EXECUTION COPY
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EXHIBIT 4
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SECURITIES PURCHASE AGREEMENT
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Dated as of January 31, 2003
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▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
New York, New York
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TABLE OF CONTENTS
Page
1. PURCHASE AND SALE OF UNITS ............................................................................ 1
1.01. The Units .................................................................................... 1
1.02. Purchase Price and Closing ................................................................... 1
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER ..................................................... 1
2.01. Lawful Owner; Title; Encumbrances ............................................................ 2
2.02. Authority .................................................................................... 2
2.03. Due Execution; Delivery and Performance ...................................................... 2
2.04. Consent; No Conflict ......................................................................... 2
2.05. Delivery Title ............................................................................... 2
2.06. Compliance with Securities Laws .............................................................. 2
2.07. Brokers ...................................................................................... 3
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ...................................................... 3
3.01. Organization and Standing of the Purchasers .................................................. 3
3.02. Authority; Enforceability .................................................................... 3
3.03. Acquisition for Investment ................................................................... 3
4. CONDITIONS AT CLOSING ................................................................................. 4
4.01. Purchasers' Obligation ....................................................................... 4
5. COVENANTS OF THE SHAREHOLDER AND OTHER AGREEMENTS ..................................................... 4
5.01. Stop Transfer ................................................................................ 4
5.02. Taxes ........................................................................................ 4
5.03. No Integration ............................................................................... 5
5.04. Issuance of Certificates ..................................................................... 5
5.05. Unrestricted Securities ...................................................................... 5
6. DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 5
6.01. Certain Defined Terms ........................................................................ 5
7. INDEMNIFICATION ....................................................................................... 7
7.01. General Indemnity ............................................................................ 7
7.02. Indemnification Procedure .................................................................... 7
8. MISCELLANEOUS ......................................................................................... 8
8.01. No Waiver; Cumulative Remedies ............................................................... 8
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TABLE OF CONTENTS
(continued)
Page
8.02. Amendments, Waivers and Consents ............................................................. 8
8.03. Addresses for Notices ........................................................................ 9
8.04. Costs, Expenses and Taxes .................................................................... 9
8.05. Binding Effect; Assignment ...................................................................10
8.06. Survival of Representations and Warranties ...................................................10
8.07. Prior Agreements .............................................................................10
8.08. Severability .................................................................................10
8.09. Confidentiality ..............................................................................10
8.10. Governing Law ................................................................................10
8.11. Public Announcements .........................................................................11
8.12. Consent to Jurisdiction ......................................................................11
8.13. Waiver of Jury Trial .........................................................................11
8.14. Headings .....................................................................................11
8.15. Counterparts .................................................................................11
8.16. Further Assurances ...........................................................................12
8.17. Certain Events ...............................................................................12
8.18. Specific Enforcement .........................................................................12
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SECURITIES PURCHASE AGREEMENT
Dated as of January 31, 2003
Each of the Purchasers Listed
on Schedule 1.01
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ INVESTMENTS, LLC, a Connecticut limited liability company (the
"Shareholder"), hereby agrees with each of you as follows:
1. PURCHASE AND SALE OF UNITS
1.01. The Units. The Shareholder has authorized the sale of (i) 100,000
shares of shares of Common Stock (the "Shares") of nymagic, Inc., a New York
corporation (the "Company"), beneficially owned by the Shareholder and (ii)
options (the "Options") in the form of Exhibit A hereto to purchase an
additional 100,000 shares of Common Stock (such additional 100,000 shares of
Common Stock in the aggregate issuable from time to time upon exercise of the
Options, collectively, the "Option Shares") at a purchase price of $21.00 per
Unit, to the persons (individually, a "Purchaser" and collectively, the
"Purchasers") and in the respective amounts set forth in Schedule 1.01 hereto.
