and delivery of this Agreement
and the consummation by each party hereto of the transactions contemplated
hereby, shall have been obtained or made. The applicable waiting period,
including all extensions thereof, under the HSR Act shall have expired or been
terminated.
(c) Corporate Documents. Buyer Parties shall have received from the Seller, (i)
any required stockholder proxies, resolutions or consents from the holders of
Equity Securities of the Seller authorizing the Seller to enter into this
Agreement and authorizing and approving the transactions contemplated hereby and
(ii) resolutions adopted by the Board of Directors approving this Agreement and
the transactions contemplated hereby, in each case certified by the Seller's
corporate secretary.
(d) Litigation; Other Events. No Law or Order shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Entity, nor shall any Action
be pending or threatened, which questions the validity or legality of, or
prohibits or restricts or, if successful, would prohibit or restrict, the
transactions contemplated by this Agreement or would not permit York or its
Subsidiaries as presently operated to continue materially unimpaired following
the Closing Date or which would have any material adverse effect on the right or
ability of Buyer Parties to own, operate, possess or transfer York and its
Subsidiaries after the Closing.
(e) Deliveries. The deliveries referred to in Section 1.5(a) shall have been
made.
(f) Certificates. The Seller shall have furnished Buyer Parties with such
certificates of its officers and others to evidence compliance with the
conditions set forth in this Section 6.1 as may be reasonably requested by Buyer
Parties.
(g) Stockholder Approval. This Agreement and the Bexil Sale shall have been
approved by the Required Vote of the stockholders of the Seller in accordance
with applicable Law.
(h) Consummation of the MacArthur Transactions. The MacArthur Transactions and
the other transactions contemplated by the MacArthur Purchase Agreement shall
have been consummated.
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6.2 Conditions to the Closing Related to the Seller.
The Seller's obligation to consummate the transactions contemplated hereby is
subject to the fulfillment or waiver, prior to or at the Closing Date, of each
of the following conditions:
(a) Representations, Warranties and Covenants. All representations and
warranties of Buyer Parties contained in this Agreement and qualified by the
words "material," "Material Adverse Effect" and similar phrases shall be true
and correct in all respects, and all representations and warranties of Buyer
Parties contained in this Agreement that are not so qualified shall be true and
correct in all material respects, in each case, at and as of the date of this
Agreement and at and as of the Closing Date, except for those representations
and warranties that speak as of a particular date, which will continue to be
true and correct as of such date, and Buyer Parties shall have performed and
satisfied in all material respects all agreements and covenants required hereby
to be performed by it prior to or on the Closing Date.
(b) Regulatory Consents, Authorizations, etc. All consents, authorizations,
Orders and Approvals of, and filings and registrations with any Governmental
Entity (including pursuant to the HSR Act) which are required for or in
connection with the execution and delivery of this Agreement and the
consummation by each party hereto of the transactions contemplated hereby, shall
have been obtained or made. The applicable waiting period, including all
extensions thereof, under the HSR Act shall have expired or been terminated.
(c) Litigation; Other Events. No Law or Order shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Entity, nor shall any Action
be pending or threatened, which questions the validity or legality of, or
prohibits or restricts or, if successful, would prohibit or restrict, the
transactions contemplated by this Agreement.
(d) Deliveries. The deliveries referred to in Section 1.5(b) shall have been
made.
(e) Certificates. Buyer Parties shall have furnished the Seller with such
certificates of its officers and others to evidence compliance with the
conditions set forth in this Section 6.2 as may be reasonably requested by the
Seller.
(f) Stockholder Approval. This Agreement and the Bexil Sale shall have been
approved by the Required Vote of the stockholders of the Seller in accordance
with applicable Law.
