STOCK PURCHASE AGREEMENT
dated as of January 24, 1997
by and among
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.,
BLACKSTONE OFFSHORE
CAPITAL PARTNERS II MERCHANT
BANKING FUND L.P.,
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP L.P.,
XXXXXX HOLDINGS, INC.,
and
XXXXXX INTERNATIONAL, INC.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 2
ARTICLE II. PURCHASE AND SALE 6
Section 2.01. Purchase of New Shares 6
Section 2.02. Per Share Purchase Price 7
Section 2.03. Aggregate Purchase Price 7
Section 2.04. Fair Consideration 7
Section 2.05. Use of Proceeds 7
ARTICLE III. CLOSING 7
Section 3.01. Closing, Time and Place 7
Section 3.02. Deliveries to the Purchasers at the Closing 7
Section 3.03. Deliveries to Issuer at the Closing 9
ARTICLE IV. JOINT AND SEVERAL REPRESENTATIONS AND 9
WARRANTIES OF THE ISSUER AND INTERNATIONAL
Section 4.01. Organization; Good Standing; Qualification; 9
and Power
Section 4.02. Authority 9
Section 4.03. No Conflict or Violation 10
Section 4.04. Governmental Consents 10
Section 4.05. Capital Structure of the Corporation and Related 10
Matters
Section 4.06. No Default; Third Party Consents 11
Section 4.07. Subsidiaries 11
Section 4.08. Financial Statements 12
Section 4.09. Absence of Certain Changes 12
Section 4.10. Employee Benefit Matters 13
Section 4.11. Collective Bargaining Agreements, Employment 15
Agreements and Benefit Plans
Section 4.12. Intellectual Property 16
Section 4.13. Environmental Matters; Compliance with Laws 16
Section 4.14. Certain Matters 17
Section 4.15. Taxes 17
Section 4.16. Compliance with Laws 18
Section 4.17. Broker's or Finder's Commissions 18
Section 4.18. Representations and Warranties 18
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE 19
PURCHASERS
Section 5.01. Organization; Good Standing; Qualification; 19
and Power
Section 5.02. Authority 19
Section 5.03. No Conflict or Violation 19
Section 5.04. No Consent 19
Section 5.05. Investment Intent 19
Section 5.06. Bankruptcy 20
Section 5.07. ERISA 20
Section 5.08. Access to Information 20
Section 5.09. Sophistication of the Purchasers 20
Section 5.10. Accredited Investor 20
Section 5.11. Brokers or Finders Commissions 21
Section 5.12. Representations and Warranties 21
ARTICLE VI. COVENANTS OF THE ISSUER AND INTERNATIONAL 21
Section 6.01. Actions Before the Closing Date 21
Section 6.02. Stand Still 22
Section 6.03. Notification of Certain Matters 22
Section 6.04. Redemption Offer 22
ARTICLE VII. COVENANTS OF THE PURCHASERS 23
Section 7.01. Actions Before the Closing Date 23
Section 7.02. Confidentiality 23
Section 7.03. Notification of Certain Matters 23
Section 7.04. Financial Accommodations 23
ARTICLE VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE 24
ISSUER
Section 8.01. Representations and Warranties of the 24
Purchasers
Section 8.02. Performance of the Obligations of the 24
Purchasers
Section 8.03. No Violation of Orders 24
Section 8.04. Required Approvals 24
Section 8.05. Amended Stockholders Agreement 24
Section 8.06. Section 280G Approval 24
ARTICLE IX. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE 25
PURCHASERS
Section 9.01. Representations and Warranties of the Issuer 25
and International
Section 9.02. Performance of the Obligations of the Issuer 25
Section 9.03. Certificates of Fund II and MLGAL 25
Section 9.04. Certificate of the Option Holders 25
Section 9.05. No Violation of Orders 25
Section 9.06. Required Approvals 26
Section 9.07. Amended Stockholders Agreement 26
Section 9.08. Fifth Amendment to Subscription Agreement 26
Section 9.09. Other Transactions 26
Section 9.10. Waiver of Management Holders' Bid Right 26
Section 9.11. Waiver of Right of First Refusal 26
ARTICLE X. TERMINATION 26
Section 10.01. Conditions of Termination 26
Section 10.02. Effect of Termination 27
Section 10.03. Exclusive Remedy 27
ARTICLE XI. MISCELLANEOUS 28
Section 11.01. Public Announcements 28
Section 11.02. Expenses 28
Section 11.03. Notices 28
Section 11.04. Headings 29
Section 11.05. Construction 30
Section 11.06. Severability 30
Section 11.07. Entire Agreement 30
Section 11.08. Amendments; Waivers 30
Section 11.09. Parties in Interest 31
Section 11.10. Successors and Assigns 31
Section 11.11. Governing Law 31
Section 11.12. Counterparts 31
Section 11.13. Survival 31
Section 11.14. Subsequent Documentation 31
Section 11.15. Specific Performance 31
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Purchase Agreement") is entered into as
of the 24th day of January, 1997, by and among Blackstone Capital Partners II
Merchant Banking Fund L.P., a Delaware limited partnership ("BCPII"),
Blackstone Offshore Capital Partners II Merchant Banking Fund, L.P., a Cayman
Islands limited partnership ("BOCP"), Blackstone Family Investment
Partnership, a Delaware limited partnership ("BFIP"; together with BCPII and
BOCP, collectively the "Purchasers"), Xxxxxx Holdings, Inc., a Delaware
corporation (the "Issuer"), and Xxxxxx International, Inc., a Delaware
corporation ("International").
RECITALS
The Issuer is the sole stockholder of International. International is in
the business of developing, manufacturing and marketing technologically
advanced, high performance alloys for use primarily in the aerospace and
chemical processing industries (the "Business").
The Purchasers are willing to assist International in obtaining an
increase in its existing line of credit and in securing additional financing
for certain obligations of International and for the growth and expansion of
the Business.
The authorized capital stock of the Issuer consists of 20,000,000 shares
of common stock, $.01 par value per share (the "Common Stock"), of which
6,556,963 shares are currently issued and outstanding, and 2,000,000 shares of
blank check preferred stock (the "Preferred Stock"), none of which is
currently issued and outstanding.
The Purchasers desire to purchase from the Issuer 5,323,799 shares of the
Common Stock (the "New Shares"), and the Issuer desires to issue and sell the
New Shares to the Purchasers, on the terms and conditions set forth in this
Purchase Agreement.
Simultaneously with the closing of the transaction contemplated by this
Purchase Agreement, the Issuer will (a) redeem 4,393,915 shares of the Common
Stock from MLGA Fund II, L.P., a Connecticut limited partnership ("Fund II"),
and MLGAL Partners, L.P., a Connecticut limited partnership ("MLGAL") pursuant
to that certain Stock Redemption Agreement, dated as of January 24, 1997, by
and among Fund II, MLGAL and the Issuer in the form of Exhibit I-Dattached
hereto (the "Redemption Agreement"), and (b) redeem the Option Shares (as
hereinafter defined) from the Option Holders (as hereinafter defined) pursuant
to that certain Exercise and Repurchase Agreement in the form of Exhibit I-B
attached hereto.
Following the closing of the transaction contemplated by this Purchase
Agreement, the Issuer will redeem an aggregate of 823,770 shares of the Common
Stock from (a) certain stockholders of the Issuer that elect to tender their
shares of the Common Stock pursuant to that certain Consent Solicitation and
Offer to Redeem for Cash of the Issuer to be extended to its stockholders
other than Fund II, MLGAL and the Option Holders on or about January 24, 1997,
and (b) Fund II and MLGAL pursuant to the "Subsequent Closing" as provided
under the Redemption Agreement.
AGREEMENT
In consideration of the foregoing and of the respective representations,
warranties, covenants, and agreements herein contained, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Purchase Agreement, the following terms have the meanings
indicated below:
"Adverse Claim" shall have the meaning contained in 8-302 of the New
York Uniform Commercial Code.
"Affiliate" with respect to any Person means any Person that directly or
indirectly controls, or is under common control with, or is controlled by such
Person. As used in this definition, "control" (including its correlative
meanings "controlled by" and "under common control with") means possession,
directly or indirectly, of power to direct or cause the direction of
management or policies of such other Person (whether through ownership of
securities or partnership or other ownership interest, by contract or
otherwise); provided, however, any Person that owns, directly or indirectly,
any general partnership interest in another Person that is a general
partnership or 5% or more of the securities having ordinary voting power for
the election of directors, managers, or other governing body of any other
Person shall be deemed to control such other Person.
"Aggregate Purchase Price" has the meaning specified in Section 2.03.
"Amended Stockholders Agreement" means the Amended Stockholders
Agreement, by and among the Issuer and the Investors listed on the signature
pages thereof, in the form of Exhibit I-Aattached hereto.
"Audited Financial Statements" has the meaning specified in Section 4.08.
"BCPII" has the meaning specified in the Recitals of this Purchase
Agreement.
"BFIP" has the meaning specified in the Recitals of this Purchase
Agreement.
"BOCP" has the meaning specified in the Recitals of this Purchase
Agreement.
"Blue Sky Law" means or refers to the law or laws of any state or states
affecting the issuance, sale or transfer of any security of the Issuer.
"Business" has the meaning specified in the Recitals of this Purchase
Agreement.
"Business Day" means any day other than Saturday, Sunday, and any day on
which commercial banks in New York, New York or in Chicago, Illinois are
authorized by law to be closed.
