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EXECUTION COPY
EXHIBIT 2.2
SECURITIES PURCHASE AGREEMENT
AGREEMENT, dated October 20, 1997, among MLX Corp., a Georgia corporation
("Buyer"), and the holders (the "Selling Securityholders") of shares of common
stock ("Common Stock"), par value $0.01 per share, of Xxxxxx Metalcraft Holding
Co., a Delaware Corporation (the "Company"), and options and warrants to
acquire shares of Common Stock (such shares of Common Stock, warrants and
options, the "Company Securities").
Pursuant to an Agreement and Plan of Merger dated as of October 20, 1997
(the "Merger Agreement"), among Buyer and the Company, the Company shall be
merged with and into Buyer (the "Merger"), with Buyer being the surviving
corporation (hereinafter referred to as the "Surviving Corporation").
Pursuant to Section 5.9 of the Merger Agreement, prior to the Effective
Time (as defined in the Merger Agreement), the Company will be recapitalized
(the "Recapitalization") as set forth in the Merger Agreement.
Each Selling Securityholder is the record and beneficial owner of the
Company Securities set forth opposite such Selling Securityholder's name on
Exhibit A hereto. As a result of the Recapitalization, each Selling
Securityholder will become the record and beneficial owner of the newly issued
securities of the Company (the "Recap Company Securities") set forth opposite
such Selling Securityholder's name on Exhibit B hereto. Each Selling
Securityholder wishes to sell the Recap Company Securities (all such Recap
Company Securities of all Selling Securityholders herein referred to as the
"Sale Securities") set forth opposite such Selling Stockholder's name on
Exhibit C
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hereto and Buyer wishes to purchase all such Sale Securities upon the terms and
subject to the conditions of this Agreement. Capitalized terms used herein but
not otherwise defined shall have the meanings given them in Section 11.1
hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Sale and Purchase of Sale Securities.
1.1 Sale and Purchase of Sale Securities. At the Closing (as
hereinafter defined), (i) each Selling Securityholder shall sell, and Buyer
shall purchase all of the Sale Securities of such Selling Securityholder, free
of any Liens, (ii) each Selling Securityholder shall deliver or cause to be
delivered to Buyer certificates representing all of such Sale Securities
accompanied by stock or warrant powers, as the case may be, duly executed in
blank, in proper form for transfer, and with all appropriate stock transfer
tax stamps affixed, and (iii) Buyer shall deliver the Purchase Price (as
hereinafter defined) to the Selling Securityholders in accordance with Section
1.2 below.
1.2 Purchase Price. The aggregate purchase price for the Sale
Securities (the "Purchase Price") shall be the aggregate of all the purchase
prices shown on Exhibit C. Buyer shall pay to each of the Selling
Securityholders in immediately available funds, pursuant to written
instructions provided by each Selling Securityholder at or prior to the
Closing, the amount of the payment set forth opposite such Selling
Securityholder's name on Exhibit C, against receipt of the Sale Securities of
such Selling Stockholder set forth on Exhibit C hereto.
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2. Closing; Closing Date. The closing of the purchase and sale of the
Sale Securities (the "Closing") shall take place immediately prior to the
Effective Time (as defined in the Merger Agreement) on satisfaction or waiver
of the conditions set forth in Article 4 hereof at such place and time as the
parties may agree in writing (such time and date being referred to herein as
the "Closing Date").
3. Representations and Warranties of Selling Securityholders. Each
Selling Securityholder severally, and not jointly, represents and warrants to
Buyer as follows:
3.1 Title to the Company Securities. Except as set forth on Schedule
3.1, as of the date hereof, such Selling Securityholder owns of record, free and
clear of any Lien, such Company Securities set forth opposite such Selling
Stockholder's name on Exhibit A hereto.
3.2 Title to the Recap Company Securities. As of the Closing Date and
assuming the consummation of the Recapitalization in accordance with the Merger
Agreement, such Selling Securityholder shall own of record, free and clear of
any Lien, such Recap Company Securities set forth opposite such Selling
Stockholder's name on Exhibit B hereto. Any Liens set forth on Schedule 3.1
regarding such Selling Stockholder's Company Securities shall no longer be in
effect as of the Closing Date.
