Repurchase and Termination Agreement
Repurchase and Termination Agreement dated as of February 20, 1998
("Agreement") by and among Xxxxxxx Holdings Inc. (the "Company"), SBC Warburg
Dillon Read Inc. ("SBCWDR"), BT Alex. Xxxxx Incorporated ("BTAB," and together
with SBCWDR, the "Initial Purchasers"), and United States Trust Company of New
York ("U.S. Trust").
Reference is made to the following:
Amended and Restated Certificate of Designations, Preferences and Relative,
Participating, Option and Other Special Rights of 13 3/4% Series A Cumulative
Redeemable Exchangeable Preferred Stock of the Company (the "Certificate of
Designations");
Preferred Stock Registration Rights Agreement dated as of November 26, 1997
between the Company and the Initial Purchasers (the "Preferred Stock
Registration Rights Agreement");
One or more certificates (the "Preferred Stock Certificates") representing
100,000 shares of 13 3/4% Series A Cumulative Redeemable Exchangeable Preferred
Stock of the Company (collectively, the "Preferred Stock");
Warrant Agreement dated as of November 26, 1997 (the "Warrant Agreement")
between the Company and U.S. Trust, as warrant agent (the "Warrant Agent");
Warrant Registration Rights Agreement dated as of November 26, 1997 (the
"Warrant Registration Rights Agreement," and together with the Preferred Stock
Registration Rights Agreement, the "Registration Rights Agreements") between the
Company and the Warrant Agent; and
One or more certificates (the "Warrant Certificates," and together with the
Preferred Stock Certificates, the "Certificates") representing 100,000 warrants
(collectively, the "Warrants," and together with the Preferred Stock, the
"Securities"), each warrant to purchase 4 shares of common stock of the Company.
WHEREAS, on November 26, 1997 (the "Issue Date"), the Company sold to the
Initial Purchasers, and the Initial Purchasers purchased from the Company, the
Securities;
WHEREAS, the Company wishes to repurchase from the Initial Purchasers, and
the Initial Purchasers wish to sell to the Company, the Securities;
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WHEREAS, holders of Preferred Stock are entitled to certain registration
rights under the Preferred Stock Registration Rights Agreement, and holders of
Warrants are entitled to certain registration rights under the Warrant
Registration Rights Agreement;
WHEREAS, upon consummation of the repurchase, U.S. Trust, on behalf of the
Company, will cancel the Securities, after which the Warrant Agreement and the
Registration Rights Agreements will terminate and no longer be in effect except
for provisions that expressly survive termination pursuant to their terms;
NOW, THEREFORE, for valid and full consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Representations and Warranties.
SBCWDR hereby represents and warrants that it is the sole beneficial owner
of 66,667 shares of Preferred Stock and 66,667 Warrants (collectively, the
"SBCWDR Securities"), with full power of disposition.
BTAB hereby represents and warrants that it is the sole beneficial owner of
33,333 shares Preferred Stock and 33,333 Warrants (collectively, the "BTAB
Securities"), with full power of disposition.
Neither the execution and delivery by the Company of this Agreement nor the
consummation of the repurchase of the Securities, as contemplated herein, does
or will violate, conflict with or constitute a breach of any of the terms or
provisions of, or result in a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent under
(i) the charter or bylaws of the Company or any of the Company's subsidiaries,
or (ii) any obligation, agreement, covenant or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, loan agreement, lease,
license, franchise agreement, authorization, permit, certificate or other
agreement or instrument to which any of them is a party or by which the Company
or any of its subsidiaries is bound or to which any of their assets or
properties is subject that, in the case of clause (ii), would have a material
adverse effect on the business, condition (financial or other), properties,
assets, liabilities or results of operations of the Company and its subsidiaries
taken as a whole.
Each party hereto represents and warrants that (i) the execution and
delivery of this Agreement and the performance of its obligations hereunder has
been duly authorized, (ii) this Agreement has been duly executed and delivered
and (iii) this Agreement constitutes the valid and legally binding agreement of
such party, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of creditors'
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rights generally and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought.
2. Purchase and Sale.
Subject to the condition in Section 3 hereof, the Company hereby agrees to
repurchase from SBCWDR, and SBCWDR agrees to sell to the Company, all of the
SBCWDR Securities at an aggregate purchase price of $6,880,556 in cash (the
"SBCWDR Securities Purchase Price").
Subject to the condition in Section 3 hereof, the Company hereby agrees to
repurchase from BTAB, and BTAB agrees to sell to the Company, all of the BTAB
Securities at an aggregate purchase price of $3,440,277 in cash (the "BTAB
Securities Purchase Price").
3. Condition.
The Company's obligation to repurchase the Securities shall be subject to
the prior or concurrent issuance and sale by the Company of 1,000,000 units,
each unit consisting of one share of common stock and one share of Series B
Preferred Stock of the Company, for aggregate gross proceeds of not less than
the sum of the SBCWDR Securities Purchase Price and BTAB Securities Purchase
Price pursuant to the Subscription Agreement dated as of February 20, 1998
between the Company and Co-Investment Partners, L.P.
4. Closing.
Subject to the satisfaction of the condition in Section 3, the closing of
the repurchases of Securities (the "Closing") shall take place on February 20,
1998 at 10:00 a.m., or such later date and time as the parties shall agree (such
date and time, the "Closing Date"), at the offices of Xxxxxx Xxxxxx & Xxxxxxx,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000. At the Closing, (i) the Company shall
wire transfer the SBCWDR Securities Purchase Price in immediately available
funds to an account specified in writing by SBCWDR, (ii) the Company shall wire
transfer the BTAB Securities Purchase Price in immediately available funds to an
account specified in writing by BTAB, (iii) the Initial Purchasers shall cause
the Securities to be withdrawn from The Depository Trust Company, (iv) U.S.
Trust, as registrar and transfer agent for the Preferred Stock, shall cancel the
Preferred Stock Certificates and deliver them to the Company on behalf of the
Initial Purchasers and (v) the Warrant Agent shall cancel the Warrant
Certificates and deliver them to the Company on behalf of the Initial
Purchasers.
5. Effect of Closing.
The parties hereto agree that, effective upon the Closing, (i) the Initial
Purchasers' rights as holders of Securities shall terminate, (ii) the Warrant
Agreement and the Registration Rights Agreements shall terminate and shall no
longer be in effect, except that provi-
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sions thereunder that specifically survive termination shall survive in
accordance with their terms, (iii) the Company shall be entitled to amend its
certificate of incorporation to remove the provisions incorporated therein under
the Certificate of Designations and (iv) the duties of U.S. Trust as registrar
and transfer agent for the Preferred Stock and as Warrant Agent shall cease.
6. Governing Law; Counterparts.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of
laws. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, each of the parties hereto has cause its duly
authorized officers to execute this Agreement as of the date first above
written.
XXXXXXX HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
SBC WARBURG DILLON READ INC.
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Executive Director
BT ALEX. XXXXX INCORPORATED
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
Title: Managing Director
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