"Change of Control Offer" means the offer of International to each holder
of the 11 5/8% Senior Notes due 2004 of International to repurchase such notes
in cash in an amount equal to 101% of the principal amount of such notes,
plus accrued and unpaid interest, as required as a result of the transactions
provided for in the Transaction Documents pursuant to Section 10.13 of the
Senior Note Indenture.
"Closing" has the meaning specified in Section 3.01.
"Closing Date" has the meaning specified in Section 3.01.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" has the meaning specified in the Recitals of this Purchase
Agreement.
"Employee Benefit Plans" has the meaning specified in Section 4.09(a).
"Environmental Laws" has the meaning specified in Section 4.13.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any similar or successor Federal statute and the rules and regulations of the
Commission thereunder.
"Exercise and Repurchase Agreement" means the Exercise and Repurchase
Agreement in the form of Exhibit I-B attached hereto to be executed by the
Option Holders and the Issuer prior to the Closing.
"Fifth Amendment to Subscription Agreement" means the Fifth Amendment to
the Stock Subscription Agreement in the form of Exhibit I-C attached hereto.
"Files and Records" means all files and records of the Issuer and
International, whether in hard copy or magnetic or other format, including
customer and supplier records, equipment maintenance records, equipment
warranty information, plant plans, specifications and drawings, sales and
advertising material, computer software, and records relating to employees.
"Foreign Subsidiaries" means each of Xxxxxx International, S.A.R.L., a
French corporation, Xxxxxx International, Ltd., a United Kingdom corporation,
and Nickel Contor, A.G., a Swiss corporation.
"Fund II" has the meaning specified in the Recitals of this Purchase
Agreement.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Infringement" has the meaning specified in Section 4.12.
"Intellectual Property" shall mean all United States and foreign
intellectual property of the Issuer, International and any of the
Subsidiaries, including, without limitation, all patents, copyrights,
trademarks, service marks, trade names, trade dress, inventions, technology,
know-how, trade secrets and confidential information, all registrations,
applications, goodwill and common-law rights related thereto, and all licenses
and similar agreements related thereto.
"International" has the meaning specified in the first paragraph of this
Purchase Agreement.
"Issuer" has the meaning specified in the first paragraph of this
Purchase Agreement.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
(statutory or other), option, charge, or sale agreement.
"Management Holders" means each of Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
F. Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxxxx.
"Material Adverse Effect," when used with respect to a Person, means a
material adverse effect on the assets, operations, business or financial
condition of that Person.
"MLGAL" has the meaning specified in the Recitals of this Purchase
Agreement.
"New Shares" has the meaning specified in the Recitals of this Purchase
Agreement.
"Option" means an option to purchase Common Stock granted pursuant to the
Option Plan.
"Option Holders" means collectively Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
F. Xxxxx Xxxxx and Xxxxxxx X. Xxxxxxxxx.
"Option Plan" means the Xxxxxx Holdings, Inc. Employee Stock Option Plan
as in effect on the date hereof.
"Option Shares" means the aggregate of 106,114 shares of the Common Stock
acquired by the Option Holders upon exercise of certain Options pursuant to
the Exercise and Repurchase Agreement and repurchased by the Issuer pursuant
to the Exercise and Repurchase Agreement.
"Permitted Fees" means the following fees payable by International in
connection with this Purchase Agreement: (i) the $2,380,000 fee payable to
Blackstone Management Partners, (ii) $1,750,000 fee payable to MLGAL, and
(iii) the $1,250,000 fee payable to PaineWebber, Incorporated.
"Per Share Price" has the meaning specified in Section 2.02.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust, or
unincorporated organization, or any governmental agency, officer, department,
commission, board, bureau, or instrumentality thereof.
"Personnel" means the officers, employees and/or agents of the Issuer.
"Preferred Stock" has the meaning specified in the Recitals of this
Purchase Agreement.
"Purchase Agreement" has the meaning specified in the Recitals of this
Purchase Agreement.
"Purchasers" has the meaning specified in the first paragraph of this
Purchase Agreement.
"Redemption Agreement" has the meaning specified in the Recitals of this
Purchase Agreement.
"Redemption Offer" means the Issuer's Consent Solicitation and Offer to
Redeem for Cash a certain percentage of the outstanding shares of Common Stock
owned by the stockholders of the Issuer other than Fund II or MLGAL at $10.15
per share, which shall be made by a Consent Solicitation and Offer to Redeem
for Cash in substantially the form of, and containing only those material
terms and conditions set forth in, Exhibit I-E attached hereto.
"Returns" has the meaning specified in Section 4.15.
"Securities Act" means the Securities Act of 1933, as amended, and any
similar or successor Federal statute and the rules and regulations of the
Commission thereunder.
"Senior Note Indenture" means that certain Indenture, dated as of August
23, 1996, by and between International and National City Bank, N.A., as
Trustee, with respect to the 11 5/8% Senior Notes due 2004 of International.
"Stockholders Agreement" means the Stockholders Agreement, dated as of
August 31, 1989, by and among the Issuer and the other Persons who are parties
thereto.
"Subscription Agreement" means that certain Stock Subscription Agreement,
dated as of August 31, 1989, among the Issuer, International and the other
Persons named on the signature pages thereof.
"Subsidiaries" means collectively Xxxxxx Sour Gas Tubulars, Inc., a
Delaware corporation, and the Foreign Subsidiaries.
"Tax Returns" means any return, report, information return, or other
document (including any related or supporting information) filed or required
to be filed with any governmental agency, department, commission, board,
bureau, or instrumentality in connection with the determination, assessment,
collection, or administration of any Taxes.
"Taxes" means all federal, state, local, or foreign taxes (including
excise taxes, occupancy taxes, employment taxes, unemployment taxes, ad
valorem taxes, custom duties, transfer taxes, and fees), levies, imposts,
fees, impositions, assessments, or other governmental charges of any nature
imposed upon a Person including all taxes or governmental charges imposed upon
any of the personal properties, real properties, tangible or intangible
assets, income, receipts, payrolls, transactions, stock transfers, capital
stock, net worth or franchises of a Person (including all sales, use,
withholding or other taxes which a Person is required to collect and/or pay
over to any government), and all related additions to tax, penalties or
interest thereon.
"Transaction Documents" mean collectively this Purchase Agreement, the
Redemption Agreement, the Escrow Agreement, the Exercise and Repurchase
Agreement, the Amended Stockholders Agreement and the Fifth Amendment to
Subscription Agreement.
"1996 10-K" has the meaning specified in Section 4.14.
ARTICLE II.
PURCHASE AND SALE
Section 1.021. Purchase of New Shares. Subject to the terms and
conditions set forth in this Purchase Agreement, on the Closing Date, the
Issuer shall issue and sell to the Purchasers the New Shares, and the
Purchasers shall purchase from the Issuer the New Shares. The purchase
obligation of the Purchasers shall be allocated among the Purchasers as
follows: (i) BCPII shall purchase 3,812,721 of the New Shares; (ii) BOCP
shall purchase 1,131,661 of the New Shares; and (iii) BFIP shall purchase
379,417 of the New Shares.
Section 1.022. Per Share Purchase Price. The purchase price of each
share of Common Stock sold to the Purchasers, as provided for in Section 2.01,
shall be Ten Dollars and Fifteen Cents ($10.15) ("Per Share Price").
Section 1.023. Aggregate Purchase Price. As full payment for the
issuance, sale, and delivery of the New Shares, the Purchasers shall pay the
aggregate amount of Fifty-Four Million Thirty-Six Thousand Five Hundred
Fifty-Nine Dollars and Eighty-Five Cents ($54,036,559.85) to the Issuer (the
"Aggregate Purchase Price"), to be paid in accordance with Section 3.02.
Section 1.024. Fair Consideration. The parties acknowledge and agree
that the consideration provided for in this Article II represents fair
consideration and reasonable equivalent value for the issuance and sale of the
New Shares and the transactions, covenants, and agreements set forth in this
Purchase Agreement, which consideration was agreed upon as the result of
arm's- length, good-faith negotiations among the parties and their respective
representatives.
Section 1.025. Use of Proceeds. The proceeds from the issuance and sale
of the New Shares shall be used by the Issuer solely for the redemption and
repurchase of the Common Stock pursuant to the Redemption Agreement and the
Redemption Offer, the redemption of the Option Shares and to pay related costs
and expenses.
ARTICLE III.
CLOSING
Section 1.031. Closing, Time and Place. The closing (the "Closing") of
the transactions contemplated herein shall take place at the offices of Ice
Xxxxxx Xxxxxxx & Xxxx, Indianapolis, Indiana at 11:00 A. M. (Eastern Standard
Time) on January 29, 1997 (the "Closing Date") or at such other time as shall
be mutually agreed by the Issuer and the Purchasers.
Section 1.032. Deliveries to the Purchasers at the Closing. At the
Closing and simultaneously with the deliveries to the Issuer specified in
Section 3.03, the Issuer shall deliver or cause to be delivered to the
Purchasers the following:
(a) Stock Certificates representing the New Shares issued in the
names of the Purchasers bearing the legend referred to in Section 5.05 and in
the Amended Stockholders Agreement;
(b) Certificates of Good Standing pertaining to the Issuer and
International issued by the Secretary of State of the State of Delaware and
dated within ten (10) days of the Closing Date;
(c) Certified copies of the Certificates of Incorporation, as
amended, of the Issuer and International issued by the Secretary of State of
the State of Delaware and dated within ten (10) days of the Closing Date;
(d) Copies of the By-laws of the Issuer and International certified
by the respective Secretaries of the Issuer and International and dated within
ten (10) days of the Closing Date;
(e) Certified copies of the resolutions of the Board of Directors
of the Issuer approving this Purchase Agreement, the Redemption Agreement, the
Escrow Agreement, the Exercise and Repurchase Agreement, the Redemption Offer
and the transactions contemplated thereby.