ARTICLE VII
MISCELLANEOUS
7.1 Termination.
(a) Termination. This Agreement may be terminated at any time prior to
Closing:
(i) by the Buyer Parties and the Seller, by action of their respective
boards of directors;
(ii) by Buyer Parties, on the one hand, or the Seller, on the other hand,
if the Closing shall not have occurred on or before June 30, 2006 (the "Outside
Date"); provided, however, that the right to terminate this Agreement under this
Section 7.1(a)(ii) shall not be available to any party whose failure to fulfill
any obligation under this Agreement has been the cause of, or resulted in, the
failure of the transactions contemplated by this Agreement to occur on or before
such date;
(iii) by Buyer Parties, on the one hand, or the Seller, on the other hand,
if any Governmental Entity shall have issued an Order or taken any other action
(including the failure to take action) permanently restraining, enjoining or
otherwise prohibiting any of the transactions contemplated by this Agreement,
and such Order shall have become final and non-appealable;
(iv) by Buyer Parties if (A) there is a material breach of any
representation or warranty set forth in Article III hereof or any covenant or
agreement to be complied with or performed by the Seller pursuant to the terms
of this Agreement or (B) the failure of a condition set forth in Section 6.1 to
be satisfied (and such condition is not waived in writing by Buyer Parties) on
or prior to the Closing Date, or the occurrence of any event which results or
would result in the failure of a condition set forth in Section 6.1 to be
satisfied on or prior to the Closing Date; provided that Buyer Parties may not
terminate this Agreement prior to the 30th day following the occurrence of such
failure if such failure is capable of being cured and the Seller is using
reasonable best efforts to cure such failure;
(v) by the Seller if there is a material breach of any representation or
warranty set forth in Article II hereof or of any covenant or agreement to be
complied with or performed by Buyer Parties pursuant to the terms of this
Agreement or the failure of a condition set forth in Section 6.2 to be satisfied
(and such condition is not waived in writing by the Seller) on or prior to the
Closing Date, or the occurrence of any event which results or would result in
the failure of a condition set forth in Section 6.2 to be satisfied on or prior
to the Closing Date; provided that the Seller may not terminate this Agreement
prior to the 30th day following the occurrence of such failure if such failure
is capable of being cured and Buyer Parties are using reasonable best efforts to
cure such failure;
(vi) by Buyer Parties if the approval by the stockholders of the Seller
required for the consummation of the transactions contemplated by this Agreement
shall not have been obtained by reason of the failure to obtain the Required
Vote at the Bexil Stockholders' Meeting or at any adjournment thereof;
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(vii) by the Seller if the approval of the stockholders of the Seller
required for the consummation of the transactions contemplated by this Agreement
shall not have been obtained by reason of the failure to obtain the Required
Vote at the Bexil Stockholders' Meeting or at any adjournment thereof;
(viii) by Buyer Parties if (A) the Board of Directors shall have withdrawn,
or modified or qualified in a manner adverse to Buyer Parties, or failed upon
Buyer Parties' request to reconfirm, the Board Recommendation (or determined to
do so); (B) a tender offer or exchange offer that, if successful, would result
in any person or group becoming a beneficial owner of 15% or more of the
outstanding Equity Securities of the Seller is commenced (other than by Buyer
Parties or an Affiliate of Buyer Parties) and the Board of Directors fails to
recommend that their stockholders not tender their shares in such tender or
exchange offer; (C) any person (other than the parties to the Voting Agreement)
or group becomes the beneficial owner of 15% or more of the outstanding Equity
Securities of the Seller; or (D) for any reason the Seller fails to call or hold
the Bexil Stockholders' Meeting to obtain the Required Vote by the 5th day prior
to the Outside Date;
(ix) by Buyer Parties, if since the date of this Agreement, there shall
have been any event, development or change of circumstance that constitutes, has
had or would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on York or a material adverse effect on the Seller's
ability to consummate the transactions contemplated by this Agreement;
(x) by the Seller, if, prior to obtaining the Required Vote, it receives a
Superior Proposal and the Board of Directors determines in good faith, after
consultation with the Seller Financial Advisor, to enter into an agreement to
effect the Superior Proposal; provided that the Seller may not terminate this
Agreement pursuant to this Section 7.1(x) unless (A) the Seller has complied
with its obligations under Section 5.3 and (B) five (5) business days have
elapsed following delivery to Buyer Parties of a written notice of such
determination by the Board of Directors and during such five (5) business day
period Buyer Parties have not submitted a binding offer that the Board of
Directors has determined in its good faith judgment to be at least as favorable
to the Seller's stockholders as the Superior Proposal; or
(xi) by Buyer Parties, on the one hand, or the Seller, on the other hand,
if the MacArthur Purchase Agreement shall have been terminated prior to the
consummation of the MacArthur Transactions and the other transactions
contemplated thereby.
