EXHIBIT 2.2
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of November 24, 2003,
by and among Day International, Inc., a Delaware corporation (the "Purchaser"),
Xxxxxx Golf Enterprises, Inc., a Massachusetts corporation, and Xxxxxxxx Ink
Company, an Ohio corporation (each a "Seller" and collectively, the "Sellers").
WHEREAS, the Sellers collectively own 26.19 units as set forth on Annex
A (the "Units") of Bellwether Distributions, L.L.C., a Delaware limited
liability company (the "Company"), which Units represent a 39.57% interest in
the Company;
WHEREAS, the Purchaser is a party to that certain Stock Purchase
Agreement dated as of November 24, 2003 (the "Purchase Agreement"), by and among
the shareholders party thereto and the Purchaser, pursuant to which the
Purchaser is acquiring on the date hereof all of the issued and outstanding
shares of beneficial interests of Network Distribution International, a
Massachusetts business trust ("NDI") which holds a 60.43% interest in the
Company;
WHEREAS, the Purchaser desires to purchase the remaining 39.57%
interest in the Company and the Sellers desire to sell such 39.57% interest to
the Purchaser, pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, each of the Sellers and the Purchaser hereby
acknowledges and agrees as follows:
1. Purchase of Units.
(a) In reliance upon the representations and warranties
contained herein and subject to the satisfaction of the conditions set
forth herein, effective on the closing of the sale of the shares of NDI
pursuant to the terms of the Purchase Agreement (the "Closing"), the
Sellers agree to sell to the Purchaser, all right, title and interest
of the Sellers to the Units for an aggregate purchase price of Seven
Hundred Ninety One Thousand Four Hundred Dollars ($791,400) (the
"Purchase Price"), as more particularly described on Annex A hereto.
Payment for the Units will be made by wire transfer of immediately
available funds on the Closing Date to an account or accounts
designated by the Sellers. For purposes hereof, the date on which the
Closing occurs shall be the "Closing Date."
(b) Upon receipt of the Purchase Price at the Closing,
the Sellers shall deliver to the Purchaser certificate(s) representing
each such Seller's respective Units (or lost certificate affidavits in
lieu of such certificates), duly endorsed in blank or accompanied by
bills of sale and assignments in the forms attached hereto as Annexes
B-1 and B-2, respectively, separate from the certificate duly executed
in blank.
2. Sellers' Representations and Warranties. Each Seller hereby
represents and warrants to the Purchaser that, as of the date hereof:
(a) Organization; Qualification. Such Seller is a
corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the
requisite corporate power and authority to own its properties and
assets and carry on its business as it is now being conducted.
(b) Power; Authorization; Enforceability. Such Seller has
full corporate power and authority to execute and deliver this
Agreement and to carry out and perform all of its obligations under the
terms of this Agreement, including the sale and conveyance of the
Units. This Agreement has been duly executed and delivered by such
Seller and constitutes the legally valid and binding obligation of such
Seller, enforceable against such Seller in accordance with its terms,
except to the extent that enforcement may be limited by bankruptcy,
reorganization, insolvency and other similar laws and court decisions
relating to or affecting the enforcement of creditors' rights generally
and by the application of general equitable principles.
(c) Consents and Approvals of Governmental Authorities
and Other Persons. No consent, license, approval, order or
authorization of, or registration, filing or declaration with, any
governmental authority is required to be obtained or made, and no
consent of any third party is required to be obtained, by such Seller
in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby,
except for corporate approvals which have been obtained and except to
the extent that the Second Amended and Restated Limited Liability
Company Agreement, entered into as of June 30, 2000 (the "Bellwether
LLC Agreement"), by and among the members of the Company contains
rights of first refusal and/or consent requirements, which rights and
requirements the Company and the other members have affirmatively
waived pursuant to the terms of the Purchase Agreement.