(f) One or more counterparts of the Amended Stockholders Agreement,
duly executed by the Issuer, International, Fund II, MLGAL and the Management
Holders;
(g) One or more counterparts of the Fifth Amendment to Subscription
Agreement, duly executed by all parties thereto.
(h) The certificate of the Issuer and International specified in
Section 9.01;
(i) The certificate of the Issuer specified in Section 9.02;
(j) The copies of the certificates of Fund II, MLGAL and the Option
Holders specified in Sections 9.03 and 9.04;
(k) The resignations of each director of the Issuer and
International (other than Xxxxxxx X. Xxxxxx);
(l) A certificate signed by the Secretary of the Issuer
acknowledging delivery by the Purchasers of the items set forth in Section
3.03; and
(m) Stockholders' consents signed by each of Fund II, MLGAL and the
Management Holders resolving to elect as directors of the Issuer and
International five nominees designated by the Purchasers and one nominee
designated by Fund II and MLGAL.
Section 3.03. Deliveries to Issuer at the Closing. At the Closing and
simultaneously with the deliveries to the Purchasers specified in Section
3.02, the Purchasers shall deliver or cause to be delivered to the Issuer the
following:
(a) The Aggregate Purchase Price by wire transfer in immediately
available federal funds to an account designated by the Issuer prior to the
Closing Date;
(b) One or more counterparts of the Amended Stockholders Agreement,
duly executed by each of the Purchasers;
(c) The certificate of the Purchasers specified in Section 8.01;
(d) The certificate of the Purchasers specified in Section 8.02;
and
(e) A certificate signed by a general partner of each of the
Purchasers acknowledging delivery by the Issuer of the items set forth in
Section 3.02.
ARTICLE IV.
JOINT AND SEVERAL REPRESENTATIONS
AND WARRANTIES OF THE ISSUER AND INTERNATIONAL
The Issuer and International hereby jointly and severally represent and
warrant to the Purchasers and each of them as follows:
Section 4.01. Organization; Good Standing; Qualification; and Power.
Each of the Issuer and International is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Subsidiaries is a corporation duly incorporated or organized,
validly existing and, to the extent recognized in such jurisdiction, in good
standing under the laws of the jurisdiction in which it is incorporated. Each
of the Issuer, International and each of the Subsidiaries has all requisite
corporate power and authority and all material governmental licenses,
authorizations, consents and approvals to own, lease and operate its
respective properties and to carry on its respective business or businesses as
is now being conducted. Each of the Issuer, International and each of the
Subsidiaries is duly qualified as a foreign corporation and is in good
standing to do business in every jurisdiction in which such qualification is
necessary because of the nature of the properties owned, leased or operated by
it or the nature of the businesses conducted by it, except for such
jurisdictions in which, in the aggregate, failure to so qualify would not have
a Material Adverse Effect on the Issuer, International and the Subsidiaries
taken as a whole.
Section 4.02. Authority. The execution and delivery of this Purchase
Agreement and each of the other Transaction Documents and the consummation of
the transactions contemplated hereby and thereby by the Issuer and
International, as applicable, have been authorized by all necessary corporate
action on the part of the board of directors and stockholders of the Issuer
and International, as applicable. The Redemption Offer has been authorized by
all necessary corporate action on the part of the board of directors and
stockholders of the Issuer. The Issuer and International have the full power
and authority to execute and deliver this Purchase Agreement and each of the
other Transaction Documents, as applicable, and to consummate the transactions
contemplated hereby and thereby. This Purchase Agreement and each other
Transaction Document to which the Issuer and/or International is a party
constitutes a valid and legally binding obligation of each of the Issuer and
International, enforceable against each of the Issuer and International in
accordance with its terms.
Section 4.03. No Conflict or Violation. The execution, delivery, and
performance of this Purchase Agreement and the other Transaction Documents by
the Issuer and International and the consummation of the Redemption Offer do
not and shall not: (a) violate the Certificate of Incorporation or bylaws of
the Issuer or International or the governing instruments any of the
Subsidiaries; or (b) violate any provision of law or any order, judgment, or
decree of any court or other governmental or regulatory authority applicable
to the Issuer, International or any of the Subsidiaries.
To the knowledge of the Issuer and International, there is no default by
any party to any of the material contracts, agreements and binding commitments
of the Corporation, International or any of the Subsidiaries which could
reasonably be expected to have a Material Adverse Effect on the Corporation,
International and the Subsidiaries taken as whole.
Section 4.04. Governmental Consents. No authorization, consent,
approval, exemption, or other action by or notice to or filing with any court
or administrative or governmental body (other than pursuant to the
Xxxx-Xxxxx-Xxxxxx Act) is required to permit the Issuer or International to
execute and deliver this Purchase Agreement or the other Transaction
Documents, to consummate the transactions contemplated by this Purchase
Agreement or the other Transaction Documents, to comply with and fulfill the
terms and conditions of this Purchase Agreement or the other Transaction
Documents, to issue and convey the New Shares to the Purchasers pursuant to
this Purchase Agreement, or to consummate the Redemption Offer.
Section 4.05. Capital Structure of the Corporation and Related Matters.
The total authorized capital stock of the Issuer consists of 22,000,000
shares, consisting of 20,000,000 shares of the Common Stock and 2,000,000
shares of the Preferred Stock. Of the total number of authorized shares of
capital stock of the Issuer, 6,574,263 are issued and 6,556,963 are
outstanding. The issued and outstanding shares of capital stock of the Issuer
consist entirely of shares of the Common Stock. Of the total number of
authorized but not outstanding shares of capital stock of the Issuer, 905,880
shares of the Common Stock are reserved for issuance pursuant to the terms of
the Option Plan. All outstanding shares of capital stock of the Issuer have
been duly authorized and validly issued and are fully paid and non-assessable.
No class of shares of capital stock of the Issuer is entitled to preemptive
rights. The Issuer has outstanding Options granted under the Option Plan for
the purchase of 687,114 shares of Common Stock, which Options are held by the
individuals and in the respective amounts set forth on Schedule 4.05 attached
hereto. Except for the Common Stock and the Options, the Issuer has no
outstanding shares of capital stock or securities convertible into or
exchangeable for any shares of its capital stock, nor, except for the Options,
does the Issuer, International or any of the Subsidiaries have outstanding any
options, warrants, agreements or commitments for the issuance or purchase,
redemption or other acquisition of any shares of capital stock of the Issuer
or any securities convertible into or exchangeable for any shares of capital
stock of the Issuer, other than the Issuer's agreement and commitment to
redeem its Common Stock pursuant to the Redemption Agreement and the
Redemption Offer and to redeem the Option Shares. The New Shares, when issued
pursuant to the terms and conditions of this Purchase Agreement, will be
validly issued, fully paid and non-assessable, and will be free of any
restrictions or limitations other than those (a) imposed by the Securities Act
and any applicable Blue Sky Law, and (b) provided for in the Amended
Stockholders Agreement.
Section 4.06. No Default; Third Party Consents. Assuming that Congress
Financial Corporation (Central) and CoreStates Bank N.A. have consented to the
Issuer and International executing and performing this Purchase Agreement and
the other Transaction Documents and the Issuer redeeming the Option Shares and
making and consummating the Redemption Offer, the execution, delivery, and
performance of this Purchase Agreement and the other Transaction Documents by
the Issuer and International and the consummation of the Redemption Offer do
not and shall not violate or result in a breach of or constitute (with due
notice or lapse of time or both) a default under any loan agreement, mortgage,
security agreement, indenture or other material agreement or instrument to
which the Issuer, International or any of the Subsidiaries is a party or by
which the Issuer, International or any of the Subsidiaries is bound or to
which any of their material properties or assets is subject. No
authorization, consent, approval, exemption or other action by or notice to
filing with any third party (other than Congress Financial Corporation
(Central) and CoreStates Bank N.A.) is required to permit the Issuer or
International to execute and deliver this Purchase Agreement, to consummate
the transactions contemplated by this Purchase Agreement or the other
Transaction Documents, to comply with and fulfill the terms and conditions of
this Purchase Agreement or the other Transaction Documents, to issue and
convey the New Shares to the Purchasers pursuant to this Purchase Agreement,
or to consummate the Redemption Offer.
Section 4.07. Subsidiaries. Schedule 4.07 attached hereto lists the
name of each of the Subsidiaries, its jurisdiction of incorporation or
organization and the beneficial and record owner or owners of its capital
stock. Separately set forth on Schedule 4.07 attached hereto are the names of
all other corporations, joint ventures or other entities in which the Issuer,
International or any of the Subsidiaries owns an equity interest (other than
publicly traded securities where beneficial ownership is less than 5%).
