Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 25th day of August, 1995, by and among Great American Management and
Investment, Inc., a Delaware corporation ("GAMI"), and Xxxxxxx & Xxxxxxxx
Capital Partners, a California Limited Partnership ("H&F"), Xxxxxxx & Xxxxxxxx
Capital Partners International (BVI), a British Virgin Islands general
partnership ("H&F Int'l") and H&F Redwood Partners, L.P., a California limited
partnership ("H&F Redwood") (H&F, H&F Int'l and H&F Redwood individually are
referred to herein as a "Purchaser" and collectively as "Purchasers").
W I T N E S S E T H
WHEREAS, GAMI owns the Vigoro Shares (as defined herein) and Purchasers
severally own the GAMI Shares (as defined herein) in the amounts indicated on
Schedule A; and
WHEREAS, Purchasers wish to acquire from GAMI the Vigoro Shares (as
defined herein), and GAMI wishes to acquire from each Purchaser its GAMI
Shares (as defined herein) upon the terms and conditions hereinafter set
forth, in each case in the amounts indicated on Schedule A;
WHEREAS, Purchasers are entering this Agreement in part because Vigoro has
agreed to grant to the Purchasers certain rights regarding the registration of
the Vigoro Shares (as defined herein) under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms shall have the meanings set forth
herein for the purposes of the transactions set forth in this Agreement:
"Amerace" shall mean Amerace Corporation, a Delaware corporation.
"Base Price" shall mean $240,000,000, provided, however, that (i) the Base
Price shall be adjusted in the event that the sale of Amerace involves the
transfer or retention of assets and/or liabilities (including the payment of a
dividend) other than those set forth in the Consolidating Balance Sheet, dated
February 28, 1995, attached hereto as Exhibit 1; (ii) the amount of such
adjustment shall be the book value of any assets added and liabilities excluded
less the book value of any assets excluded and liabilities added; and (iii) any
change in working capital resulting from the operation of Amerace in the
ordinary course of business shall result in no adjustment of the Base Price.
"Closing" shall mean the consummation of the transactions contemplated
herein in accordance with Article VI hereof.
"Closing Date" is defined in Section 6.1.
"Excess Sum" shall mean the amount by which the Sale Price exceeds the
Base Price.
"GAMI" is defined in the Preamble.
"GAMI Shares" shall mean 2,000,000 shares of the common stock of GAMI,
$0.01 par value per share, held of record by Purchasers, in the amounts, as to
each Purchaser, set forth hereto on Schedule A.
"Purchaser" and "Purchasers" are defined in the Preamble.
"Sale Price" shall mean the amount received by GAMI upon a sale of all the
stock of Amerace, net of all Taxes payable by GAMI with respect to such amount.
The tax basis of the stock of Amerace held by GAMI is approximately
$260,000,000.
"Taxes" shall mean all taxes, charges, fees, duties, levies or other
assessments, including (without limitation) income, gross receipts, net
proceeds, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value-added, stamp, leasing, lease,
user, transfer, fuel, excess profits, occupational, interest equalization,
windfall profits, severance and employees' income withholding, unemployment and
Social Security taxes, which are imposed by the United States, or any state,
local or foreign government or subdivision or agency thereof, and such term
shall include any interest, penalties or additions to tax attributable to such
Taxes.
"Vigoro" shall mean The Vigoro Corporation, a Delaware corporation.
"Vigoro Shares" shall mean 1,760,000 shares of the common stock of Vigoro,
$0.01 par value per share, held of record by GAMI.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of Shares.
(a) Subject to the terms and conditions set forth in this Agreement,
on the Closing Date GAMI shall sell, assign, transfer, convey and deliver to
each Purchaser, and each Purchaser shall accept, acquire and take assignment
and delivery of, the number of Vigoro Shares set forth opposite such
Purchaser's name on Schedule A.
(b) In consideration for such sale, assignment, transfer, conveyance
and delivery to Purchasers by GAMI of the Vigoro Shares, on the Closing Date
each Purchaser shall sell, assign, transfer, convey and deliver to GAMI, and
GAMI shall accept, acquire and take assignment and delivery of, that number of
GAMI Shares set forth opposite such Purchaser's name on Schedule A.