3.3 Title to the Sale Securities. As of the Closing Date and assuming
the consummation of the Recapitalization in accordance with the Merger
Agreement, such Selling Securityholder shall own of record, free and clear of
any Lien, such Sale Securities set forth opposite such Selling Stockholder's
name on
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Exhibit C hereto, and, upon delivery of and payment for such Sale Securities by
Buyer as herein provided, such Selling Securityholder will convey to Buyer good
and valid title thereto, free and clear of any Lien. Any Liens set forth on
Schedule 3.1 regarding such Selling Stockholder's Sale Securities shall no
longer be in effect as of the Closing Date.
3.4 Authority to Execute and Perform Agreement. Such Selling
Securityholder has the full legal right, power and all authority required to
enter into, execute and deliver this Agreement and to perform fully such
Selling Securityholder's obligations hereunder. This Agreement has been duly
executed and delivered by such Selling Securityholder and (assuming the due
authorization, execution and delivery hereof by Buyer) is a legal, valid and
binding obligation of such Selling Securityholder enforceable against such
Selling Securityholder in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights and to general equity principles
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
3.5 Noncontravention. Except as set forth on Schedule 3.5, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby by such Selling Securityholder will not (i)
contravene such Selling Securityholder's charter, articles or certificate of
incorporation or by-laws, as applicable; (ii) violate, or cause such Selling
Securityholder to be in default under, any provision of law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award in effect
having
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applicability to such Selling Securityholder; (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which such Selling Securityholder is a
party or by which it or its properties may be bound or affected; or (iv) result
in, or require, the creation or imposition of any Lien upon or with respect to
any of the properties now owned by such Selling Securityholder.
3.6 Representations and Warranties on Closing Date. The representations
and warranties of such Selling Stockholder contained in this Article 3 shall be
true and correct on and as of the Closing Date with the same force and effect
as though such representations and warranties had been made on and as of the
Closing Date.
4. Representations and Warranties of Buyer. Buyer represents and warrants
to each Selling Securityholder as follows:
4.1 Authority to Execute and Perform Agreement. Buyer has the full legal
right, power and all authority required to enter into, execute and deliver this
Agreement and to perform fully Buyer's obligations hereunder. This Agreement
has been duly executed and delivered by Buyer and (assuming the due
authorization, execution and delivery hereof by the Selling Securityholders) is
a legal, valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors' rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding at law or in equity).
4.2 Noncontravention. Except as set forth on Schedule 4.2,
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the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby by Buyer will not (i) contravene
Buyer's charter, articles or certificate of incorporation or by-laws; (ii)
violate, or cause Buyer to be in default under, any provision of law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
in effect having applicability to Buyer; (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which Buyer is a party or by which it
or its properties may be bound or affected; or result in, or require, the
creation or imposition of any Lien upon or with respect to any of the
properties now owned by Buyer.
5. Conditions Precedent to the Obligation of Buyer to Close. The
obligation of Buyer to enter into and complete the Closing is subject, at the
option of Buyer, to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived by it:
5.1 Consummation of the Merger. All conditions precedent to the
consummation of the Merger shall have been fulfilled by the parties to the
Merger Agreement.
5.2 Representations and Warranties. The representations and
warranties of the Selling Securityholders contained in this Agreement shall be
true and correct on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date.
6. Conditions Precedent to the Obligation of the Selling Securityholders
to Close. The obligation of each of the Selling Securityholders to enter into
and complete the Closing is subject, at the option of such Selling
Securityholder,
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to the fulfillment on or prior to the Closing Date of the following conditions,
any one or more of which may be waived by it:
6.1 Consummation of the Merger. All conditions precedent to the
consummation of the Merger shall have been fulfilled by the parties to the
Merger Agreement, the Buyer shall in good faith expect the Effective Time under
the Merger Agreement to occur immediately after the Closing hereunder and no
amendment or other modification to the Merger Agreement shall have been made
which would increase the merger consideration thereunder or otherwise adversely
affect the rights of any of the Selling Securityholders hereunder.