1.02. Purchase Price and Closing. The Shareholder agrees to sell to the
Purchasers and, in consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this Agreement,
the Purchasers, severally, but not jointly, agree to purchase that number of the
Units set forth opposite their respective names in Schedule 1.01. The aggregate
purchase price of the Units being acquired by each Purchaser is set forth
opposite such Purchaser's name in Schedule 1.01. The closing of the purchase and
sale of the Units to be acquired by the Purchasers from the Shareholder under
this Agreement (the "Closing") shall take place (including by means of courier,
facsimile and electronic transmissions) at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on January
31, 2003 (the "Closing Date"). At the Closing, the Shareholder will deliver to
each Purchaser certificates for the number of (i) Shares and (ii) Options, in
each case, set forth opposite its name under the heading "Number of Common
Shares" and "Number of Options", as applicable, in Schedule 1.01 registered, in
each case, in such Purchaser's name (or its nominee), against delivery of a
transfer of funds to the account of the Shareholder by wire transfer,
representing the cash consideration for the Units set forth opposite such
Purchaser's name under the heading "Aggregate Purchase Price" on Schedule 1.01.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholder hereby represents and warrants to the Purchasers, as of
the Closing Date, as follows:
2.01. Lawful Owner; Title; Encumbrances. The Shareholder is the sole
record and beneficial owner of the Shares and the Option Shares to be sold by
the Shareholder pursuant to this Agreement and the Options and has good, valid
and clear title to the Shares and Option Shares, free of any and all
restrictions on transfer, liens, encumbrances, security interests, equities,
claims, equity, option, proxy, voting restriction, voting trust or agreement,
understanding, arrangement, right of first refusal, limitation of disposition
and other defects whatsoever ("Encumbrances").
2.02. Authority. The Shareholder has full legal right, capacity, power
and authority, and all authorizations and approvals required by law, to enter
into this Agreement and the Options and to sell, assign, transfer and deliver
the Shares, the Options and, upon exercise, the Option Shares to be sold by the
Shareholder in the manner provided herein or therein. The Shareholder is a
sophisticated investor with knowledge and experience in business and financial
matters and the transactions contemplated by this Agreement and the Options and
are appropriate for the Shareholder to enter into and perform.
2.03. Due Execution; Delivery and Performance. This Agreement and the
Options have been duly executed and delivered by or on behalf of the Shareholder
and each is a legal, valid and binding agreement of the Shareholder, enforceable
in accordance with their respective terms.
2.04. Consent; No Conflict. The execution, delivery and performance of
this Agreement and the Options by the Shareholder, the compliance by the
Shareholder with all the provisions hereof and thereof and the consummation by
the Shareholder of the transactions contemplated hereby and thereby will not (A)
require the Shareholder to obtain any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or agency
(except as such may be required under the securities or blue sky laws of the
various states or as have been or will be obtained), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
any indenture, loan agreement, mortgage, deed of trust, lease, license or other
agreement or instrument to which the Shareholder is a party or by which the
Shareholder or any property of the Shareholder is bound or (C) to the
Shareholder's Knowledge, violate or conflict with any applicable federal, state,
local or foreign law, statute, rule, regulation or judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Shareholder or any property of the Shareholder.
2.05. Delivery Title. Upon delivery of and payment for the Shares and
the Options to be sold by the Shareholder pursuant to this Agreement, good,
valid and clear title to such Shares and Options will pass to the Purchasers,
free and clear of all Encumbrances. Upon exercise of the Options, in whole or in
part, from time to time, and payment of the exercise price therefor in
accordance with the terms of the Options, good, valid and clear title to the
Option Shares will pass to the Purchasers, free and clear of all Encumbrances.
2.06. Compliance with Securities Laws. Neither the Shareholder nor any
Person acting on behalf of the Shareholder has conducted any "general
solicitation," as described in Rule 502(c) under Regulation D promulgated under
the Securities Act ("Regulation D"), with respect to any of the Units being
offered hereby. Neither the Shareholder nor any Person acting on its behalf, has
directly or indirectly made any offers or sales of any security or solicited any
offers to buy any security under circumstances that would prevent the parties
hereto from
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consummating the transactions contemplated hereby pursuant to an exemption from
registration under the Securities Act. The transactions contemplated by this
Agreement and the Options are exempt from the registration requirements of the
Securities Act, assuming the accuracy of the representations and warranties
herein of each Purchaser to the extent relevant for such determination. The sale
of the Units by the Shareholder to each Purchaser will not be integrated with
any other sale of the Company's securities (past, current or future) by the
Shareholder in a manner which would result in a violation of the Securities Act.