(b) In the Event of Termination. In the event of termination of this
Agreement:
(i) each party will redeliver all documents, work papers and other material
of the other party relating to the transactions contemplated hereby, whether so
obtained before or after the execution hereof, to the party furnishing the same;
and
(ii) neither party hereto shall have any liability to the other party to
this Agreement, except:
(A) with respect to any liabilities or damages incurred or suffered by any
party as a result of the breach by the other parties hereto of any of their
representations, warranties, covenants or other agreements set forth in this
Agreement;
(B) if this Agreement is terminated by (x) Buyer Parties pursuant to
Section 7.1(a)(iv)(A), Section 7.1(a)(vi), Section 7.1(a)(viii) or because of a
failure to satisfy a condition set forth in Section 6.1(a), (c), (e), (f) or
(g), or (y) Seller pursuant to Section 7.1(a)(vii) or Section 7.1(a)(x), in each
such case Seller shall pay to Buyer an amount equal to Buyer's Expenses up to an
aggregate amount of $1,750,000; and
(C) the provisions of Section 5.4(a)(ii) shall survive any termination of
this Agreement.
(c) Payments. Payment of Expenses pursuant to Section 7.1(b)(ii)(B) shall
be made not later than three business days after delivery to Seller of notice of
demand for payment and a documented itemization setting forth in reasonable
detail all Expenses of Buyer Parties (which itemization may be supplemented and
updated from time to time by Buyer Parties until the 90th day after such party
delivers such notice of demand for payment without positioning the time for
payment of previously submitted Expenses). All payments under Section 7.1 shall
be made by wire transfer of immediately available funds to an account designated
by Buyer Parties. Seller and Buyer Parties acknowledge that the agreements
contained in this Section 7.1 are an integral part of the transactions
contemplated by this Agreement and that, without these agreements, Buyer Parties
would not enter into this Agreement. Accordingly, if Seller fails promptly to
pay any amount due to Buyer Parties pursuant to this Section 7.1 and, in order
to obtain such payment, any Buyer Party commences a suit which results in a
final, non-appealable judgment against Seller for the fees and expenses set
forth in this Section 7.1, Seller shall pay to Buyer Parties their costs and
expenses (including reasonable attorney's fees and expenses) incurred in
connection with such suit, together with interest on the aggregate amount of the
fees and expenses at a rate equal to the prime rate reported in the Wall Street
Journal on the date such payment was required to be made pursuant to Section 7.1
plus two (2) percent.
7.2 Non-Survival of Representations and Warranties.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing Date.
This Section 7.2 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Closing Date.
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7.3 Notices.
All notices and other communications provided for herein shall be in writing
and shall be deemed to have been duly given when delivered personally or when
sent by telex, telecopy or other electronic or digital transmission method
(including, but not limited to, in portable document format by electronic mail)
or three (3) business days after being mailed by registered or certified mail,
return receipt requested, postage prepaid, to the party to whom it is directed
or one (1) business day after being sent via a nationally recognized courier
service for next business day delivery, to the party to whom it is directed:
If to Buyer Parties, to:
c/o Odyssey Investment Partners, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Xxxxxxx XxXxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
With copies to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
E-Mail: xxxxxx.xxxxxxx@xx.xxx
If to the Seller, to:
Bexil Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxxxxx@xxxxx.xxx
------------------
With copies to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
E-Mail: Xxxxxx.Xxxxxxxxxxxx@xxxxxxxxx.xxx
or for any party, at such other address as such party shall have specified in
writing to each of the others in accordance with this Section 7.3.
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7.4 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but such counterparts together shall constitute one
and the same instrument.
7.5 Section Headings.
The section headings of this Agreement are for convenience of reference only and
shall not be deemed to limit or affect any of the provisions hereof.
7.6 Amendments; No Waivers.
(a) Any provision of this Agreement may be waived or amended if, and only if,
such amendment or waiver is in writing and signed by each of the parties hereto.
(b) No failure by any party hereto to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement, or to exercise any
right or remedy consequent upon a breach hereof, shall constitute a waiver of
any such breach or any other covenant, duty, agreement or condition hereof.
