EXHIBIT 99.5
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June
3, 2005, by and among XXXXXX CAPITAL MANAGEMENT, LLC ("FCM") and XXXXX X.
XXXXXX, as sellers (collectively, the "Sellers"), and BARINGTON COMPANIES EQUITY
PARTNERS, L.P. ("Barington"), STARBOARD VALUE & OPPORTUNITY FUND, LLC AND
PARCHE, LLC, as purchasers (collectively, the "Purchasers").
W I T N E S S E T H
WHEREAS, the Sellers desire to sell, and the Purchasers desires to
buy, all of the Shares (as hereinafter defined) at the Purchase Price (as
hereinafter defined) upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
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DEFINITIONS
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"Affiliate" shall mean, with respect to any Person, a Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person; provided, however, that neither the Company nor any of the
Sellers shall be deemed to be an Affiliate of any Purchaser or of any
Purchaser's Affiliates. As used in the immediately preceding sentence, "control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Claim" shall having the meaning set forth in Section 4.1 of this
Agreement.
"Company" shall mean Xxxxxxxx.xxx, Inc., a Delaware corporation.
"Common Stock" shall mean the common stock, par value $.0001 per
share, of the Company.
"Person" shall mean and include any individual, partnership, joint
venture, corporation, trust, unincorporated organization or association or any
other entity or association of any kind and any governmental authority.
"Purchase Price" shall mean $10,500,000, in cash.
"Related Person" shall have the meaning set forth in Section 4.1 of
this Agreement.
"Settlement Date" shall mean June 8, 2005, the third business day
after the date of this Agreement.
"Shares" shall have the meaning set forth in Section 2.1 of this
Agreement.
ARTICLE II
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SALE OF SHARES AND TERMS OF PAYMENT
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2.1 Purchase and Sale of the Shares. Simultaneously with the
execution and delivery of this Agreement, Sellers agree to sell, assign and
transfer to the Purchasers 1,500,000 shares of Common Stock (the "Shares"), free
and clear of all liens, security interests, claims, charges and encumbrances and
restrictions of any kind ("Liens") (other than restrictions on the transfer of
the Shares arising under applicable Federal or state securities laws), and the
Purchasers, jointly and severally, agree to purchase the Shares for an amount in
cash equal to the Purchase Price. On the Settlement Date, (i) the Sellers shall
deliver to the Purchasers the Shares free and clear of all Liens and (ii) the
Purchasers shall deliver to the Sellers the Purchase Price by wire transfer in
US dollars in immediately available funds. Sellers shall provide the Purchasers
with wire instructions at least one business day prior to the Settlement Date.
Purchasers shall provide Sellers with a Schedule setting forth the allocation of
the Shares to be purchased by each Purchaser, or any designee of a Purchaser, at
least one business day prior to the Settlement Date and Sellers shall instruct
the transfer agent for the Company to transfer the Shares in accordance with
such allocation.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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3.1 Representations and Warranties of the Sellers. The Sellers,
jointly and severally, hereby represent and warrant to the Purchasers that the
statements set forth below are true and correct on the date hereof and shall be
true and correct on the Settlement Date:
(a) Capacity; Binding Effect. Sellers have full legal capacity,
right, power and authority to enter into, deliver and perform their obligations
under this Agreement, and this Agreement has been duly executed and delivered by
Sellers and constitutes a legal, valid and binding obligation of Sellers,
enforceable against Sellers in accordance with its terms. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all limited
liability action on the part of FCM.
(b) Title, Etc. Sellers are the beneficial owners of and have
good and marketable title to the Shares free and clear of all Liens, other than
any restrictions on transfer arising under applicable Federal or state
securities laws. Sellers have no legal or contractual obligation, absolute or
contingent, to any Person to sell or otherwise transfer or dispose of any of
such Shares, or to grant any Lien thereon or with respect thereto, and Sellers
have not entered
into any agreement, arrangement or understanding with respect thereto or
appointed or granted any proxy with respect to the Shares.
3.2 Representations and Warranties of the Purchasers. The
Purchasers, jointly and severally, hereby represent and warrant to the Sellers
that the statements set forth below are true and correct on the date hereof and
shall be true and correct on the Settlement Date:
(a) Due Authorization; Binding Obligation. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate, limited liability company or partnership action, as the case may be,
on the part of each Purchaser. This Agreement has been duly executed and
delivered by each Purchaser and is a valid and binding obligation of each
Purchaser, enforceable against it in accordance with its terms.
(b) Requisite Power. Each Purchaser has all requisite
corporate, limited liability company or partnership action, as the case may be,
to execute and deliver this Agreement and to perform fully its obligations
hereunder.