2.2 Adjustment. In the event GAMI sells Amerace within nine (9) months
of the date of this Agreement, GAMI agrees to pay to Purchasers, pro rata in
accordance with their respective holdings of GAMI Shares subject to this
Agreement, an amount equal to 17.866% of the Excess Sum, payable in cash.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF GAMI
GAMI represents and warrants to Purchasers that:
3.1 Ownership of Vigoro Shares. Each of the Vigoro Shares to be
delivered on the Closing Date is owned by GAMI free and clear of any adverse
claim, and none of the Vigoro Shares is subject to any restriction on
transfer, other than those restrictions set forth on the certificates
evidencing the Vigoro Shares or otherwise imposed by the federal and state
securities laws.
3.2 Due Organization. GAMI is a corporation validly existing and in good
standing under the laws of the State of Delaware with all requisite corporate
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted.
3.3 Due Authorization. GAMI has full power and authority to enter into
this Agreement and to perform the transactions contemplated hereby, and this
Agreement has been duly and validly executed and delivered by GAMI, and
constitutes the legal, valid and binding obligation of GAMI, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally, and by
legal and equitable limitations on the availability of specific remedies.
3.4 No Other Agreement. GAMI has no contract, agreement, arrangement or
understanding with respect to the sale or other disposition of the Vigoro
Shares except as set forth in this Agreement.
3.5 Consents. No notice to, filing with, authorization of, exemption by,
or consent of any person, entity, or public or governmental authority is
required in order for GAMI to consummate the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
Each Purchaser, as to itself, represents and warrants to GAMI that:
4.1 Ownership of GAMI Shares. Each of the GAMI Shares to be delivered on
the Closing Date is owned by each Purchaser as set forth on Schedule A free and
clear of any adverse claim, and none of the GAMI Shares is subject to any
restriction on transfer, other than those restrictions set forth on the
certificates evidencing the GAMI Shares or otherwise imposed by the federal and
state securities laws.
4.2 Due Organization. H&F is a limited partnership validly existing and
in good standing under the laws of the State of California with all requisite
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted; H&F Int'l is a general partnership
validly existing and in good standing under the laws of the British Virgin
Islands with all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted; H&F Redwood
is a limited partnership validly existing and in good standing under the laws
of the State of California with all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
4.3 Due Authorization. Each Purchaser has full power and authority to
enter into this Agreement and to perform the transactions contemplated hereby,
and this Agreement has been duly and validly executed and delivered by such
Purchaser, and constitutes the legal, valid and binding obligation of such
Purchaser, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
creditors' rights generally, and by legal and equitable limitations on the
availability of specific remedies.
4.4 No Other Agreement. No Purchaser has any contract, agreement,
arrangement or understanding with respect to the sale or other disposition of
the GAMI Shares except as set forth in this Agreement.
4.5 Consents. No notice to, filing with, authorization of, exemption by,
or consent of any person, entity, or public or governmental authority is
required in order for each Purchaser to consummate the transactions
contemplated hereby.
4.6 Distribution Intention. Each Purchaser is acquiring the Vigoro
Shares for its own account and with no intention of distributing or
re-selling the Vigoro Shares (or any part thereof) in any transaction that
would violate the securities laws of the United States of America or any
state, without prejudice, however, to such Purchaser's right at all times to
sell or otherwise dispose of all (or any part) of the Vigoro Shares pursuant
to a registration statement under the Securities Act of 1933, as amended, or
under applicable state laws, or under an exemption from applicable
registration requirements.
4.7 Sophistication; Ability to Bear Loss; Access to Information. Each
Purchaser acknowledges that (i) it has such knowledge, sophistication and
experience in financial and business matters such that it is capable of
evaluating the risks and merits of its investment in the Vigoro Shares and (ii)
it is able to bear the economic risk of such investment and is able to afford
the complete loss of its investment. Each Purchaser has had the opportunity to
ask questions of and receive answers from Vigoro concerning Vigoro's business,
operations and financial condition and has received from Vigoro all such
information as has been requested in order to evaluate the risks and merits of
the prospective investment contemplated herein.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Obligations of Purchasers. The obligation of
Purchasers to sell the GAMI Shares and to purchase the Vigoro Shares on the
Closing Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties set forth in this Agreement made by GAMI shall be true and accurate,
in all material respects, as of the Closing Date as if made on the Closing
Date.
(b) Certificates. GAMI shall have furnished Purchasers with
resolutions of its board of directors authorizing the transactions contemplated
by this Agreement.
5.2 Conditions Precedent to Obligations of GAMI. The obligation of GAMI
to sell the Vigoro Shares and to purchase the GAMI Shares on the Closing Date
is subject to the satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties set forth in this Agreement made by each Purchaser shall be true and
accurate, in all material respects, as of the Closing Date as if made on the
Closing Date.