7.7 Entire Agreement; No Assignment.
This Agreement (including the schedules hereto, the other documents delivered
pursuant hereto and any amendments hereto) (a) constitutes the entire agreement
and understanding of the parties hereto and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof and (b) is not intended to confer upon any other
Person any rights or remedies hereunder, and this Agreement shall not be
assigned, by operation of Law or otherwise prior to the Closing; provided that
Buyer Parties may assign their rights under this Agreement to any of its
Affiliates and to any lender(s) (or any agent on their behalf) providing
financing for the transactions contemplated hereby.
7.8 Governing Law.
This Agreement and all claims arising out of or relating to it shall be governed
by and construed in accordance with the Laws of the State of New York, except to
the extent that the MGCL is applicable to actions taken by the Seller and its
officers and directors in connection with this Agreement and the Bexil Sale.
7.9 Severability.
If it is determined by a court of competent jurisdiction that any provision of
this Agreement is invalid under applicable law, such provision shall be
ineffective only to the extent of such invalidity, without invalidating the
remainder of this Agreement.
7.10 Cumulative Remedies.
All rights and remedies of either party hereto are cumulative of each other and
of every other right or remedy such party may otherwise have at law or in
equity, and the exercise of one or more rights or remedies shall not prejudice
or impair the concurrent or subsequent exercise of other rights or remedies.
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7.11 JURISDICTION.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO AND ACCEPTS FOR ITSELF AND ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF AND
SERVICE OF PROCESS PURSUANT TO THE LAWS AND RULES OF THE STATE OF NEW YORK AND
THE UNITED STATES OF AMERICA AND THE RULES OF THE COURTS OF THE STATE OF NEW
YORK AND THE FEDERAL COURTS IN THE SOUTHERN DISTRICT OF NEW YORK, WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS AND AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY ARISING UNDER OR OUT OF, IN RESPECT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY RELATED DOCUMENT OR OBLIGATION. EACH PARTY FURTHER IRREVOCABLY
DESIGNATES AND APPOINTS THE INDIVIDUAL IDENTIFIED IN OR PURSUANT TO SECTION 6.3
HEREOF TO RECEIVE NOTICES ON ITS BEHALF, AS ITS AGENT TO RECEIVE ON ITS BEHALF
SERVICE OF ALL PROCESS IN ANY SUCH ACTION BEFORE ANY BODY, SUCH SERVICE BEING
HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY
OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO EACH PARTY
AT ITS ADDRESS PROVIDED IN SECTION 7.3. IF ANY AGENT SO APPOINTED REFUSES TO
ACCEPT SERVICE, THE DESIGNATING PARTY HEREBY AGREES THAT SERVICE OF PROCESS
SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST IT IN THE APPLICABLE
JURISDICTION MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO ITS ADDRESS PROVIDED IN SECTION 7.3. EACH PARTY HEREBY
ACKNOWLEDGES THAT SUCH SERVICE SHALL BE EFFECTIVE AND BINDING IN EVERY RESPECT.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY PARTY TO BRING ANY ACTION OR
PROCEEDING AGAINST THE OTHER PARTY IN ANY OTHER JURISDICTION.
7.12 Attorneys' Fees.
In the event of any proceeding arising out of or related to this Agreement, the
prevailing party shall be entitled to recover from the losing party all of its
costs and expenses incurred in connection with such proceeding, including court
costs and reasonable attorneys' fees, whether or not such proceeding is
prosecuted to judgment.
ARTICLE VIII
DEFINITIONS
8.1 General.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires,
(a) The terms defined in this Article VIII include the plural as well as the
singular,
(b) All accounting terms not otherwise defined herein have the meanings assigned
under GAAP,
(c) All references in this Agreement to designated "Articles," "Sections" and
other subdivisions are to the designated Articles, Sections and other
subdivisions of the body of this Agreement,
(d) Pronouns of either gender or neuter shall include, as appropriate, the other
pronoun forms, and
(e) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.
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8.2 Definitions.
As used in this Agreement and the Exhibits and Schedules delivered pursuant to
this Agreement, the following definitions shall apply:
"Action" means any action, complaint, petition, investigation, suit or
other proceeding, whether civil or criminal, in Law or in equity, or before any
arbitrator or Governmental Entity.
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
a specified Person.