2.07. Brokers. No broker, finder, investment banker or other Person is
entitled to receive any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement and the Options
based upon arrangements made by or on behalf of the Shareholder.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers, severally, but not jointly, hereby represents
and warrants to the Shareholder, as of the Closing Date, as follows:
3.01. Organization and Standing of the Purchasers. Each of the
Purchasers that is not an individual (an "Entity Purchaser") is a corporation,
partnership or limited liability company duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization.
3.02. Authority; Enforceability. Each of the Entity Purchasers has all
requisite corporate, partnership or limited liability company power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by each of
the Entity Purchasers have been duly and validly authorized by all requisite
corporate, partnership or limited liability company proceedings, as the case may
be, on the part of each of the Purchasers. This Agreement when executed and
delivered by each of the Purchasers is a valid and binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except that (a)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, rehabilitation, liquidation, conservatorship, receivership or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
3.03. Acquisition for Investment. Each of the Purchasers is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D.
Each of the Purchasers is acquiring the Units solely for its own account for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof, and it has no present intention or plan to effect any
distribution of the Units, the Shares, the Options or the Option Shares. Each of
the Purchasers represents that it has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment in the Units and that it is able to bear the economic risk associated
with such investment and can afford the complete loss of such investment. The
Purchasers acknowledge that the offer and sale of the Shares, the Options and
the Option Shares have not been registered under the Securities Act.
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4. CONDITIONS AT CLOSING
4.01. Purchasers' Obligation. The obligation of each Purchaser to close
the transactions contemplated by this Agreement is subject to the satisfaction
on or prior to the date of the Closing of the following conditions:
(a) An opinion of ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Shareholder, dated the Closing Date, addressed to the Purchasers, substantially
in the form and to the effect of Exhibit B hereto.
(b) Fully executed copy of the Company Purchase Agreement,
dated the Closing Date, in form and substance satisfactory to the Purchasers
which shall be in full force and effect.
(c) Fully executed copy of the Registration Rights Agreement,
dated the Closing Date, in form and substance satisfactory to the Purchasers
which shall be in full force and effect.
(d) Duly executed certificates representing the Shares and the
Options, dated the Closing Date, being purchased by each Purchaser.
(e) Duly executed certificates representing the shares of
Common Stock and options to purchase Common Stock being purchased by each
Purchaser from the Company.
5. COVENANTS OF THE SHAREHOLDER AND OTHER AGREEMENTS
5.01. Stop Transfer. The Shareholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Shareholder's beneficially
owned shares of Common Stock to the extent such transfer would result in the
Shareholder being unable to deliver Option Shares upon any exercise of the
Options, in whole or in part, unless such transfer is made in compliance with
this Agreement and the Options.
5.02. Taxes. The Shareholder will pay, subject to a cap under which
Shareholder's liability for such taxes is limited to $1,000, all federal, state
and local transfer, sales or similar taxes or charges imposed on the transfers
of the Shares and Options provided for herein or on the exercise of the Options
or issuance of the Option Shares pursuant to an exercise of the Options;
provided that the $1,000 limitation described above shall not apply to (i) any
such taxes that would not have been imposed but for some connection between the
Shareholder and the taxing jurisdiction (other than the mere transfer of Shares,
Options and Option Shares hereunder or under the Option) and (ii) any such taxes
imposed as a result of an aggregation of the transfers provided for herein or on
exercise of the Options with other transfers made by the Shareholder or any
Person related to the Shareholder. The Purchaser shall pay all federal, state
and local transfer, sales or similar taxes or charges imposed on the transfers
of the Shares and Options provided for herein or on the exercise of the Options
or issuance of the Option Shares pursuant to an exercise of the Options that the
Shareholder is not responsible for paying pursuant to the terms of the preceding
sentence. The Shareholder will deliver to the Purchaser on or prior to the
Closing Date a properly completed and executed United States Treasury Department
Form W-9
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(or other applicable form in lieu thereof). The Shareholder will not, however,
be responsible under this Section 5.02 for any tax imposed as a result of the
transfer or delivery of Option Shares upon an exercise of the Options to any
Person other than the registered holder of the Option surrendered for exercise.