Except as set forth on Schedule 4.07 attached hereto, International or one of
the Subsidiaries owns of record and beneficially all of the ownership
interests of each of the Subsidiaries, except for qualifying shares owned by
directors of Foreign Subsidiaries, free and clear of all Liens and Adverse
Claims and free and clear of any other material limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such ownership interests) other than restrictions imposed under applicable
Federal and state securities laws, applicable foreign laws and applicable
charter provisions. All of the capital stock of each Subsidiary is duly
authorized, validly issued, fully paid and non-assessable, except to the
extent otherwise provided by foreign laws with respect to the Foreign
Subsidiaries. There are no outstanding options, warrants or other rights of
any kind to acquire any additional ownership interests of any of the
Subsidiaries, or securities convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to acquire any additional
ownership interests of any of the Subsidiaries, nor is any of the Subsidiaries
committed to issue any such option, warrant, right or security. Other than
pursuant to accommodation agreements relating to qualifying shares of
directors of Foreign Subsidiaries, there are no outstanding obligations of the
Issuer, International or any of the Subsidiaries to repurchase, redeem or
otherwise acquire any outstanding securities or other ownership interests of
any of the Subsidiaries, or securities convertible into or exchangeable for
shares of capital stock or other voting securities or ownership interests in
any of the Subsidiaries or options or other rights to acquire from the Issuer,
International or any of the Subsidiaries, any capital stock, voting securities
or other ownership interests in, or any securities convertible into or
exchangeable for any capital stock, voting securities or ownership interests
in any of the Subsidiaries.
Section 4.08. Financial Statements. True and complete copies of the
consolidated balance sheets, income statements and cash flow statements of
International and its subsidiaries, as audited by Coopers & Xxxxxxx, L.L.P.,
as at September 30 in each of the years 1996 and 1995 (collectively, the
"Audited Financial Statements"), are attached hereto as Schedule 4.08. The
Audited Financial Statements (including any related schedules and/or notes)
are true and correct in all material respects, have been prepared in
accordance with generally accepted accounting principles that were, except as
otherwise stated therein, consistently followed throughout the periods
involved, and show all material liabilities, direct and contingent, of
International and its subsidiaries required to be shown in accordance with
such principles. The balance sheets included in the Audited Financial
Statements fairly present the consolidated financial condition of
International and its subsidiaries as at the dates thereof, and the income
statements and cash flow statements therein fairly present the consolidated
results of the operations and cash flow for the period then ended of
International and its subsidiaries for the periods indicated.
Section 4.09. Absence of Certain Changes. Since September 30, 1996, and
except as set forth on Schedule 4.09 attached hereto, the Issuer,
International and the Subsidiaries have conducted their businesses in the
ordinary and usual course and there has not been (a) any event, occurrence,
development or state of circumstances or facts related to the business,
financial condition, capitalization or results of operations of the Issuer,
International or the Subsidiaries having, or which could reasonably be
expected to have, a Material Adverse Effect on the Issuer, International and
the Subsidiaries taken as a whole, (b) any damage, destruction or other
casualty loss (whether or not covered by insurance) having, or which would
reasonably be expected to have, a Material Adverse Effect on the Issuer,
International and the Subsidiaries taken as a whole, (c) except for
compensation increases in the ordinary course of business of the Issuer,
International or any of the Subsidiaries consistent with past practices, any
increase in the compensation payable or to become payable by the Issuer,
International or any of the Subsidiaries to any of its respective officers or
employees or any increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement made by the Issuer, International or any
of the Subsidiaries for or with any such officers or employees, (d) any labor
dispute having a Material Adverse Effect on the Issuer, International or any
of the Subsidiaries taken as a whole, or any material activity or proceeding
by a labor union or representative thereof to organize any employees of the
Issuer, International or any of the Subsidiaries, which employees were not
subject to a collective bargaining agreement at September 30, 1996, or any
material lockouts, strikes, slowdowns, work stoppages or threats thereof by or
with respect to such employees, (e) except as expressly contemplated by the
Transaction Documents or the Redemption Offer or in the ordinary course of
business, any material obligation or liability incurred by the Issuer,
International or any of the Subsidiaries or any creation or assumption by the
Issuer, International or any of the Subsidiaries of any material Lien on any
material asset or any making of any loan, advance or capital contribution to
or material investment in any Person other than loans, advances or capital
contributions to or investments in any of the Subsidiaries, (f) except as
expressly contemplated by the Transaction Documents, the Stock Subscription
Agreement, the Stockholders Agreement, the Redemption Offer or the Option
Plan, any declaration, setting aside or payment of any dividend, other
distribution in respect of the capital stock of the Issuer, International or
any of the Subsidiaries, any direct redemption, purchase or other acquisition
of such stock or granting or entering into of any option or commitment
relating to such stock, (g) except as expressly contemplated by the
Transaction Documents or the Redemption Offer, any payment, discharge or
satisfaction of any material obligation or liability of the Issuer,
International or any of the Subsidiaries, other than as required by changes in
generally accepted accounting principals, (h) any sale, transfer, or other
disposition of any material tangible or intangible asset of the Issuer,
International or any of the Subsidiaries, other than in the ordinary course of
business, (i) any material change in the accounting methods or practices
followed by the Issuer, International or any of the Subsidiaries, other than
in the ordinary course of business, or (j) except as expressly contemplated by
the Transaction Documents, the Stock Subscription Agreement, the Stockholders
Agreement, the Redemption Offer and the Option Plan, any agreement entered
into by the Issuer, International or any of the Subsidiaries to take any of
the actions specified in the foregoing subsections (a) through (i).
Section 4.10. Employee Benefit Matters.
(a) Schedule 4.10(a) attached hereto contains a true and complete
list of each "employee benefit plan" (within the meaning of Section 3(3) of
ERISA), including, without limitation, stock purchase, stock option,
severance, employment, change-in-control, fringe benefit, collective
bargaining, bonus, incentive, deferred compensation and all other material
employee benefit plans, agreements, programs, policies or other arrangements,
whether or not subject to ERISA (including any funding mechanism therefor now
in effect or required in the future as a result of the transaction described
in this Purchase Agreement or otherwise), whether formal or informal, oral or
written, legally binding or not, under which any employee or former employee
of the Issuer, International or any of the Subsidiaries has any present or
future material rights and under which the Issuer, International or any of the
Subsidiaries has any present or future material liability. All such plans,
agreements, programs, policies and arrangements shall be collectively referred
to as the "Employee Benefit Plans". The Issuer has made available to the
Purchasers copies of all Employee Benefit Plans and all other material
documents requested by the Purchasers relating to compliance of such Employee
Benefit Plans with applicable law (other than such documents that constitute
or contain attorney-client privileged information).
(b) Except as set forth in Schedule 4.10(b) attached hereto, all
Employee Benefit Plans are in compliance with the terms of the applicable plan
and the requirements prescribed by applicable law currently in effect with
respect thereto, and the Issuer, International or any of the Subsidiaries has
performed in all material respects all obligations required to be performed by
it under, and is not in default under or in violation of, any of the terms of
the Employee Benefit Plans. Each Employee Benefit Plan intended to be
"qualified" within the meaning of Section 401(a) of the Code has received a
favorable determination letter that such plan is so qualified and the trusts
maintained thereunder are exempt from taxation under Section 501(a) of the
Code. Neither the Issuer, International nor any of the Subsidiaries has
engaged in a "prohibited transaction," as such term is defined under Code
Section 4975 or ERISA Section 406, which would subject the Issuer,
International or the Purchasers to any taxes, penalties or other liabilities
under the Code or ERISA. No Employee Benefit Plan has incurred any
"accumulated funding deficiency" as such term is defined in ERISA Section 302
and Code Section 412 (whether or not waived). The Issuer, International or
any "ERISA Affiliate" (defined as any organization which is a member of a
controlled group of organizations within the meaning of Code Section 414) has
not incurred, and no event, transaction or condition has occurred or exists
which is reasonably expected to result in the occurrence of, any material
liability to the Pension Benefit Guaranty Corporation or any Employee Benefit
Plan (other than contributions to the plan and premiums to the Pension Benefit
Guaranty Corporation, which in either event are not in default) or any
material "withdrawal liability" within the meaning of Section 4201 of ERISA,
or any other material liability pursuant to Title I or IV of ERISA or the
provisions of the Code, in any such case relating to any Employee Benefit Plan
or any pension plan maintained by an ERISA Affiliate. No event has occurred
and no condition exists that would subject the Issuer or International, either
directly or by reason of their affiliation with any ERISA Affiliate, to any
material tax, fine or penalty imposed by ERISA, the Code or other applicable
laws, rules and regulations. For each Employee Benefit Plan with respect to
which a Form 5500 has been filed, no material change has occurred with respect
to matters covered by the most recent Form since the date thereof.
(c) Neither the Issuer nor International (nor any ERISA Affiliate)
maintains (nor within the past six years has maintained), contributes or
otherwise has any material liability in respect of any multiemployer plan as
defined in Section 3(37) of ERISA.
(d) Except as set forth in Schedule 4.10(d) attached hereto, no
Employee Benefit Plan provides benefits, including, without limitation, death
or medical benefits (whether or not insured), with respect to current or
former employees of Issuer, International or any ERISA Affiliate beyond their
retirement or other termination of service (other than (i) coverage mandated
by applicable law or (ii) death benefits or retirements benefits under any
"employee pension plan" as that term is defined in Section 3(2) of ERISA).
Except as set forth in Schedule 4.09(d) attached hereto, the consummation of
the transactions contemplated by this Purchase Agreement will not (i) entitle
any current or former director, employee or officer of Issuer, International
or any ERISA Affiliate to severance pay, unemployment compensation or other
payment or (ii) accelerate the time of payment or vesting, or increase the
amount of compensation due any such director, employee or officer. To the
knowledge of the Issuer and International, no payments made to any Personnel
pursuant to the transactions contemplated by this Purchase Agreement shall be
nondeductible under Section 280G of the Code.
(e) Except as set forth in Schedule 4.10(e) attached hereto, there
are no pending, or, to the Issuer's or International's knowledge, threatened
material claims by or on behalf of any Employee Benefit Plan, by any employee
or beneficiary covered under any such plan, or otherwise involving any such
plan (other than routine claims for benefits).