6.2 Shareholders' Agreement. The Shareholders' Agreement, dated as of
March 20, 1995, among the Company, Xxxxxx Metalcraft Co., Xxxxxxx X. Xxxxxx and
the Purchasers (as defined therein) party thereto shall have been terminated
simultaneously with the Closing of this Agreement.
6.3 Shareholders' Agreement. The Shareholders' Agreement, dated as of
January 25, 1995, as amended as of July 11, 1997, among the Company, Xxxxxx
Metalcraft Co., Xxxxxxx X. Xxxxxx and the Noteholders (as defined therein)
party thereto shall have been terminated simultaneously with the Closing of
this Agreement.
6.4 Representations and Warranties. The representations and warranties of
Buyer contained in this Agreement shall be true and correct on and as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
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6.5 Recapitalization. The Recapitalization shall have been consummated by
the Company and as a result thereof the Company's capital structure shall be as
set forth on Exhibit B hereto.
6.6 Prepayment of Certain Debt of the Company. On or immediately after
the Closing Date, the Company shall have prepaid the indebtedness owed to each
of Connecticut General Life Insurance Company ("CGLIC"), as beneficial owner
(CIG & CO. being the registered owner) and CIGNA Mezzanine Partners III, L.P.
("CMP"; CMP and CGLIC collectively being referred to as, "CIGNA"), as
beneficial owner (CIG & CO. being the registered owner) pursuant to the
Company's 11.50% Senior Notes due January 31, 2005 (the "CIGNA Notes"), in the
aggregate outstanding principal amount of $25,000,000 such prepayment being
accompanied with a prepayment premium of $250,000, all accrued and unpaid
interest due on the CIGNA Notes on the Closing Date and all other amounts due
and owing under those separate Note Purchase Agreements, dated as of January
25, 1997, between the Company and each of CGLIC and CMP, and the Company and
Buyer shall have taken or caused to be taken all actions required to be taken
by each of them on or immediately after the Closing Date pursuant to that
certain Note Redemption Agreement, dated as of October 20, 1997, between, the
Company, Xxxxxx Metalcraft Co., Buyer and CIGNA.
7. Covenants.
7.1 Reasonable Best Efforts. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable best efforts
(to the extent within the control of any party hereto) to take, or cause to be
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taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable
the transactions contemplated by the Merger Agreement.
7.2 Survival of Representations and Warranties of the Selling
Securityholders After Closing. Notwithstanding any right of Buyer to
investigate and notwithstanding any knowledge of facts determined or
determinable by Buyer pursuant to such investigation or right of investigation,
Buyer has the right to rely fully upon the representations and warranties of
the Selling Securityholders contained in this Agreement. Notwithstanding any
waiver by Buyer of any condition precedent to its obligation to close, all
representations and warranties shall survive the execution and delivery of this
Agreement and the Closing hereunder.
7.3 Survival of Representations and Warranties of Buyer After Closing.
Notwithstanding any right of the Selling Securityholders to investigate and
notwithstanding any knowledge of facts determined or determinable by the
Selling Securityholders pursuant to such investigation or right of
investigation, the Selling Securityholders have the right to rely fully upon
the representations and warranties of Buyer contained in this Agreement.
Notwithstanding any waiver by the Selling Securityholders of any condition
precedent to its obligation to close, all representations and warranties shall
survive the execution and delivery of this Agreement and the Closing hereunder.
7.4 Selling Securityholder Restrictions. Each Selling Securityholder
hereby agrees to waive all restrictions (whether transfer or otherwise)
applicable to the shares of such Selling Securityholder to the extent necessary
to
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facilitate the consummation of the transactions contemplated by this Agreement.
Each Selling Securityholder hereby further agrees that any agreements
containing any such restrictions as they apply to the Sale Securities shall
terminate upon the consummation of the transaction contemplated by this
Agreement.