5.03. No Integration. The Shareholder will not make any offers or sales
of any security under circumstances that would cause the offering of the Units
to be integrated with any other offering of securities issued by the Company
that are held by the Shareholder for purposes of any registration requirement
under the Securities Act.
5.04. Issuance of Certificates. The Purchasers acknowledge that each
certificate representing the Shares, the Options and the Option Shares shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
"THE OFFER AND SALE OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS THEREOF OR
PURSUANT TO AN EXEMPTION THEREFROM."
The Shareholder will not give to the transfer agent for the Common Stock (the
"Transfer Agent") any instruction with respect to the Shares and the Option
Shares inconsistent with this Agreement.
5.05. Unrestricted Securities. If (i) the Shares, the Options or the
Option Shares represented by a certificate have been sold pursuant to an
effective registration statement filed under the Securities Act, (ii) a holder
of the Shares, the Options or the Option Shares provides the Company and the
Transfer Agent, as applicable, with instructions to the effect that a public
sale or transfer of any of such securities may be made without registration
under the Securities Act and such sale either has occurred or may occur without
restriction on the timing or manner of such sale or transfer or (iii) the
Shares, the Options or the Option Shares represented by a certificate can be
sold without restriction as to the number of securities sold under Rule 144(k)
promulgated under the Securities Act, the Shareholder will use its reasonable
best efforts to cause the Company to permit the transfer of the Shares, the
Options or the Option Shares, as the case may be, and the Shareholder will use
its reasonable best efforts to cause the Transfer Agent or the Company, as
applicable, to issue one or more certificates, free from any restrictive legend,
in such name and in such denominations as specified by such holder.
6. DEFINITIONS AND ACCOUNTING TERMS
6.01. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall mean any officer or director of any Person or holder
of five percent (5%) or more of any class of capital stock of any Person, or any
member of their respective immediate
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families or any corporation or other entity directly or indirectly controlled by
one or more of such officers, directors or 5% shareholders or members of their
immediate families.
"Agreement" shall mean this Securities Purchase Agreement, including
all amendments, modifications or supplements thereto.
"Board of Directors" shall mean the Board of Directors of the Company,
as constituted from time to time.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Company.
"Closing" shall have the meaning assigned to such term in Section
1.02.
"Closing Date" shall have the meaning assigned to such term in Section
1.02.
"Common Stock" shall mean (a) the Company's Common Stock, par value
$1.00 per share, (b) any other capital stock of any class or classes (however
designated) of the Company, authorized on or after the date hereof, the holders
of which shall have the right, without limitation as to amount, either to all or
to a share of the balance of current dividends and liquidating dividends after
the payment of dividends and distributions on any shares entitled to preference,
and the holders of which shall ordinarily, in the absence of contingencies or in
the absence of any provision to the contrary in the Certificate of
Incorporation, be entitled to vote for the election of a majority of directors
of the Company (even though the right so to vote has been suspended by the
happening of such a contingency or provision), and (c) any other securities into
which or for which any of the securities described in (a) or (b) may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
"Company" shall have the meaning assigned to such term in the
introductory sentence hereof.
"Company Purchase Agreement" shall mean that certain Securities
Purchase Agreement, dated the date hereof, among the Purchasers and the Company.
"Confidential Information" shall mean information belonging to or in
possession of the Shareholder which is of a confidential, proprietary or trade
secret nature that is furnished or disclosed to any Purchaser under this
Agreement.
"Encumbrances" shall have the meaning assigned to such term in Section
2.01.
"Entity Purchaser" shall have the meaning assigned to such term in
Section 3.01.
"indemnified party" shall have the meaning assigned to such term in
Section 7.02.
"Knowledge" the Shareholder will be deemed to have "Knowledge" of a
particular fact or other matter if the Shareholder is actually aware of such
fact or other matter.
"Options" shall have the meaning assigned to such term in Section
1.01.
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"Option Shares" shall have the meaning assigned to such term in Section
1.01.
"Person" shall mean an individual, corporation, partnership, joint
venture, limited liability company or partnership, trust, university, or
unincorporated organization, or a government or any agency or political
subdivision thereof.