(f) The consummation of the transaction contemplated by this
Purchase Agreement shall not result in a prohibited transaction, as such term
is defined under Code Section 4975 or ERISA Section 406, which would subject
the Issuer, International or the Purchasers to any taxes, penalties or other
liabilities under the Code or ERISA.
Section 4.11. Collective Bargaining Agreements, Employment Agreements
and Benefit Plans. Schedule 4.11 attached hereto lists all employee benefit
plans, all union, collective bargaining or other employee association
agreements, and all other agreements other than the Option Plan and the
agreements related thereto, the Employee Benefit Plans set forth on Schedule
4.10 attached hereto and at-will relationships with employees, providing for
any material salary, bonus, benefits, management fees or other compensation to
be paid to any director, officer, employee or agent (other than sales agents)
of the Issuer, International or any of the Subsidiaries. Except as set forth
on Schedule 4.11 attached hereto, neither the Issuer, International nor any of
the Subsidiaries (a) has breached or otherwise failed to comply with any
material provision of any plan or agreement set forth in Schedule 4.11
attached hereto, (b) is subject to any unfair labor practice complaints
pending before the National Labor Relations Board or is subject to any current
union representation questions involving persons employed by the Issuer,
International or any of the Subsidiaries, (c) is, or has been within the last
three (3) years, subject to any material activities or proceedings of any
labor union (or representatives thereof) to organize any unorganized
employees, or (d) is, or has been within the last three (3) years, subject to
any material strikes, organized slowdowns, work stoppages or lockouts. Except
as set forth on Schedule 4.11 attached hereto, neither the Issuer,
International nor any of the Subsidiaries is in violation in any material
respect, and neither the Issuer, International nor any of the Subsidiaries has
received within the last three (3) years written notice of any claim with
respect to a material violation or alleged material violation, of any Federal
or state civil rights law, the Fair Labor Standards Act, as amended, the Age
Discrimination in Employment Act, as amended, the National Labor Relations
Act, as amended, the Occupational Safety and Health Act of 1973, as amended,
other than claims that have been settled or dismissed and for which neither
the Issuer, International nor any of the Subsidiaries has any material
continuing monetary obligation.
Section 4.12. Intellectual Property. Schedule 4.12 attached hereto
lists all material Intellectual Property owned, possessed or used by the
Issuer, International or any of the Subsidiaries and the general nature of the
Issuer's, International's, the Subsidiary's, and/or third party's rights
therein. For any Intellectual Property for which disclosure on Section
4.12attached hereto would impair the rights therein of the Issuer,
International or any of the Subsidiaries, a summary description of such
Intellectual Property appears on Schedule 4.12attached hereto. The Issuer,
International and each of the Subsidiaries has taken reasonable steps to
maintain, protect and safeguard its Intellectual Property, including all
Intellectual Property that would be impaired or jeopardized by improper
disclosure. Except as set forth on Schedule 4.12 attached hereto, to the
knowledge of the Issuer and International: (i) the Intellectual Property is
free and clear of all material Liens, encumbrances or other defects, and all
outstanding orders, judgments, decrees or other agreements that would
materially affect its value or use, and is not subject to any royalty or other
payment obligations to third parties; (ii) no other Intellectual Property is
required to permit the Issuer, International or any of the Subsidiaries to
conduct its business as presently conducted; (iii) the conduct of the
Issuer's, International's, and each of the Subsidiary's businesses as
presently conducted does not result in the material infringement or other
material impairment of the intellectual property rights of any third party
("Infringement"); (iv) the Issuer, International, and any of the Subsidiaries
has not received notice and is not otherwise aware of any action, suit or
proceeding alleging such Infringement; and (v) the transactions contemplated
by the Transaction Documents and the Redemption Offer will not materially
impair the Issuer's, International's, and any of the Subsidiaries' rights in
or to any Intellectual Property owned by a third party.
Section 4.13. Environmental Matters; Compliance with Laws. Except as
disclosed in Schedule 4.13 attached hereto:
(a) The Issuer, International and each of the Subsidiaries is in
material compliance with all applicable foreign, federal, state and local
laws, statutes, rules and regulations relating to the protection of the
environment or human health ("Environmental Laws") and holds, and is in
material compliance with, all material permits or other authorizations
required under applicable Environmental Laws in order to conduct the current
business or businesses of the Issuer, International and each of the
Subsidiaries; and
(b) To the knowledge of the Issuer and International, there is no
event or condition that would reasonably be expected to result in a material
liability to Issuer, International or any of the Subsidiaries under
Environmental Laws and that would be subject to disclosure pursuant to the
requirements of the Securities Act or the Exchange Act or the regulations
promulgated pursuant to those Acts, if those requirements were currently
applicable to the Issuer, International or any of the Subsidiaries.
Section 4.14. Certain Matters. International's Annual Report on Form
10-K for the fiscal year ending September 30, 1996 (the "1996 10-K") complied
as to form when filed in all material respects with the requirements of the
Exchange Act. The 1996 10-K as of the date of its filing, did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. Except as disclosed in Schedule 4.14 attached hereto
and other than as a result of the transactions contemplated by or resulting
from this Purchase Agreement, the Redemption Agreement or the Redemption
Offer, since September 30, 1996, there has been no event or circumstance of
which any individual person specified in Section 11.05(a) is aware that would
require any revision to the disclosure included in the 1996 10-K in response
to the following items of Regulation S-K: 101 (Description of Business), 102
(Description of Property), 103 (Legal Proceedings), 303 (Managements'
Discussion and Analysis of Financial Condition and Results of Operations), 304
(Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure), 401 (Directors, Executive Officers, Promoters and Control
Persons), 402 (Executive Compensation), 403 (Security Ownership of Certain
Beneficial Owners and Management) and 404 (Certain Relationships and Related
Transactions). All financial statements contained in the 1996 10-K or other
documents complied as to form and substance with all applicable rules and
regulations of the Commission. The Issuer has no assets other than the shares
of capital stock of International, and the Issuer has no material liabilities
or obligations other than those arising under the Stockholders Agreement, the
Stock Subscription Agreement, the Option Plan, the Transaction Documents, and
as contemplated by the Redemption Offer. International has filed all reports
and other documents required to be filed in accordance with the rules and
regulations of the Commission on a timely basis.
Section 4.15. Taxes. Since December 1, 1993, the Issuer, International
and each Subsidiary has or will have filed prior to or on the Closing Date all
material Tax returns, statements, reports and forms (including estimated Tax
returns and reports) required to be filed by it or them or on its or their
behalf on or before the Closing Date with any Taxing Authority (collectively,
the "Returns"). The Returns have been or will be filed when due in accordance
with all applicable laws and, as of the time of filing, were or will be
correct and complete in all material respects regarding the income, costs,
business, assets, operations, activities and status of the Issuer,
International and the Subsidiaries and any other items of information required
to be shown therein. Neither the Issuer, International nor any Subsidiary is
or will be delinquent in the payment of any Tax due and payable as shown on
any Return, or has requested or will request prior to or on the Closing Date
any extension of time within which to file or send any Return which has not
since been filed or sent. All tax years for the Issuer and International
prior to the fiscal year ending September 30, 1989 have been closed by
operation of law.
Section 4.16. Compliance with Laws. Except as set forth in Schedule
4.16 attached hereto, the Issuer, International and the Subsidiaries are not
in material violation of, and they have conducted their respective businesses
in all material respects in accordance with, all applicable laws, rules and
regulations, foreign and domestic, and neither the Issuer, International nor
any of the Subsidiaries is in default with respect to any order, judgment,
award, injunction or decree of any court, governmental authority, regulatory
authority or arbitrator.
Section 4.17. Broker's or Finder's Commissions. Except for the
Permitted Fees, no broker's or finder's fee or commission or investment
banking fee has been or will be payable, or asserted to be payable by the
Issuer, International or any of the Subsidiaries with respect to the issuance
and sale of the New Shares to the Purchasers or the transactions contemplated
by this Purchase Agreement or the Redemption Agreement as a result of any
action by or on behalf of the Issuer or International.
Section 4.18. Representations and Warranties. Subject to Section 9.01,
the representations and warranties contained in the foregoing Section 4.01
through Section 4.17 of this Purchase Agreement, inclusive, are made as of the
date of this Purchase Agreement and as of the Closing Date.
Notwithstanding any other provision of this Purchase Agreement or
otherwise, neither the Issuer nor International shall be deemed to have made
any representation or warranty other than those expressly made in Sections
4.01 through 4.17 hereof. Without limiting the generality of the foregoing,
and notwithstanding any otherwise express representation or warranty made by
the Issuer and International in Sections 4.01 through 4.17 hereof, neither
makes any representation and warranty to the Purchasers with respect to:
(a) any projections, estimates, or budgets heretofore delivered to
or made available to the Purchasers of future revenues, expenses or
expenditures, results of operations, profitability, budgets, market conditions
or new developments; or
(b) any other information or documents made available to the
Purchasers or their counsel, accountants or advisers with respect to the
Issuer or International, except as expressly covered by a representation or
warranty contained in Sections 4.01 through 4.17 hereof.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers hereby jointly and severally represent and warrant to the
Issuer and International and each of them as follows:
Section 5.01. Organization; Good Standing; Qualification; and Power.
