EXHIBIT 2
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement, dated as of May 7, 2003, is by and
between MacDermid, Incorporated ("MACDERMID") and Citicorp Venture Capital Ltd
("CVC"). MacDermid and CVC are sometimes collectively referred to as the
"PARTIES" and each individually as a "PARTY."
WHEREAS, CVC is the holder of 2,201,720 shares of MacDermid's common
stock (the "SHARES");
WHEREAS, CVC desires to sell 1,350,000 of the Shares (the "PURCHASED
SHARES") and MacDermid desires to purchase such Shares in accordance with the
terms and conditions set forth herein;
WHEREAS, MacDermid desires to obtain an option to purchase the
remaining 851,720 Shares (the "REMAINING SHARES") and CVC desires to grant such
an option in accordance with the terms and conditions set forth herein; and
WHEREAS, CVC desires to obtain an option to sell the Remaining Shares
to MacDermid (if not otherwise purchased by MacDermid pursuant to the above
referenced purchase option) and MacDermid desires to grant such an option in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound by the terms
and conditions of this Agreement, the Parties hereby agree as follows:
1. PURCHASE AND SALE OF MACDERMID COMMON STOCK.
1.1 Purchase and Sale. Upon the terms and subject to the
conditions contained herein, CVC hereby agrees to sell and transfer, free and
clear of all Liens (as defined below), all of its right, title and interest in
the Purchased Shares to MacDermid, and MacDermid hereby agrees to purchase the
Purchased Shares for a purchase price per Share of $22.60 for an aggregate
purchase price of $30,510,000.
1.2 Closing. The closing of the transactions contemplated by
Section 1.1 above shall take place on the sooner to occur of (i) the third
business day following the execution date of this Agreement or (ii) May 16,
2003, in either instance at the Company's offices in Waterbury, Connecticut or
at such other time and place as the Parties shall mutually agree. At the
closing, (i) CVC shall validly transfer to MacDermid, by all necessary and
appropriate assignments, stock transfer powers and other instruments of transfer
and conveyance, free and clear of all Liens, all of its right, title and
interest in and to the Purchased Shares and (ii) MacDermid shall deliver the
purchase price therefor, via wire transfer to CVC.
2. OPTION TO PURCHASE REMAINING SHARES.
2.1 Exercise of Option to Purchase. MacDermid shall have and
CVC hereby grants to MacDermid, the option, but not the obligation to purchase
and CVC shall have the obligation to sell all of the Remaining Shares (the
"PURCHASE OPTION"). The Purchase Option shall be exercisable for the period
commencing on the date of closing referenced in Section 1.2 above and ending on
November 3, 2003 (the "PURCHASE OPTION TERMINATION DATE"), in one or more
tranches, by MacDermid's delivery of one or more written notices (which notices
shall include a calculation of the purchase price per Share as determined below)
to CVC on or prior to the Purchase Option Termination Date. The purchase price
per Share shall be an amount equal to the average closing sale prices for
MacDermid common stock on The New York Stock Exchange for the 10 consecutive
trading days immediately preceding the date of MacDermid's exercise notice, as
reported in The Wall Street Journal; however the purchase price per Share
hereunder shall be no less than $22.60 or more than $25. If the average exceeds
$25/Share, the purchase price shall be $25/Share and if the average is less than
$22.60/Share, the purchase price shall be $22.60/Share.
2.2 Closing. The closing of each of the transactions
contemplated by Section 2.1 above shall take place no later than 3 business days
following the delivery by MacDermid of each of its option exercise notice(s) to
CVC at the Company's offices in Waterbury, Connecticut or at such other time and
place as the Parties shall mutually agree. At the closing, (i) CVC shall validly
transfer to MacDermid, by all necessary and appropriate assignments, stock
transfer powers and other instruments of transfer and conveyance, free and clear
of all Liens, all of its right, title and interest in and to the number of the
Remaining Shares specified in MacDermid's option exercise notice and (ii)
MacDermid shall deliver the purchase price therefor via wire transfer to CVC.
3. OPTION TO SELL REMAINING SHARES.
3.1 Exercise of Option to Sell. If MacDermid does not exercise
in its entirety the Purchase Option in accordance with Section 2 above, CVC
shall have and MacDermid hereby grants to CVC the option but not the obligation
to sell and to require MacDermid to purchase, and upon such exercise MacDermid
shall have the obligation to purchase, all of the Remaining Shares as to which
MacDermid has not exercised the Purchase Option (the "SALE OPTION"). The Sale
Option shall be exercisable from 9:00 am EST on November 4, 2003 until 5:00 pm
EST on November 7, 2003 by CVC's delivery of a written notice (which notice
shall include a calculation of the purchase price per Share as determined below)
to MacDermid prior to 5:00 pm EST on November 7, 2003. The purchase price per
Share shall be an amount equal to the average closing sale prices for MacDermid
common stock on The New York Stock Exchange for the 10 consecutive trading days
immediately preceding the date of CVC's exercise notice, as reported in The Wall
Street Journal; however the purchase price per Share hereunder shall be no less
than $22.60 or more than $25. If the average exceeds $25/Share, the purchase
price shall be $25/Share and if the average is less than $22.60/share, the
purchase price shall be $22.60/Share.
3.2 Closing. The closing of the transactions contemplated by
Section 3.1 above shall take place no later than three (3) business days after
the delivery of the notice
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exercising the Sale Option by CVC to MacDermid at the Company's offices in
Waterbury, Connecticut or at such other time and place as the Parties shall
mutually agree. At the closing, (i) CVC shall validly transfer to MacDermid, by
all necessary and appropriate assignments, stock transfer powers and other
instruments of transfer and conveyance, free and clear of all Liens, all of its
right, title and interest in and to the Remaining Shares as to which MacDermid
has not exercised the Purchase Option and (ii) MacDermid shall deliver the
purchase price therefor via wire transfer to CVC.