8. Indemnification.
8.1 Indemnification by Selling Securityholders. Each Selling
Securityholder hereby agrees that such Selling Securityholder shall be
severally, and not jointly, liable to and shall indemnify, defend and hold
harmless Buyer, its Affiliates (including the Surviving Corporation) and their
respective directors, officers, employees, Affiliates, successors and assigns
pursuant to this Agreement from and against any and all loss, cost, damage or
expense (including reasonable fees of counsel) whatsoever based upon, arising
out of or otherwise resulting from any breach of any representation or warranty
of such Selling Securityholder, or breach of any covenant or obligation of such
Selling Securityholder or enforcement by Buyer of its rights agasint such
Selling Securityholders hereunder, in either case, contained in this Agreement.
Nothing in the Limited Indemnification Agreement, dated October 17, 1997 (the
"Indemnification Agreement"), among Buyer and certain of the Selling
Securityholders shall limit the general liability of Selling Securityholders
under this Agreement.
8.2 Indemnification by Buyer. Buyer hereby agrees that Buyer shall be
liable to and shall indemnify, defend and hold harmless each Selling
Securityholder, its Affiliates and their respective directors, officers,
employees, Affiliates, successors and assigns pursuant to this Agreement from
and against any and all loss, cost, damage or expense (including reasonable
fees of counsel) whatsoever
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based upon, arising out of or otherwise resulting from any breach of any
representation or warranty of Buyer, or breach of any covenant or obligation of
Buyer or enforcement by any Selling Securityholder of its rights hereunder, in
either case, contained in this Agreement. Nothing in the Limited
Indemnification Agreement shall limit the general liability of Buyer under this
Agreement.
9. Additional Parties. The parties to this Agreement agree that
additional Selling Securityholders ("Additional Selling Securityholders") may
be added as parties to this Agreement prior to the Closing by such Additional
Selling Securityholders agreeing in writing to be bound by the provisions of
this Agreement, such addition to be made without the necessity of any action by
the parties hereto.
10.Termination of Agreement.
This Agreement shall terminate prior to the Closing as follows:
(a) upon the termination of the Merger Agreement; or
(b) at any time on or prior to the Closing Date, by mutual
written consent of the Selling Securityholders and Buyer.
If this Agreement is terminated as provided herein no party hereto shall
have any liability or further obligation to any other party under the terms of
this Agreement except for the intentional or willful violation of, or willful
misstatement contained in, the representations and warranties of such parties
contained in this Agreement.
11. Miscellaneous.
11.1 Certain Definitions. (a) As used in this Agreement, the
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following terms have the following meanings:
(i) "Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, or the parents,
spouse, lineal descendants or beneficiaries of, such Person.
(ii) "Lien" means any lien, pledge, mortgage, security interest,
claim, lease, charge, option, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance
or any other restriction or limitation whatsoever (other than restrictions
imposed by applicable securities laws).
(iii) "Person" means any individual, corporation, limited liability
company, partnership, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Body or other entity.
11.2 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission
or, if mailed, five days after the date of deposit in the United States mails,
as follows:
(a) if to Buyer, to:
MLX Corp.
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to a Selling Securityholder, to the
address set forth on Exhibit D hereto.
Any party may by notice given in accordance with this Section to the other
parties designate another address or Person for receipt of notices hereunder.
11.3 Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the purchase of the Sale Securities and supersedes
all prior agreements, written or oral, with respect thereto.
11.4 Waivers and Amendments. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or
privilege, nor any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
11.5 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware.
11.6 Binding Effect; No Assignment. This Agreement shall
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be binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. This Agreement is not assignable, except
that Buyer may assign its rights hereunder to any of its Affiliates.
11.7 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
11.8 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all of the parties hereto.
11.9 Headings. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
11.10 Severability of Provisions. If any provision or any portion of any
provision of this Agreement, or the application of any such provision or any
portion thereof to any Person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement, and the application of such provision or portion
of such provision as is held invalid or unenforceable to Persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MLX CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name:
Title:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
/s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxx
-------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------
Xxxxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx III
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Xxxx X. Xxxxxxxx III
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
/s/ Xxxxxx X. Xxxxxx III
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Xxxxxx X. Xxxxxx III
/s/ Xxxxx X. Xxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxx, Xx., as
custodian for Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxx, Xx., as
custodian for Xxxxx X. Xxxxxx