Each of BCPII, BOCP and BFIP is a limited partnership duly organized and
existing in good standing under the laws of the State of Delaware, the Cayman
Islands and the State of Delaware, respectively. Each of BCPII, BOCP and BFIP
has all requisite power and authority and all material governmental licenses,
authorizations, consents and approvals to own, lease and operate its
respective properties and to carry on its respective business or businesses as
now being conducted. Each of BCPII, BOCP and BFIP is duly qualified as a
foreign limited partnership and is in good standing to do business in every
jurisdiction in which such qualification is necessary because of the nature of
the properties owned, leased or operated by it or the nature of the businesses
conducted by it, except in such jurisdictions in which, in the aggregate, the
failure to so qualify would not have a Material Adverse Effect on it.
Section 5.02. Authority. Each of the Purchasers has the full power and
authority to execute and deliver this Purchase Agreement and to consummate the
transactions contemplated hereby. This Purchase Agreement constitutes a valid
and legally binding obligation of each of the Purchasers, enforceable against
each Purchaser in accordance with its terms.
Section 5.03. No Conflict or Violation. The execution, delivery, and
performance of this Purchase Agreement by the Purchasers do not and shall not:
(a) violate the agreement of limited partnership of any Purchaser; (b) violate
any provision of law or any order, judgment, or decree of any court or other
governmental or regulatory authority applicable to any Purchaser; and (c)
violate or result in a breach of or constitute (with due notice or lapse of
time or both) a default under any loan agreement, mortgage, security
agreement, indenture, or other material agreement or instrument to which any
Purchaser is a party or by which any Purchaser is bound or to which any of its
material properties or assets is subject.
Section 5.04. No Consent. No authorization, consent, approval,
exemption, or other action by or notice to or filing with any court or
administrative or governmental body (other than pursuant to the
Xxxx-Xxxxx-Xxxxxx Act) or any third party is required to permit any of the
Purchasers to execute and deliver this Purchase Agreement, to consummate the
transactions contemplated by this Purchase Agreement, to comply with and
fulfill the terms and conditions of this Purchase Agreement, or to purchase
the New Shares.
Section 5.05. Investment Intent. Each of the Purchasers is acquiring
the New Shares for its own account for the purpose of investment and not with
a view to, or for sale in connection with, any distribution thereof within the
meaning of the Securities Act (subject to the disposition of the New Shares
remaining in the Purchasers control). Each of the Purchasers will not sell or
otherwise dispose of any of the New Shares in a manner which would require
registration under the Securities Act or any applicable Blue Sky Law unless
such registrations are effected. Each of the Purchasers acknowledges and
agrees that the certificates representing the New Shares shall bear a legend
in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE OR FOREIGN
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED EXCEPT IN
COMPLIANCE THEREWITH. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 29, 1997, COPIES OF
WHICH WILL BE FURNISHED BY XXXXXX HOLDINGS, INC. OR ANY SUCCESSOR THERETO UPON
REQUEST AND WITHOUT CHARGE."
Section 5.06. Bankruptcy. None of Purchasers is involved in any
proceedings by or against it in any court under bankruptcy law or any other
insolvency or debtor's relief law, whether Federal, state or foreign, or for
the appointment of a trustee, receiver, liquidator, assignee, sequestrator, or
other similar official.
Section 5.07. ERISA. No part of the funds used by any of the Purchasers
to pay the Aggregate Purchase Price constitutes or will constitute assets
allocated to any separate account (as defined in Section 3(17) of ERISA,
including any pooled separate accounts) maintained by the Purchasers or any
Affiliate of any of the Purchasers, in which one or more of the employee
benefit plans set forth in Schedule 5.07 attached hereto participates in the
aggregate to the extent of more than ten percent (10%) of the value of such
separate account.
Section 5.08. Access to Information. Each of the Purchasers has
received and reviewed a copy of the Final Prospectus of International, dated
August 20, 1996, relating to the public offering of the 11 5/8% Senior Notes
due 2004 of International, a copy of the press release issued by International
on October 18, 1996, a copy of the 1996 10-K, a copy of the press release
issued by International on January 7, 1996, a copy of the Form 8-K filed with
the Commission on January 22, 1996, and a copy of the Senior Note Indenture.
Each of the Purchasers has had an opportunity to ask questions of, and receive
answers from, the management of the Issuer and International concerning the
operations and financial condition of the Issuer, International and the
Subsidiaries and the Business in order to make an informed decision to
purchase the New Shares.
Section 5.09. Sophistication of the Purchasers. Each of the Purchasers
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in the New Shares.
Section 5.10. Accredited Investor. Each of the Purchasers is an
"accredited investor" as that term is defined by Rule 501 of Regulation D
promulgated by the Commission.
Section 5.11. Brokers or Finders Commissions. Except for the Permitted
Fees, no broker's or finder's fee or commission or investment banking fee has
been or will be payable, or asserted to be payable by any of the Purchasers,
the Issuer, International or any of the Subsidiaries with respect to the
purchase of the New Shares from the Issuer or the transactions contemplated by
this Purchase Agreement as a result of any action by or on behalf of any of
the Purchasers.
Section 5.12. Representations and Warranties. Subject to Section 8.01,
the representations and warranties contained in the foregoing Section 5.01
through 5.11 of this Purchase Agreement, inclusive, are made as of the date of
this Purchase Agreement and as of the Closing Date.
ARTICLE VI.
COVENANTS OF THE ISSUER AND INTERNATIONAL
Section 6.01. Actions Before the Closing Date. From the date hereof
until the Closing Date, the Issuer shall, and shall cause International and
the Subsidiaries to:
(a) (i) continue to conduct the affairs of the Issuer,
International and the Subsidiaries in the ordinary course consistent with past
practices (ii) not make any payments (including without limitation any
dividend payments) to or in respect of their respective stockholders,
directors, or Personnel, (iii) not grant any increase, or announce any
increase, in benefits payable by the Issuer, International or any of the
Subsidiaries to any Personnel under any Employee Benefit Plan, or establish or
increase, or promise to increase or accelerate, the payment or vesting of any
benefits under any Employee Benefit Plan with respect to Personnel, in any
case except (A) as required by law, or (B) that involve only increases
consistent with past practices; (iv) not make any change to the certificate of
incorporation (or other organizational document) or by-laws of the Issuer,
International or any of the Subsidiaries, (v) not issue any shares of capital
stock of the Issuer, International or any of the Subsidiaries or grant any
options or rights with respect thereto; and (vi) not take any action which
shall cause the Issuer or International to be in breach of any representation,
warranty, covenant or agreement contained in any Transaction Document or cause
the Issuer or International to be unable to perform in any material respect
its obligations hereunder or thereunder;
(b) afford to the Purchasers, and to the accountants, counsel,
actuaries and representatives of the Purchasers, full and complete access,
upon reasonable notice and during normal business hours prior to the Closing
Date (or the earlier termination of this Purchase Agreement pursuant to
Article X), to all books and records relating to the Issuer, International,
the Subsidiaries and the Business and make, during that period and upon the
preceding terms, their respective Personnel, counsel, actuaries and
independent accountants available to discuss with the Purchasers and their
counsel, actuaries and representatives those aspects of the Issuer,
International, the Subsidiaries and the Business which the Purchasers and
their counsel, actuaries and representatives may reasonably deem necessary or
desirable; and
(c) use commercially reasonable best efforts (subject to any
conditions set forth in this Purchase Agreement) to perform and satisfy all
obligations, covenants, agreements and conditions to Closing to be performed
or satisfied under this Purchase Agreement by the Issuer, International or the
Subsidiaries as the case may be, including action necessary to obtain all
consents and approvals of third parties required to be obtained by the Issuer
or International to effect the transactions contemplated by this Purchase
Agreement.
Section 6.02. Stand Still. Except as expressly provided for in the
Transaction Documents or as expressly contemplated by the Redemption Offer, so
long as this Purchase Agreement is in effect and until the Closing, the Issuer
shall not, directly or indirectly, solicit any inquiries or proposals or enter
into or continue any discussions, negotiations, or agreements relating to the
sale or exchange of securities of the Issuer or International, or the merger
or consolidation of the Issuer or International with, or any direct or
indirect disposition of a significant amount of the Business to, any Person
other than Purchasers, or provide any assistance or any information to or
otherwise cooperate with any Person in connection with any such inquiry,
proposal, or transaction.
Section 6.03. Notification of Certain Matters. The Issuer shall give
prompt notice to the Purchasers of (a) the occurrence, or failure to occur, of
any event which occurrence or failure would be likely to cause any
representation or warranty of the Issuer or International contained in this
Purchase Agreement to be untrue or inaccurate in any material respect at any
time from the date hereof to the Closing Date, and (b) any failure of the
Issuer or International to comply with or satisfy any covenant, condition, or
agreement to be complied with or satisfied by the Issuer or International
hereunder. The Issuer and International shall use their commercially
reasonable best efforts to remedy promptly any such failure.
Section 6.04. Redemption Offer. The Issuer shall, as soon as
practicable after the Closing Date, commence the Redemption Offer. The Issuer
shall use its commercially reasonable best efforts to consummate the
Redemption Offer on substantially the same terms and conditions as are stated
in the Consent Solicitation and Offer to Redeem for Cash set forth as Exhibit
I-E hereto as soon as legally permissible. The Issuer agrees that it shall
not deliver any other offer to redeem or purchase shares of capital stock
(other than pursuant to the Exercise and Repurchase Agreement) or any other
document in connection with the Redemption Offer without the prior approval of
the Purchasers, which approval shall not be unreasonably withheld or delayed.
ARTICLE VII.