"Agreement" means this Agreement by and among Buyer Parties and the Seller,
as amended or supplemented, together with all Exhibits and Schedules attached or
incorporated by reference.
"Approval" means any approval, authorization, consent, qualification or
registration, or any waiver of any of the foregoing, required to be obtained
from, or any notice, statement or other communication required to be filed with
or delivered to, any Governmental Entity or any other Person, but does not
include the Required Vote.
"Associate" of a Person means (a) a corporation or organization (other than
York or a party to this Agreement) of which such Person or any Associate is an
officer, director or partner or is, directly or indirectly, the beneficial owner
of ten percent (10%) or more of any class of Equity Securities, (b) any trust or
other estate in which such Person or any Associate has a substantial beneficial
interest or as to which such Person serves as trustee or in a similar capacity,
and (c) any relative or spouse of such Person or any relative of such spouse who
has the same home as such Person.
"Bexil Sale" has the meaning set forth in the third recital of this
Agreement
"Bexil Shares" has the meaning set forth in the third recital of this
Agreement.
"Bexil Stockholders' Meeting" has the meaning set forth in Section 5.2
hereof.
"Board of Directors" has the meaning set forth in the third recital to this
Agreement.
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"Board Recommendation" means the recommendation by the Board of Directors
to the stockholders of the Seller that the approval of this Agreement and the
Bexil Sale contemplated hereby by Bexil's stockholders is advisable and that
Bexil's board of directors has determined that the approval of this Agreement
and the Bexil Sale contemplated hereby is fair and in the best interests of the
Seller and its stockholders.
"Buyer" has the meaning set forth in the preamble to this Agreement.
"Buyer Parties" has the meaning set forth in the preamble to this
Agreement.
"Closing" means the consummation of the Transactions and the other
transactions contemplated by this Agreement.
"Closing Date" has the meaning set forth in Section 1.4 hereof.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the applicable regulations thereunder. "Confidentiality Agreement"
means that certain Confidentiality Agreement between Odyssey Investment
Partners, LLC and Xxxxxxx Associates, dated as of March 18, 2005.
"Contract" means any agreement, arrangement, bond, insurance policy,
commitment, franchise, indemnity, indenture, instrument, lease, license,
insurance policy or understanding, whether or not in writing.
"Default" shall mean (a) a breach of or default under any Contract or
Permit, (b) the occurrence of an event that with the passage of time or the
giving of notice or both would constitute a breach of or default under any
Contract or Permit, or (c) the occurrence of an event that with or without the
passage of time or the giving of notice or both would give rise to a right of
termination, renegotiation or acceleration under any Contract or Permit.
"Encumbrance" means any claim, charge, easement, encumbrance, lease,
covenant, security interest, mortgage, lien, option, pledge, rights of others,
restriction (whether on voting, sale, transfer, disposition or otherwise), or
other encumbrance whatsoever, whether imposed by agreement, understanding, law,
equity or otherwise, except for any restrictions on transfer generally arising
under any applicable federal or state securities Law.
"Equity Securities" means any capital stock or other equity interest or any
securities convertible into or exchangeable for capital stock or any other
rights, warrants or options to acquire any of the foregoing securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Stockholders Agreement" has the meaning set forth in Section
1.5(a) hereof.
"Expenses" includes all reasonable out-of-pocket expenses (including,
without limitation, all fees and expenses of counsel, accountants, investment
bankers, experts and consultants to a party hereto and its Affiliates) incurred
by a party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Agreement and the
MacArthur Purchase Agreement and the transactions contemplated hereby and
thereby.
"GAAP" means accounting principles generally accepted in the United States
of America, including generally accepted accounting principles as interpreted by
the SEC.
"Governmental Entity" means any governmental or regulatory body, agency,
bureau, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Knowledge" or "to its best knowledge" and like terms shall mean, with
respect to: (i) Buyer Parties, the actual knowledge of Xxxxxxx Xxxxxxxx and
Xxxxxxx XxXxxxxx and (ii) Bexil, the actual knowledge of Xxxxxx X. Xxxxxxx.
"Law" means any constitutional provision, laws, statutes, ordinances,
regulations, rules, notice requirements, court decisions, agency guidelines,
interpretations, principles of law and Orders of any Governmental Entity,
including without limitation environmental laws, energy, motor vehicle safety,
public utility, zoning, building and health codes, occupational safety and
health and laws respecting employment practices, employee documentation, terms
and conditions of employment and wages and hours.
