Exhibit 10
Warrant Purchase Agreement
WARRANT PURCHASE AGREEMENT, dated as of November 23, 2004, between Dayton
Ventures LLC ("Seller") and Xxxxxx Brothers Inc. ("Purchaser").
1. Sale of Warrant. Subject to the terms and conditions contained herein,
Seller hereby sells to Purchaser and Purchaser hereby purchases from
Seller 13,000,000 warrants (each, a "Warrant"), dated March 13, 2000,
each such Warrant entitling its holder to purchase one share of Company
common stock ("Common Stock") of DPL Inc. (the "Company") at a price
equal to $21.00 per share subject to the adjustment provisions and having
the terms and conditions set forth therein. In consideration for such
Warrants, Purchaser shall pay Seller $3.80 per Warrant.
The total proceeds to the Seller shall equal: $49,400,000.00.
2. Closing. Closing of the sale and purchase under Section 1 of this
Agreement (the "Closing") shall take place on the later of 5 business
days after the date hereof and the date on which the Company actually
delivers the Warrants in such names as the Purchaser may instruct (or
such later date as Purchaser and Seller mutually agree). At or before
Closing, Seller shall cause the Warrants and, to the extent transferable,
two of its five demand registration rights under the Securityholders and
Registration Rights Agreement relating to the Warrants (the "Registration
Rights") to be delivered to Purchaser, and Purchaser shall execute any
documentation reasonably necessary to effect such delivery. Delivery of
the Warrants and the Registration Rights by Seller shall be made in
accordance with the instructions of the Purchaser and in such name(s) as
the Purchaser shall instruct. Seller makes no representation or warranty
as to the Registration Rights and Purchaser takes the Registration Rights
on an "as is where is" basis. Upon receipt of such deliveries, Purchaser
shall make payment of the aggregate purchase price in accordance with
Seller's wire instructions.
3. Representations of Seller. Seller represents and warrants that:
a) Seller beneficially owns and has the unrestricted right (other than
as such right may be restricted by laws of general application,
including the Securities Act of 1933, as amended (the "Act")) to
transfer the Warrants, free and clear of all liens, claims, charges
and other encumbrances.
b) Seller has full right, power and authority to enter into this
Agreement and to transfer the Warrants in accordance with the terms
of this Agreement and this Agreement constitutes a legal, valid and
binding obligation of Seller.
c) Seller's execution, delivery and performance of the Agreement do not
violate or conflict with any law applicable to it, any agreement or
instrument to which it is a party, any order or judgment of any
court or other agency of government applicable to it or any of its
assets, or any contractual restriction binding on or affecting it or
any of its assets.
d) Seller has not assigned or transferred any interest in the Warrants,
or entered into any agreement with the Company the effect of which
is to modify the rights of the holder of the Warrants as set forth
herein. Seller acquired the Warrants and paid for them in full on or
before March 13, 2000.
e) Seller acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the
transaction contemplated by this Agreement, and that it has the
capacity and financial expertise to evaluate the same; and that it
has not relied on any representations or warranties of Purchaser or
its agents or affiliates except for the representations and
warranties of Purchaser expressly provided herein.
f) Seller is not currently acting as an agent of the Company.
g) Seller is not prompted to sell the Warrants by any material,
non-public information concerning the Company.
h) Seller has not offered or sold any shares of common stock of the
Company by any form of general solicitation or general advertising.
i) Seller has obtained all necessary consents required in order to
transfer validly the Warrants to Purchaser in accordance with their
terms. j) Seller will make all required filings under all applicable
securities laws in connection with this transaction.
k) The Warrants are eligible for resale under Rule 144A under the Act.
4. Representations of Purchaser. Purchaser represents and warrants that:
a) Purchaser is acquiring the Warrants for its own account and will
resell the Warrants or will sell the shares acquired in connection
with the exercise thereof only in transactions which would be
permissible under the securities laws of the United States of
America or any state thereof.
b) Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Act.
c) Purchaser is aware that the legends set forth in the Warrants will
appear on the Warrants and any certificates representing the
Warrants for so long as required by the Warrants.
d) Purchaser has full right, power and authority to enter into this
Agreement, and to purchase the Warrants from Seller on the terms
described herein, and this Agreement constitutes a legal, valid and
binding obligation of Purchaser.
e) Purchaser acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the
transaction contemplated by this agreement and that it has the
capacity and financial experience to evaluate the same. Purchaser
has received all the information it considers necessary or
appropriate for deciding whether to acquire the Warrants and has had
an opportunity to secure all such information as it deems necessary
regarding the business, properties, prospects and financial
condition of the Company.
f) Purchaser is not an "affiliate" of the Company, as such term is
defined in Regulation 230.144(a)(1) under the Act.
g) Purchaser understands that the offer and the sale of the Warrants
are not being registered under the Act or under any state or foreign
securities laws.
5. Lock-Up. Seller agrees that, for a period of 30 days from the date
hereof, it will not, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common Stock or
other Warrants or securities convertible into or
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exchangeable for Common Stock or other Warrants, or sell or grant
options, rights or warrants with respect to any shares of Common Stock or
other Warrants or securities convertible into or exchangeable for Common
Stock or other Warrants or (2) enter into any swap or other derivatives
or other transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such shares of Common
Stock or Warrants, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or Warrants or
other securities, in cash or otherwise, in each case without the prior
written consent of Xxxxxx Brothers Inc.
6. Law Governing. This Agreement shall be governed by and constructed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
7. Parties in Interest. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors, and assigns of the parties
hereto.
8. Miscellaneous. This Agreement may be executed concurrently in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart
may be delivered by facsimile transmission, which transmission shall be
deemed delivery of an originally executed document. The headings of the
Sections hereof are inserted for convenience only and shall not be deemed
to constitute a part hereof. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof
and supersedes all the previous agreements, promise or representations,
whether written or oral, between the parties.
9. Fees and Expenses. Each of the Purchaser and Seller agrees to pay its own
expenses and disbursements incident to the performance of its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SELLER: DAYTON VENTURES LLC
By: ____________________________________
Name:
Title:
PURCHASER: XXXXXX BROTHERS INC.
By: _____________________________________
Name:
Title:
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