(c) Obligations under Article IV. Each Purchaser hereby
confirms that each of its Affiliates has duly authorized and has the taken all
requisite action in order to perform fully their respective obligations under
Article IV of this Agreement.
(d) Ownership. To the best knowledge of Barington, after giving
effect to the purchase and sale of the Shares to the Purchasers pursuant to
Article II of this Agreement, Barington, together with all other parties whose
ownership of shares of Common Stock would be required to be included in a
Schedule 13-D filed by or on behalf of Barington or any of its Affiliates, could
not beneficially own in excess of an additional 30,000 shares of Common Stock
without owning, in the aggregate, 15% or more of the outstanding shares of
Common Stock, based upon the number of shares of Common Stock reported by the
Company to be outstanding in its last quarterly filing with the Securities and
Exchange Commission.
ARTICLE IV
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RELEASE
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4.1 Release of Sellers. Each Purchaser expressly releases, and
hereby confirms and represents that each of its Affiliates hereby releases,
fully and finally, the Sellers and each of their respective Affiliates, family
members, heirs, executors, administrators, attorneys and other representatives,
successors and assigns (each such Person, a "Related Person") from all manner of
claims, causes of action, suits, demands, debts, sums of money, accounts,
covenants, contracts, controversies, agreements and promises on its part of any
kind whatsoever, known or unknown, suspected or unsuspected, direct, indirect or
contingent, in law or in equity (collectively, "Claims"), arising at any time
prior to the Settlement Date, which result from or arise out of the formation,
capitalization, financing, management or operations of the Company or any of its
subsidiaries or Affiliates, or any action by or omission of any Seller or any
Related Person in connection therewith; provided, however, that this release
does not relate
to nor does it release any Seller from any of its obligations under this
Agreement or any of the transactions contemplated hereby.
4.2 Claims of the Company. Each Purchaser hereby agrees that it
will, and hereby confirms and represents that each of its Affiliates agrees that
such Person will, not seek to cause the Company to pursue any Claim against any
Seller or any Related Person to the extent that such Claims cover any of the
matters subject to the release set forth in Section 4.1 of this Agreement,
subject, however, to the obligation of any such Person to comply with its
fiduciary duties as a member of the board of directors of the Company.
ARTICLE V
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MISCELLANEOUS
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5.1 Fees, Costs and Expenses. Each of the parties hereto will pay
its own costs and expenses in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and any amendments or
supplements to or modifications thereof.
5.2 Binding Effect; Successors and Assigns; Entire Agreement. This
Agreement and all of the provisions hereof shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as provided in this Section 5.2 and Article IV hereof,
nothing in this Agreement, express or implied, is intended or shall be construed
to confer upon or give to any Person other than the parties hereto any remedy or
claim under or by reason of this Agreement or any term, covenant or condition
hereof, all of which shall be for the sole and exclusive benefit of the parties
hereto. Either Seller may assign the right to receive payment for such Seller's
portion of the Shares as provided for herein to any other Person. This Agreement
sets forth the entire agreement and understanding among the parties hereto as to
the subject matter hereof and thereof and merge and supersede all prior
discussions, agreements and understandings of any and every nature between them
with respect to such subject matter.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions
hereof may not be given, unless approved in writing by the parties hereto.
5.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, regardless of the
laws that might be applicable under principles of conflicts of law.
5.5 No Implied Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party
hereto, shall be deemed to constitute a waiver by the party taking such action
of compliance with any representations, warranties, covenants or agreements
contained herein or made pursuant hereto. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any preceding or succeeding breach and no party's failure to exercise
or delay in exercising any right or privilege hereunder shall be deemed a waiver
of such
party's rights or privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times. 5.6 Further
Assurances. From and after the date hereof, each party hereto shall cooperate
and take such actions as may be reasonably requested by the other party in order
to carry out the provisions and purposes of this Agreement.
5.7 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid, void or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
5.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall be
deemed to constitute one and the same instrument.
[signature page to follow]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
PURCHASERS:
BARINGTON COMPANIES EQUITY PARTNERS, L.P.
By: Barington Companies Investors,
LLC, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Managing Member
PARCHE, LLC
By: Admiral Advisors, LLC, its managing
member
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
STARBOARD VALUE & OPPORTUNITY FUND, LLC
By: Admiral Advisors, LLC, its
managing member
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
SELLERS:
XXXXXX CAPITAL MANAGEMENT, LLC
By: Xxxxx X. Xxxxxx,
Managing Member
By: /s/ Xxxxx X. Xxxxxx
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/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