(d) Free of Liens. Such Seller is the beneficial and
record owner of the Units indicated by such Seller on Annex A and has
good, valid and marketable title to such Units free and clear of all
liens, pledges, encumbrances, security interests, charges, taxes,
rights of first refusal or claims of any third party (collectively,
"Liens"). No other party has any option or other right to purchase any
of such Units from such Seller. Upon delivery of the Units at the
Closing and payment by the Purchaser of the Purchase Price, good, valid
and marketable title to the Units, free and clear of all Liens, will
pass to the Purchaser.
(e) No Conflicts. Neither the execution, delivery or
performance of this Agreement by such Seller, nor the consummation of
any transaction contemplated hereby, does or will constitute (with or
without due notice or lapse of time or both), result in or give rise to
(i) a breach of or default under the charter or by-laws of such Seller,
(ii) a breach, violation or default under any law, rule, regulation, or
interpretation of any governmental authority ("Law") or (iii) a breach
of, default under (or the acceleration of the time for performance of
any material obligation under), or right of termination, amendment,
cancellation or acceleration of any material right or obligation of
such Seller under, any agreement, arrangement, contract (written or
oral), indenture, instrument, lease, license or understanding
("Contract") binding upon such Seller or to which any of its properties
or assets are subject, except for any breach, violation, default or
acceleration that would not be materially adverse to such Seller.
2
(f) Legal Proceedings. There is no order or action
pending, or, to the best knowledge of such Seller, threatened, against
such Seller that, individually or when aggregated with one or more
other orders or actions has had or, if determined adversely to the
interest of such Seller, would reasonably be expected to have, a
material adverse effect on such Seller's ability to perform its
obligations under this Agreement.
(g) No Brokers or Finders. No broker, finder, investment
or commercial banker, or similar agent is or will be entitled to any
brokerage, finder's or similar fee based upon engagements or
arrangements made by or on behalf of such Seller or any of its
respective affiliates in connection with this Agreement or the
transactions contemplated hereby.
3. Purchaser's Representations and Warranties. The Purchaser
hereby represents and warrants to each Seller that, as of the date hereof:
(a) Organization; Qualification. Purchaser is a
corporation duly incorporated, validly existing and in good standing
under the laws of Delaware and has the requisite corporate power and
authority to own its properties and assets and carry on its business as
it is now being conducted.
(b) Power; Authorization; Enforceability. Purchaser has
full corporate power and authority to execute and deliver this
Agreement and to carry out and perform all of its obligations under the
terms of this Agreement, including the purchase of the Units. This
Agreement has been duly and validly executed and delivered by Purchaser
and constitutes the legally valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except to
the extent that enforcement may be limited by bankruptcy,
reorganization, insolvency and other similar laws and court decisions
relating to or affecting the enforcement of creditors' rights generally
and by the application of general equitable principles.
(c) Consents and Approvals of Governmental Authorities
and Other Persons. No consent, license, approval, order or
authorization of, or registration, filing or declaration with, any
governmental authority is required to be obtained or made, and no
consent of any third party is required to be obtained, by Purchaser in
connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby.
(d) No Conflicts. Neither the execution, delivery or
performance of this Agreement by Purchaser, nor the consummation of any
transaction contemplated hereby, does or will constitute (with or
without due notice or lapse of time or both), result in or give rise to
(i) a breach of or default under the charter or by-laws of Purchaser,
(ii) a breach, violation or default under any Law or (iii) a breach of,
default under (or the acceleration of the time for performance of any
material obligation under), or right of termination, amendment,
cancellation or acceleration of any material right or obligation of
Purchaser under, any Contract binding upon Purchaser or to which any of
its properties or assets are subject, except for any breach, violation,
default or acceleration that would not be materially adverse to
Purchaser.
3
(e) Legal Proceedings. There is no order or action
pending, or, to the best knowledge of Purchaser, threatened, against
Purchaser that, individually or when aggregated with one or more other
orders or actions has had or, if determined adversely to the interest
of Purchaser, would reasonably be expected to have, a material adverse
effect on Purchaser's ability to perform its obligations under this
Agreement.