COVENANTS OF THE PURCHASERS
Section 7.01. Actions Before the Closing Date. None of the Purchasers
shall take any action which shall cause it to be in breach of any
representation, warranty, covenant, or agreement contained in this Purchase
Agreement or cause it to be unable to perform in any material respect its
obligations hereunder, and each of the Purchasers shall use commercially
reasonable best efforts (subject to any conditions set forth in this Purchase
Agreement) to perform and satisfy all conditions to Closing to be performed or
satisfied by such Purchaser under this Purchase Agreement, including action
necessary to obtain all consents and approvals of third parties required to be
obtained by such Purchaser to effect the transactions contemplated by this
Purchase Agreement.
Section 7.02. Confidentiality. If the Closing hereunder shall not
occur, (a) none of the Purchasers shall directly or indirectly use, for its
own benefit or otherwise, or disclose to any other Person any of the
information acquired from the Issuer, International, the Subsidiaries or their
representatives pursuant to this Purchase Agreement or in connection with the
transactions contemplated hereby, except to the extent that such information
(i) is or becomes generally available to the trade or the public other than as
a result of a disclosure by such Purchaser or its representatives, (ii)
becomes available to the Purchaser from a source other than the Issuer,
International, the Subsidiaries or their representatives, which source was not
itself bound by a confidentiality agreement with the Issuer, International,
the Subsidiaries or their representatives, or (iii) is required to be
disclosed by law or order of a court or governmental body, and (b) upon the
request of Issuer or International, each Purchaser shall return to the Issuer
or International, as the case may be, all documents and copies thereof
delivered to such Purchaser by the Issuer, International, the Subsidiaries or
their representatives hereunder or in connection herewith. The obligations
set forth above shall be in addition to and shall not supersede the
obligations set forth in that certain Confidentiality Agreement, dated
November 8, 1996, by and among the Issuer, International and the Blackstone
Group.
Section 7.03. Notification of Certain Matters. The Purchasers shall
give prompt notice to the Issuer and International of (a) the occurrence, or
failure to occur, of any event which occurrence or failure would be likely to
cause any representation or warranty of the Purchasers contained in this
Purchase Agreement to be untrue or inaccurate in any material respect at any
time from the date hereof to the Closing Date, and (b) any failure of any of
the Purchasers to comply with or satisfy any covenant, condition, or agreement
to be complied with or satisfied by any of the Purchasers hereunder. Each of
the Purchasers shall use commercially reasonable best efforts to remedy
promptly any such failure.
Section 7.04. Financial Accommodations. The Purchasers shall use
commercially reasonable efforts to arrange for International to obtain (a)
such financing as shall be required for International to (i) satisfy its
obligations in respect of the Change of Control Offer and (ii) make such
capital expenditures and investments and consummate such acquisitions as shall
be approved by International's Board of Directors and stockholders and (b) an
increase of $10,000,000 in its existing line of credit from Congress Financial
Corporation (Central) and CoreStates Bank N.A.
ARTICLE VIII.
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ISSUER
The obligation of the Issuer to issue and sell the New Shares to the
Purchasers on the Closing Date is subject to the fulfillment, at or before the
Closing, of the following conditions, any one or more of which may be waived
in writing by the Issuer in its sole discretion:
Section 8.01. Representations and Warranties of the Purchasers. All
representations and warranties made by the Purchasers in this Purchase
Agreement shall be true and correct on and as of the Closing Date as if made
by the Purchasers on and as of that date, and the Issuer shall have received a
certificate to that effect from the Purchasers dated the Closing Date.
Section 8.02. Performance of the Obligations of the Purchasers. The
Purchasers shall have performed in all material respects all obligations
required under this Purchase Agreement to be performed by the Purchasers on or
before the Closing Date, and the Issuer shall have received a certificate to
that effect from the Purchasers dated the Closing Date.
Section 8.03. No Violation of Orders. No preliminary or permanent
injunction or other order issued by any court or governmental or regulatory
authority, domestic or foreign, that declares this Purchase Agreement or any
of the other Transaction Documents or the Redemption Offer invalid or
unenforceable in any respect or prevents the consummation of the transactions
contemplated hereby or thereby shall be in effect, and no proceeding relating
to any order shall have commenced.
Section 8.04. Required Approvals. All consents and approvals of any
governmental authority or any third party (including Congress Financial
Corporation (Central) and Corestates Bank N.A.) necessary to permit the
consummation of the transactions contemplated by this Purchase Agreement or
any of the other Transaction Documents, including the Redemption Offer, shall
have been received. The applicable waiting period, including extensions
thereof, under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated
early.
Section 8.05. Amended Stockholders Agreement. Each of the Purchasers
shall have duly executed the Amended Stockholders Agreement.
Section 8.06. Section 280G Approval. Those stockholders of the Issuer
who own more than 75% of the voting power of all outstanding stock of the
Issuer immediately before the Closing Date shall have approved, pursuant to a
vote satisfying the requirements of Section 280G(b)(5) of the Code, all
payments and deemed payments that, absent such approval, would be "parachute
payments" within the meaning of Code Section 280G(b)(2).
ARTICLE IX.
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASERS
The obligation of the Purchasers to purchase, acquire, and accept the New
Shares from the Issuer on the Closing Date is subject to the fulfillment, at
or before the Closing, of the following conditions, any one or more of which
may be waived in writing by the Purchasers in their sole discretion:
Section 9.01. Representations and Warranties of the Issuer and
International. All representations and warranties made by the Issuer and
International in this Purchase Agreement and the other Transaction Documents
shall be true and correct on and as of the Closing Date as if made by the
Issuer and International on and as of such date, and the Purchasers shall have
received a certificate to that effect from the Issuer and International dated
the Closing Date; provided, however, such certificate shall be subject to
Section 10.03.
Section 9.02. Performance of the Obligations of the Issuer. The Issuer
shall have performed in all material respects all obligations required under
this Purchase Agreement to be performed by the Issuer on or before the Closing
Date, and the Purchasers shall have received a certificate to that effect from
the Issuer dated the Closing Date.
Section 9.03. Certificates of Fund II and MLGAL. The Purchasers shall
have received copies of the certificates delivered by Fund II and MLGAL
pursuant to Section 3.02(c) of the Redemption Agreement related to their
representations and warranties in the Redemption Agreement.
Section 9.04. Certificate of the Option Holders. The Purchasers shall
have received copies of the certificates delivered by the Option Holders
pursuant to Section 7 of the Exercise and Repurchase Agreement related to the
Option Holders' representations and warranties in the Exercise and Repurchase
Agreement.
Section 9.05. No Violation of Orders. No preliminary or permanent
injunction or other order issued by any court or governmental or regulatory
authority, domestic or foreign, which declares this Purchase Agreement or any
of the other Transaction Documents or the Redemption Offer invalid or
unenforceable in any respect or prevents the consummation of the transactions
contemplated hereby or thereby shall be in effect, and no proceeding relating
to any such order shall have commenced.
Section 9.06. Required Approvals. All consents and approvals of any
governmental authority or any third party (including Congress Financial
Corporation (Central) and Corestates Bank N.A.) necessary to permit the
consummation of the transactions contemplated by this Purchase Agreement or
any of the other Transaction Documents, including the Redemption Offer, shall
have been received. The applicable waiting period, including extensions
thereof, under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated
early.
Section 9.07. Amended Stockholders Agreement. The Issuer, Fund II,
MLGAL and the Management Holders shall have duly executed the Amended
Stockholders Agreement.
Section 9.08. Fifth Amendment to Subscription Agreement. The Issuer,
International and the Management Holders shall have duly executed the Fifth
Amendment to Subscription Agreement.
Section 9.09. Other Transactions. The Stock Redemption Agreement, the
Escrow Agreement and the Exercise and Repurchase Agreement shall have been
executed and delivered by all parties thereto and all conditions precedent to
the performance of the parties' obligations thereunder shall have been
satisfied or waived.
Section 9.10. Waiver of Management Holders' Bid Right. The Management
Holders shall have waived their right to bid granted in Section 2.5 of the
Stockholders Agreement.
Section 9.11. Waiver of Right of First Refusal. The Holders (as defined
in the Subscription Agreement) shall have waived their right of first refusal
in Section 9.4 of the Subscription Agreement.
ARTICLE X.
TERMINATION
Section 10.01. Conditions of Termination.
(a) Notwithstanding anything to the contrary contained herein, this
Purchase Agreement may be terminated, and the transactions contemplated hereby
may be abandoned, at any time before completion of the Closing, by mutual
consent of the Issuer and the Purchasers. This Purchase Agreement shall
terminate without action by any party hereto if completion of the Closing does
not occur on or before February 28, 1997, if any condition to the Closing
shall not have been satisfied or waived by such date; provided, however, that
this Purchase Agreement may not be terminated by a party if the failure of the
Closing to occur by such date is due to the breach of any provision hereof by
such party.
(b) This Purchase Agreement may, by notice given in the manner
hereinafter provided, be terminated and abandoned at any time prior to
completion of the Closing:
(i) by the Issuer or International if there has been a material
misrepresentation in Article V hereof by the Purchasers (or any of them) or a
material default or breach by the Purchasers (or any of them) with respect to
the Purchasers' due and timely performance of any of the Purchasers' covenants
and agreements contained in this Purchase Agreement, and such
misrepresentation, default, or breach shall not have been cured within ten
(10) days after receipt by the Purchasers of notice specifying particularly
such misrepresentation, default, or breach; or
(ii) by the Purchasers if there has been a material
misrepresentation in Article IV hereof by the Issuer or International or a
material default or breach by the Issuer or International with respect to the
Issuer's or International's due and timely performance of any of the Issuer's
or International's covenants and agreements contained in this Purchase
Agreement, and such misrepresentation, default or breach shall not have been
cured within ten (10) days after receipt by the Issuer of notice specifying
particularly such misrepresentation, default or breach.