"MacArthur" has the meaning set forth in the second recital to this
Agreement.
"MacArthur Agreements" has the meaning set forth in Section 2.8 hereof.
"MacArthur Contribution" has the meaning set forth in the second recital of
this Agreement.
"MacArthur Contribution Shares" has the meaning set forth in the second
recital of this Agreement.
"MacArthur Sale" has the meaning set forth in the second recital of this
Agreement.
"MacArthur Shares" has the meaning set forth in the second recital of this
Agreement.
"MacArthur Transactions" has the meaning set forth in the second recital of
this Agreement.
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"Material Adverse Effect" means, with respect to any Person, any adverse
change or effect in the condition (financial or otherwise), business or results
of operations of such Person or any of its Subsidiaries which is material to
such Person and its Subsidiaries, taken as a whole, other than any change or
effect resulting from or arising out of (A) changes or conditions generally
affecting the industries or segments in which such Person operates or (B)
changes in local, regional or national general economic, market or political
conditions which, in the case of (A) or (B), is not specifically related to, or
does not have a materially disproportionate effect (relative to other industry
participants) on, such Person.
"MGCL" means the Maryland General Corporation Law, as amended.
"Order" means any decree, injunction, judgment, order, ruling, assessment
or writ of any Governmental Entity.
"Other Filings" means all filings made by or required to be made by the
Seller with the SEC other than the Proxy Statement.
"Outside Date" has the meaning set forth in Section 7.1(a)(ii) hereof.
"Parent" has the meaning set forth in the preamble to this Agreement.
"Permit" means any franchise, Order or Approval or any waiver of the
foregoing, required to be issued by any Governmental Entity.
"Person" means an association, a corporation, an individual, a partnership,
a trust, a firm or any other entity, group or organization, including a
Governmental Entity.
"Proxy Statement" has the meaning set forth in Section 5.1 hereof.
"Purchase Price" has the meaning set forth in Section 1.2 hereof.
"Representative" shall mean any officer, director, principal, attorney,
advisor, agent, employee or other representative.
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"Required Vote" has the meaning set forth in Section 3.2 hereof.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" has the meaning set forth in Section 2.7(a).
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Financial Advisor" has the meaning set forth in Section 3.8 hereof.
"Shares" means the common shares of York.
"Special Committee" has the meaning set forth in the third recital to this
Agreement.
"Stockholder Distributions" means any cash payments made by York to the
Seller (including, without limitation, with respect to any management or
consulting fees).
"Superior Proposal" means a bona fide Takeover Proposal made by a third
party which was not solicited by or on behalf of the Seller, any Representative
of the Seller or any other Affiliate of the Seller and which, in the good faith
judgment of the Board of Directors taking into account the various legal,
financial and regulatory aspects of the proposal and the Person making such
proposal (a) if accepted, is reasonably likely to be consummated, and (b) if
consummated would, based upon the written advice of the Seller Financial
Advisor, result in a transaction that is more favorable to the Seller or the
Seller's stockholders, from a financial point of view, than the Bexil Sale
contemplated by this Agreement.
"Takeover Proposal" means any proposal or offer from any Person (other than
Buyer Parties and their Affiliates) providing for any: (a) acquisition (whether
in a single transaction or a series of related transactions) of assets of the
Seller or York having a fair market value equal to 10% or more of Seller's or
York's consolidated assets, as applicable, (b) direct or indirect acquisition
(whether in a single transaction or a series of related transactions) of 10% or
more of the voting power of the Seller or York, (c) direct or indirect
acquisition (whether in a single transaction or a series of related
transactions) of any of the Shares, (d) tender offer or exchange offer that if
consummated would result in any Person beneficially owning 10% or more of the
voting power of the Seller or York, or (e) merger, consolidation, share
exchange, business combination, recapitalization or similar transaction
involving the Seller or York, in each case, other than the Transactions.