(b) Certificates. Each Purchaser shall have furnished GAMI with
resolutions authorizing the transactions contemplated by this Agreement.
ARTICLE VI
CLOSING
6.1 Closing. The Closing shall take place at the offices of GAMI, 0
Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00 a.m. on
August 25, 1995, or on such later date to which the parties agree.
6.2 Closing Deliveries. At the Closing, GAMI shall deliver to each
Purchaser the number of Vigoro Shares set forth on Schedule A. At the Closing,
each Purchaser shall deliver to GAMI the number of GAMI Shares set forth on
Schedule A.
ARTICLE VII
MISCELLANEOUS
7.1 Expenses. Each party hereto shall bear its own expenses with respect
to the transactions contemplated by this Agreement.
7.2 Amendment. This Agreement may be amended, modified or supplemented,
but only in writing signed by all of the parties hereto.
7.3 Legend. The certificates evidencing the Vigoro Shares will bear the
following legend:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
state and thus may not be transferred unless so registered or unless an
exemption from registration is available."
7.4 Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
7.5 Headings. Section and Article headings in this Agreement are for
convenience of reference only, and shall not govern the interpretation of the
provisions of this Agreement.
7.6 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid and enforceable
provision as similar as possible to the provision at issue.
7.7 Entire Understanding. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior arrangements, agreements and
understandings relating to the subject matter hereof. There have been no
representations or statements, oral or written, that have been relied on by any
party hereto, except those expressly set forth in this Agreement.
7.8 Applicable Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Illinois,
without regard to conflicts of law principles.
7.9 Assignment. This Agreement and all the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned, by
operation of law or otherwise, by any party hereto without the prior written
consent of the other parties.
7.10 Termination of Certain Agreements.
(a) The parties agree that the Management Rights Agreement dated May
29, 1991 by and among GAMI, H&F and H&F Int'l (the "Vigoro Management Rights
Agreement") is hereby terminated and shall be of no further force and effect;
provided, however, that the indemnification obligations of GAMI pursuant to
Section 2.5 of the Vigoro Management Rights Agreement shall continue in full
force and effect, but only as such obligations relate to indemnification of
Purchasers' principals elected as directors of Vigoro for actions taken by such
principal as a director of Vigoro.
(b) The parties agree that any and all rights conferred by the Stock
Purchase Agreement dated July 17, 1990 by and among GAMI, H&F, H&F Int'l and
Equity Holdings Limited, an Illinois limited partnership (the "GAMI Stock
Purchase Agreement") (including, but not limited to, rights granted pursuant to
Sections 9.3, 9.5, 9.6 and Article 10 thereof), as well as any such rights
granted to H&F Redwood pursuant to the Transfer and Consent Agreement dated
December 31, 1991, are hereby terminated and shall be of no further force and
effect; provided, however, that the indemnification obligations of GAMI
pursuant to Section 9.3.5 of the GAMI Stock Purchase Agreement shall continue
in full force and effect, but only as such obligations relate to
indemnification of Purchasers' principals elected as directors of GAMI for
actions taken by such principal as a director of GAMI; provided, further,
that the indemnity obligations of GAMI pursuant to Sections 12.1 through 12.4
of the GAMI Stock Purchase Agreement shall also continue in full force and
effect, but only as such obligations relate to indemnification for actions
occurring before the date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
GREAT AMERICAN MANAGEMENT AND
INVESTMENT, INC.
By: /s/ Xxx Xxxxx
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Xxx Xxxxx
Senior Vice-President and General Counsel
XXXXXXX & XXXXXXXX CAPITAL PARTNERS, A CALIFORNIA
LIMITED PARTNERSHIP,
By its General Partner: Xxxxxxx & Xxxxxxxx Capital
Management, A California Limited Partnership,
By its General Partner: Xxxxxxx & Xxxxxxxx Capital
Management, Inc.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice-President
XXXXXXX & XXXXXXXX CAPITAL PARTNERS
INTERNATIONAL (BVI),
By its General Partner: Xxxxxxx & Xxxxxxxx Capital
Management International, A California Limited Partnership
By its General Partner: H&F Capital Management
International, Inc.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice-President
H&F REDWOOD PARTNERS, L.P.
By its General Partner: H&F Redwood Investors, L.P.,
By its General Partner: H&F Redwood Investors, Inc.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice-President