EXHIBIT 10.25
EXCHANGE AGREEMENT
AGREEMENT (this "Agreement") made as of this 5th day of June,
2003 by and between ▇▇▇▇ & ▇▇▇▇▇▇▇ Holdings Corp. ("Holdings Corp."), a Delaware
corporation, with its principal executive office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Fairfax Inc., a Wyoming corporation, with its principal
executive office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, Fairfax Inc. is the owner of all of the outstanding
shares of common stock of Holdings Corp.;
WHEREAS, Fairfax Inc. is the owner of all of the outstanding
shares (the "Holding Inc. Securities") of common stock of ▇▇▇▇ & ▇▇▇▇▇▇▇ Holding
Inc. ("Holding Inc.");
WHEREAS, Holdings Corp. wishes to receive and Fairfax Inc.
desires to transfer the Holding Inc. Securities;
WHEREAS, because Fairfax Inc. already is the owner of all of
the outstanding shares of common stock of Holdings Corp., no additional shares
of common stock of Holdings Corp. will be issued in the exchange and the
transfer of the Holding Inc. Securities will be considered made for income tax
purposes in exchange for shares of common stock of Holdings Corp. (the "Deemed
Exchange"); and
WHEREAS, the Deemed Exchange is intended to be tax-free under
Section 351 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter contained, the parties hereto hereby agree as follows:
1. EXCHANGE OF THE HOLDING INC. SECURITIES
1.1 Subject to the terms and conditions hereof, as soon
as practicable following the execution of the Agreement, Holdings Corp. shall
receive from Fairfax Inc., and Fairfax Inc. shall transfer to Holdings Corp.,
all of the Holding Inc. Securities.
1.2 The aggregate exchange consideration for the Holding
Inc. Securities shall be $1.00 payable to Fairfax Inc.(the "Exchange
Consideration").
1.3 As soon as practicable following the execution of
this Agreement, Fairfax Inc. shall deliver or cause to be delivered to Holdings
Corp.:
(a) stock certificates evidencing the Holding Inc.
Securities endorsed in blank, or accompanied by a
stock power duly executed in blank, in form
satisfactory to Holdings Corp. (see the form of stock
power attached); and
(b) a receipt for the Exchange Consideration.
1.4 As soon as practicable following the execution of
this Agreement, Holdings Corp. shall deliver to Fairfax Inc. the Exchange
Consideration.
2. REPRESENTATIONS AND WARRANTIES OF FAIRFAX INC.
Fairfax Inc. hereby represents and warrants to Holdings Corp.
as follows:
2.1 Fairfax Inc. is the sole and exclusive beneficial
owner and owner of record of all rights, title and interest in and to the
Holding Inc. Securities it is delivering pursuant to this Agreement, free and
clear of all claims and encumbrances of any nature whatsoever.
2.4 The Holding Inc. Securities constitute all of the
issued and outstanding capital stock of Holding Inc.
3. GENERAL
3.1 Each of the parties hereto shall use all efforts to
take, or cause to be taken, all appropriate action and do or cause to be done,
all things necessary, proper or advisable under applicable law, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this agreement and consummate and make effective the transactions
contemplated by this Agreement.
3.2 This Agreement constitutes the entire agreement
between the undersigned parties with respect to the subject matter hereof. It
shall be governed by and construed in accordance with the laws of the State of
New York. It shall be binding upon the parties hereto and their respective
successors and assigns. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which shall constitute one and the
same instrument.
▇▇▇▇ & ▇▇▇▇▇▇▇ HOLDINGS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
FAIRFAX INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF STOCK POWER
FOR EXCHANGE CONSIDERATION RECEIVED, Fairfax Inc. hereby
transfers unto ▇▇▇▇ & ▇▇▇▇▇▇▇ Holdings Corp. 1,000 shares of common stock of
▇▇▇▇ & ▇▇▇▇▇▇▇ Holding Inc. standing in the name of Fairfax Inc. on the books of
▇▇▇▇ & ▇▇▇▇▇▇▇ Holding Inc. represented by Certificate No. (________) herewith
__________, and does hereby irrevocably constitute and appoint_________________,
attorney to transfer the said stock on the books of ▇▇▇▇ & ▇▇▇▇▇▇▇ Holding Inc.
with full power of substitution in the premises.
Dated:
FAIRFAX INC.
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President