"Tax" or "Taxes" means (i) taxes of any kind, levies or other like
assessments, imposts, charges or fees, including, without limitation, income,
gross receipts, ad valorem, value added, excise, real or personal property,
asset, sales, use, license, payroll, transaction, capital, net worth and
franchise taxes, escheat liability or other similar property rights asserted by
any Governmental Entity or governmental authority, estimated taxes, withholding,
employment, social security, workers compensation, utility, severance
production, unemployment compensation, occupation, premium, windfall profits,
transfer and gains taxes or other governmental taxes imposed or payable to the
United States, or any state, county, local or foreign government or subdivision
or agency thereof, and in each instance such term shall include any interest,
penalties or additions to tax attributable to any such Tax and (ii) any
liability for Taxes of another Person as a transferee, successor, by operation
of Law, contract or otherwise.
"Tax Return" means any report, return, statement, estimate, extension
request, declaration, notice, form or other information required to be supplied
to a taxing authority in connection with Taxes.
"Transactions" has the meaning set forth in the second recital of this
Agreement.
"Voting Agreement" means the voting agreement, dated as of the date hereof,
among Parent and certain stockholders of the Seller named therein, attached
hereto as Exhibit A.
"York" has the meaning set forth in the first recital to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written:
BEXIL CORPORATION, a Maryland corporation
By:____________________________________
Name:
Title:
YORK INSURANCE HOLDINGS, INC., a Delaware corporation
By:____________________________________
Name:
Title:
YORK INSURANCE ACQUISITION, INC., a Delaware corporation
By:____________________________________
Name:
Title:
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TABLE OF CONTENTS
ARTICLE I SALE; CLOSING........................................................2
1.1 Sale of the Equity Securities................................2
1.2 Purchase Price for the Equity Securities.....................2
1.3 Closing Costs; Transfer Taxes and Fees.......................2
1.4 The Closing..................................................2
1.5 Conveyances and Deliveries at the Closing....................2
1.6 Withholding Rights...........................................3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF BUYER PARTIES.....................3
2.1 Organization and Related Matters.............................4
2.2 Authorization; Consents and Approvals........................4
2.3 No Conflicts.................................................4
2.4 No Brokers or Finders........................................4
2.5 Legal Proceedings............................................4
2.6 Operation of Buyer Parties...................................5
2.7 Investment Representations...................................5
2.8 MacArthur Agreements. ......................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER.......................5
3.1 Organization, etc............................................6
3.2 Authorization................................................6
3.3 No Conflicts.................................................6
3.4 Ownership and Transfer of Bexil Shares.......................6
3.5 Consents, etc................................................7
3.6 Disclosure Documents.........................................7
3.7 Litigation...................................................7
3.8 Opinion of Financial Adviser.................................7
3.9 No Brokers or Finders........................................7
3.10 Vote Required................................................8
ARTICLE IV COVENANTS AND AGREEMENTS OF THE PARTIES.............................8
4.1 Expenses.....................................................8
4.2 Publicity....................................................8
4.3 Additional Agreements; Approvals; Consents...................8
4.4 Books and Records............................................9
4.5 Notification of Certain Matters..............................9
4.6 Consideration for MacArthur Transactions. ..................9
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ARTICLE V COVENANTS AND AGREEMENTS OF THE SELLER..............................10
5.1 Proxy Statement.............................................10
5.2 Bexil Stockholders' Meetings................................10
5.3 No Solicitation of Other Proposals..........................10
5.4 Waiver of Rights of Existing Stockholders Agreement..........1
5.5 Stockholder Distributions....................................2
ARTICLE VI CONDITIONS TO THE CLOSING...........................................2
6.1 Conditions to the Closing Relating to Buyer..................2
6.2 Conditions to the Closing Related to the Seller..............3
ARTICLE VII MISCELLANEOUS......................................................3
7.1 Termination..................................................3
7.2 Non-Survival of Representations and Warranties...............4
7.3 Notices......................................................5
7.4 Counterparts.................................................6
7.5 Section Headings.............................................6
7.6 Amendments; No Waivers.......................................6
7.7 Entire Agreement; No Assignment..............................6
7.8 Governing Law................................................6
7.9 Severability.................................................6
7.10 Cumulative Remedies..........................................6
7.11 JURISDICTION................................................17
7.12 Attorneys' Fees.............................................17
ARTICLE VIII DEFINITIONS......................................................17
8.1 General.....................................................17
8.2 Definitions.................................................18