(f) No Brokers or Finders. No broker, finder, investment
or commercial banker, or similar agent is or will be entitled to any
brokerage, finder's or similar fee based upon engagements or
arrangements made by or on behalf of Purchaser or any of its respective
affiliates in connection with this Agreement or the transactions
contemplated hereby.
4. Further Assurances and Agreements. Each party to this
Agreement shall use commercially reasonable efforts to do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5. No Additional Representations; Irrevocability. Each of the
Sellers, on the one hand, and the Purchaser, on the other hand, acknowledges,
represents and warrants that (i) no party has made any representation or
warranty, whether express or implied, of any kind or character, regarding the
sale and purchase of the Units, except as expressly set forth in this Agreement
and (ii) the transfer of the Units by the Sellers will be irrevocable and that
the Sellers will have no recourse to the Units.
6. Expenses. Each party hereto shall bear all of its own
expenses, costs and fees in connection with the transactions contemplated
hereby.
7. Conditions Precedent. Notwithstanding anything in this
Agreement to the contrary, the obligations of Purchaser to purchase the Units
and the obligations of Sellers to sell the Units are subject to the concurrent
execution and delivery of the Purchase Agreement and consummation of the
transactions contemplated thereby.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without giving effect to
any choice of law or conflict of law provision or rule (whether of the
State of Ohio or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Ohio. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in Cuyahoga County
for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action
or proceeding brought in such jurisdiction that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper.
4
(b) This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each other party
and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature
were an original, not a facsimile signature.
(c) This Agreement shall be binding upon the parties and
their successors and assigns and may be amended or terminated only by a
writing signed by the parties hereto.
(d) In any action by any party to enforce its rights or
another party's obligations hereunder, it is expressly agreed and
acknowledged that the Units are unique, that the failure to deliver
them in breach of this Agreement will cause the Purchaser irreparable
harm, and the aggrieved party may enforce same by all appropriate legal
means, including without limitation a suit for specific performance
and/or an action for damages.
(e) Should any party take any action to enforce its
rights or another party's obligations hereunder, the prevailing party
in such action shall be entitled to recovery from the losing party of
all costs, including reasonable attorneys' fees, incurred in connection
with the such action.
(f) This Agreement constitutes the entire understanding
of the parties hereto with respect to the matters covered herein. No
provision of this Agreement may be amended other than by an instrument
in writing signed by all of the parties hereto, and no provision of
this Agreement may be waived other than by an instrument in writing
signed by the waiving party.
(g) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. This Agreement may not be assigned by a party without the
prior written consent of the other parties, which may be withheld in
the sole discretion of each other party. Any allowed assignment or
transfer of a party's rights and obligations under this Agreement shall
not under any circumstances release said assigning party from its
obligations with respect to this Agreement.
(h) All representations, warranties and agreements
contained herein shall survive the execution and delivery of this
Agreement and the closing of the transactions contemplated herein,
except that the representations and warranties contained in Sections
2(a), 2(c), 2(e) and 2(f) shall expire on May 24, 2005.
9. Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) business day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
5
If to Sellers:
Such address and facsimile number
set forth adjacent to such Seller's name
on Annex A hereto.
with a copy (which shall not constitute notice) to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
If to Purchaser:
Day International, Inc.
000 Xxxx 0xx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party five days prior to the effectiveness of such change.
(Next Page is a Signature Page)
6
IN WITNESS WHEREOF, this Agreement has been duly signed by or on behalf
of the parties hereto as of the day and year first above written.
PURCHASER:
DAY INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and CFO
SELLERS:
XXXXXXXX INK COMPANY
By: /s/ D. Xxxxx Xxxxxxxx
--------------------------
Name: D. Xxxxx Xxxxxxxx
Title: President
XXXXXX GOLF ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Clerk
7
ANNEXES
A Name and Holdings of Sellers
B-1 Xxxx of Sale and Assignment by Xxxxxx Golf along with interests of
Bellwether
B-2 Xxxx of Sale and Assignment by Xxxxxxxx Ink along with interests of
Bellwether
A copy of the Annexes will be furnished supplementally to the
Commission upon request.