Section 10.02. Effect of Termination. In the event of termination
pursuant to Section 10.01, this Purchase Agreement shall terminate and have no
further effect except for the provisions set forth in Sections 4.17, 5.11,
7.02 and 11.02 which shall remain in effect for a period of ten (10) years
following the termination date (but no party shall have any obligation to pay
the Permitted Fees if this Purchase Agreement is terminated), with no
liability on the part of any party hereto, other than liability arising out of
a material breach by that party of any representation, warranty, covenant, or
agreement contained herein prior to the termination date.
Section 10.03. Exclusive Remedy. In the event of any breach of the
representations and warranties set forth in Article IV of this Purchase
Agreement (other than those contained in Sections 4.01 through 4.05,
inclusive, and Section 4.17) or any breach or misrepresentation in the
certificate delivered by the Issuer and International pursuant to Section 9.01
with respect to the representations and warranties set forth in Article IV of
this Purchase Agreement (other than those contained in Sections 4.01 through
4.05, inclusive, and Section 4.17), the Purchasers' sole and exclusive remedy
shall be to terminate this Purchase Agreement prior to completion of the
Closing pursuant to Section 10.01 (b)(ii) of this Purchase Agreement, and no
legal action at law or in equity shall be initiated or maintained against the
Issuer, International or any other Person which is directly or indirectly
related to a breach of such representations and warranties (or a breach or
misrepresentation in such certificate related to such representations and
warranties), including a breach of the obligations of the Issuer and
International under Section 6.01 or Section 6.03.
ARTICLE XI.
MISCELLANEOUS
Section 11.01. Public Announcements. No party shall make any press
release or public announcement concerning the transactions contemplated by
this Purchase Agreement prior to or after the Closing Date, except as required
by law or as agreed upon by the Issuer and the Purchasers.
Section 11.02. Expenses. The Issuer shall cause International to pay on
the Closing Date all legal expenses of the parties incurred in connection with
this Purchase Agreement, and the Issuer shall cause International to pay on
the Closing Date all of the Permitted Fees.
Section 11.03. Notices. All notices, requests, demands, and other
communications under this Purchase Agreement shall be in writing and shall be
deemed to have been duly given (a) on the date of service if served personally
on the party to whom notice is to be given, (b) on the day of transmission if
sent via facsimile transmission to the facsimile number given below, provided
that telephonic confirmation of receipt is obtained promptly after completion
of transmission, (c) on the day after delivery to a nationally recognized
overnight courier service or the Express Mail service maintained by the United
States Postal Service, or (d) on the fifth (5th) day after mailing, if mailed
to the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and addressed as follows:
If to Issuer or International, to:
Xxxxxx International, Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel. No. 000-000-0000
Fax No. 000-000-0000
With a copy to:
Xxxx X. Xxxxxxxxxx, Esq.
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, XX 00000
Tel. No. 000-000-0000
Fax No. 000-000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
If to any of the Purchasers, to:
The Blackstone Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel. No. (000) 000-0000
Fax. No. (000) 000-0000
which copy alone shall not constitute notice for the purposes of this
Purchase Agreement.
Any party may change its address for the purpose of this Section 11.03 by
giving the other parties written notice of its new address in the manner set
forth above.
Section 11.04. Headings. The article, section, and paragraph headings
in this Purchase Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Purchase Agreement.
Section 11.05. Construction.
(a) As used herein, "knowledge of the Issuer," "knowledge of
International" and "knowledge of the Issuer and International" shall mean the
actual, collective knowledge of Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxxx
X. Xxxxx, August A. Cijan, F. Xxxxx Xxxxx, Xxxxx X. XxXxxx, Xxxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxxxxx.
(b) The words "hereof", "herein", "hereto", "hereunder" and
"hereinafter" and words of similar import, when used in this Purchase
Agreement, shall refer to this Purchase Agreement as a whole and not to any
particular provision of this Purchase Agreement.
(c) The parties have participated jointly in the negotiation and
drafting of this Purchase Agreement, and, in the event of an ambiguity or a
question of intent or a need for interpretation arises, this Purchase
Agreement shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any of the provisions of this Purchase
Agreement.
(d) Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise.
(e) The word "including" means "including, without limitation."
Section 11.06. Severability. If any provision of this Purchase
Agreement is declared by any court or other governmental body to be null,
void, or unenforceable, this Purchase Agreement shall be construed so that the
provision at issue shall survive to the extent it is not so declared and that
all of the other provisions of this Purchase Agreement shall remain in full
force and effect.
Section 11.07. Entire Agreement. This Purchase Agreement, the Stock
Redemption Agreement and the Escrow Agreement (and the exhibits and schedules
hereto and thereto) contain the entire understanding among the parties hereto
with respect to the transactions contemplated hereby and supersedes and
replaces all prior and contemporaneous agreements, understandings,
representations or warranties, oral or written, with regard to those
transactions. All Exhibits and Schedules hereto are expressly made a part of
this Purchase Agreement as fully as though completely set forth herein.
Section 11.08. Amendments; Waivers. This Purchase Agreement may be
amended or modified, and any of the terms, covenants, representations,
warranties, or conditions hereof may be waived, only by a written instrument
executed by the parties hereto, or in the case of a waiver, by the party
waiving compliance. Any waiver by any party of any condition, or of the
breach of any provision, term, covenant, representation, or warranty contained
in this Purchase Agreement, in any one or more instances, shall not be deemed
to be or construed as a further or continuing waiver of any condition or of
the breach of any other provision, term, covenant, representation, or warranty
of this Purchase Agreement.
Section 11.09. Parties in Interest. Nothing in this Purchase Agreement
is intended to confer any rights or remedies under or by reason of this
Purchase Agreement on any Person other than the Issuer, International and the
Purchasers and their respective successors and permitted assigns.
Section 11.10. Successors and Assigns. No party hereto shall assign or
delegate this Purchase Agreement or any rights or obligations hereunder
without the prior written consent of the other parties hereto, and any
attempted assignment or delegation without prior written consent shall be void
and of no force or effect. This Purchase Agreement shall inure to the benefit
of and shall be binding upon the successors and permitted assigns of the
parties hereto.
Section 11.11. Governing Law. This Purchase Agreement shall be
construed and enforced in accordance with, and governed by, the laws of the
State of New York applicable to contracts made and to be performed in such
state.
Section 11.12. Counterparts. This Purchase Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
shall together constitute the same instrument.
Section 11.13. Survival. The representations and warranties contained
in Article IV of this Purchase Agreement (other than those in Sections 4.01
through 4.05, inclusive, and in Section 4.17) and contained in, or deemed
contained in, the certificate delivered by the Issuer and International
pursuant to Section 9.01 (other than the confirmation of the representations
and warranties made in Sections 4.01 through 4.05, inclusive, and in Section
4.17) shall expire on the Closing Date immediately following the Closing. The
representations and warranties in Section 4.01 through 4.05, inclusive, and
Section 4.17 of this Purchase Agreement and in Article V of this Purchase
Agreement shall survive the Closing for a period of three (3) years.
Section 11.14. Subsequent Documentation. At any time and from time to
time after the Closing Date, the Issuer shall, upon the request of the
Purchasers, and the Purchasers shall, upon the request of the Issuer, promptly
execute, acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, such further instruments and other documents, and perform or cause
to be performed such further acts, as may be reasonably required to evidence
or effectuate the issuance, sale, and delivery hereunder of the New Shares,
the performance by the parties of any of their other respective obligations
under this Purchase Agreement, and to carry out the purposes and intent of
this Purchase Agreement.
Section 11.15. Specific Performance. Each of the parties agrees that
damages for a breach of or default under this Purchase Agreement would be
inadequate and that in addition to all other remedies available at law or in
equity the parties and their successors and assigns shall be entitled to
specific performance or injunctive relief, or both, in the event of a breach
or a threatened breach of this Purchase Agreement.
(The remainder of this page intentionally left blank.)
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be
executed by their duly authorized representatives, this Purchase Agreement as
of the date first above written.
"PURCHASERS"
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C., Its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Member
BLACKSTONE OFFSHORE
CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C., Its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Member
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C., Its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, Member
"ISSUER"
XXXXXX HOLDINGS, INC.
By: /s/ X X Xxxxxx
Its: Vice President, Finance
"INTERNATIONAL"
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: President
Listed below is a summary of the Schedules and Exhibits to the Stock
Purchase Agreement. Copies of the Schedules and Exhibits may be obtained upon
request to the Registrant.
1. Schedule 4.05-List of Option Holders
2. Schedule 4.07-Subsidiaries
3. Schedule 4.08-Financial Statements
4. Schedule 4.09-Absence of Certain Changes
5. Schedule 4.10(a)-Employee Benefit Plans
6. Schedule 4.10(b)-Employee Benefit Plan Funding and Compliance
7. Schedule 4.10(d)-Retiree Benefits
8. Schedule 4.10(e)-Material Claims
9. Schedule 4.11-Collective Bargaining Agreements,Employment
Agreements and Benefit Plans
10. Schedule 4.12-Intellectual Property
11. Schedule 4.13-Environmental Matters; Compliance with Laws
12. Schedule 4.14-Certain Matters
13. Schedule 4.16-Compliance with Laws
14. Schedule 5.07- ERISA
15. Exhibit I-A- Amended Stockholders Agreement
16. Exhibit I-B-Exercise and Repurchase Agreement
17. Exhibit I-C- Fifth Amendment to Stock Subscription Agreement
18. Exhibit I-D- Redemption Agreement
19. Exhibit I-E- Redemption Offer