4. REPRESENTATIONS AND WARRANTIES OF CVC. CVC represents and warrants
to MacDermid that the following representations and warranties are true and
correct as of the date hereof and as of the date of each closing hereunder.
4.1 Authority. CVC has all corporate power and authority
necessary to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by CVC of this
Agreement, the performance by CVC of its obligations hereunder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of CVC. This Agreement
is the legal, valid and binding obligation of CVC, enforceable against CVC in
accordance with its terms.
4.2 No Violations. The execution and delivery of this
Agreement and the consummation of the transactions contemplated thereby shall
not (i) contravene any provisions of CVC's charter documents; (ii) violate or
constitute a breach of any decision, judgment, or order of any court or
arbitration board or of any governmental department, commission, board, agency,
or instrumentality, domestic or foreign, by which CVC is bound or to which it or
any of Shares are subject; or (iv) violate any applicable law, rule, or
regulation to which CVC or any of the Shares are bound.
4.3 No Consents or Approvals of Governmental Authorities or
Others. No consent or approval of, or filing and expiration of a waiting period
or a period for disapproval by, any governmental authority or other third party,
is required for the sale of the Shares by CVC or for the consummation the
transactions contemplated by this Agreement.
4.4 Title to Shares. CVC owns the Shares free and clear of any
claims, charges, liens, security interests, encumbrances or any other
restrictions and such Shares are not bound by or subject to any proxy,
agreement, voting trust or other restriction regarding the transfer or voting
thereof (collectively, the "LIENS"), and good and marketable title to such
Shares shall be transferred to MacDermid at the closing(s) hereunder free and
clear of any Liens.
5. REPRESENTATIONS AND WARRANTIES OF MACDERMID. MacDermid represents
and warrants to CVC that the following representations and warranties are true
and correct as of the date hereof and as of the date of each closing hereunder.
5.1 Authority. MacDermid has all corporate power and authority
necessary to enter into and perform this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by MacDermid of
this Agreement, the performance by MacDermid its obligations hereunder and the
consummation of the transactions contemplated hereby have
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been duly and validly authorized by all necessary corporate action on the part
of MacDermid. This Agreement is the legal, valid and binding obligation of
MacDermid, enforceable against MacDermid in accordance with its terms.
5.2 No Violations. The execution and delivery of this
Agreement and the consummation of the transactions contemplated thereby shall
not (i) contravene any provisions of MacDermid's charter documents; (ii) violate
or constitute a breach of any decision, judgment, or order of any court or
arbitration board or of any governmental department, commission, board, agency,
or instrumentality, domestic or foreign, by which MacDermid is bound or to which
it is subject; or (iv) violate any applicable law, rule, or regulation to which
MacDermid is bound.
6. MISCELLANEOUS PROVISIONS.
6.1 No Further Sales. On and after the date hereof and until
the close of business on November 3, 2003, CVC covenants and agrees that it will
not sell any of the Shares. After expiry of the Purchase Option, CVC shall be
free to sell the Shares. Nothing contained herein shall affect the registration
rights previously granted to CVC pursuant to the registration rights agreement
between the parties.
6.2 Assignment. This Agreement shall be binding on and inure
to the benefit of the Parties and their successors and permitted assigns.
Neither Party shall assign this Agreement or any of its rights, obligations or
privileges under this Agreement, including, without limitation, by operation of
law, without the prior written consent of the other Party, except that MacDermid
may assign this Agreement to any of its affiliates.
6.3 Governing Law; Jurisdiction. This Agreement shall be
construed in accordance with the internal laws, without regard to conflicts of
interest principles, of the State of Connecticut.
6.4 Severability. In the event that any one or more of the
provisions (or any part thereof) contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, then to
the maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement;
provided, however, that if the deletion of any provision hereof frustrates an
essential purpose of this Agreement or material rights of a Party, the Parties
shall seek in good faith alternative provisions or arrangements to achieve the
same purposes as the invalid, illegal or unenforceable provision.
6.5 Integrated Document. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof, and all
prior agreements shall be deemed merged into the provisions of and superseded by
this Agreement. No amendment or supplement hereof shall be effective or binding
on either Party hereto unless reduced to writing and executed by the duly
authorized representatives of both Parties.
6.6 Notices. Any notice given in connection with this
Agreement shall be in writing and shall be delivered (i) by certified first
class mail, return receipt requested, (ii) by a
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nationally-recognized express courier delivery service, (iii) by hand, or (iv)
by facsimile transmission, in each case addressed to the Parties as follows:
IF TO CVC TO: WITH A COPY TO:
Citicorp Venture Capital, Ltd. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Esq.
IF TO MACDERMID TO: WITH A COPY TO:
MacDermid, Incorporated ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ World Trade Center West
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. Fax: (▇▇▇) ▇▇▇-▇▇▇▇
General Counsel and Secretary Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any such address may be changed by written notice given in accordance herewith.
Any notice shall be deemed delivered as follows: (a) if given in the manner
described in clause (i), five (5) days after being deposited with the U.S.
Postal Service, (b) if given in the manner described in clause (ii), the next
business day after being deposited for delivery with the courier; (c) if given
in the manner described in clause (iii), when delivered; and (d) if given in the
manner described in clause (iv), when transmitted (provided that the sender
receives and retains electronic confirmation of the successful completion of
such facsimile transmission).
6.7 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement
as of the day and year first written above.
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MACDERMID, INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CITICORP VENTURE CAPITAL LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VP
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