"Purchaser" shall have the meaning assigned to such term in Section
1.01 and shall include the original Purchaser and each holder of Shares, Options
and Option Shares.
"Registration Rights Agreement" shall mean that certain Registration
Rights Agreement, dated as of the date hereof, among the Purchasers and the
Company.
"Regulation D" shall have the meaning assigned to such term in Section
2.06.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated pursuant thereto.
"Shareholder" shall have the meaning assigned to such term in the
introduction to this Agreement.
"Shares" shall have the meaning assigned to such term in Section 1.01.
"Transfer Agent" shall have the meaning assigned to such term in
Section 5.04.
"Unit" shall mean one Share and one Option.
7. INDEMNIFICATION
7.01. General Indemnity. The Shareholder agrees to indemnify and save
harmless each Purchaser (and its directors, officers, Affiliates, consultants,
partners, limited partners, successors and assigns) from and against any and all
losses, liabilities, deficiencies, costs, damages and expenses (including,
without limitation, reasonable attorneys' fees, charges and disbursements)
incurred by such Purchaser as a result of any inaccuracy in or breach of the
representations, warranties or covenants made by the Shareholder herein or in
the Options. Each Purchaser severally but not jointly agrees to indemnify and
save harmless the Shareholder and its directors, officers, Affiliates,
successors and assigns from and against any and all losses, liabilities,
deficiencies, costs, damages and expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) incurred by the
Shareholder as a result of any inaccuracy in or breach of the representations,
warranties or covenants made by such Purchaser herein; provided that, with
respect to each indemnifying party, the amount of indemnity provided to the
indemnified party shall be limited to $2,100,000.
7.02. Indemnification Procedure. Any party entitled to indemnification
under this Section 7 (an "indemnified party") will give written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
promptly after the discovery by such party of any matters giving rise to a claim
for indemnification; provided that the failure of any party entitled to
indemnification hereunder to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Section 7 except to the
extent that the
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indemnifying party is actually prejudiced by such failure to give notice. In
case any action, proceeding or claim is brought against an indemnified party in
respect of which indemnification is sought hereunder, the indemnifying party
shall be entitled to participate in and, unless in the reasonable judgment of
the indemnified party a conflict of interest between it and the indemnifying
party may exist in respect of such action, proceeding or claim, to assume the
defense thereof, with counsel reasonably satisfactory to the indemnified party.
In the event that the indemnifying party advises an indemnified party that it
will contest such a claim for indemnification hereunder, or fails, within thirty
(30) days of receipt of any indemnification notice to notify, in writing, such
party of its election to defend, settle or compromise, at its sole cost and
expense, any action, proceeding or claim (or discontinues its defense at any
time after it commences such defense), then the indemnified party may, at its
option, defend, settle or otherwise compromise or pay such action or claim. In
any event, unless and until the indemnifying party elects in writing to assume
and does so assume the defense of any such claim, proceeding or action, the
indemnified party's costs and expenses arising out of the defense, settlement or
compromise of any such action, claim or proceeding shall be losses subject to
indemnification hereunder. The indemnified party shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any such
action or claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the indemnified party which
relates to such action or claim. The indemnifying party shall keep the
indemnified party fully apprised at all times as to the status of the defense or
any settlement negotiations with respect thereto. If the indemnifying party
elects to defend any such action or claim, then the indemnified party shall be
entitled to participate in such defense with counsel of its choice at its sole
cost and expense. The indemnifying party shall not be liable for any settlement
of any action, claim or proceeding effected without its written consent;
provided that the indemnifying party shall not unreasonably withhold, delay or
condition its consent. Anything in this Section 7 to the contrary
notwithstanding, the indemnifying party shall not, without the indemnified
party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof which imposes any future obligation on
the indemnified party or which does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the indemnified party, a
release from all liability in respect of such claim. The indemnity agreements
contained herein shall be in addition to (a) any cause of action or similar
right of the indemnified party against the indemnifying party or others, and (b)
any liabilities the indemnifying party may be subject to pursuant to the law.
8. MISCELLANEOUS
8.01. No Waiver; Cumulative Remedies. No failure or delay on the part
of any party to this Agreement or the Options in exercising any right, power or
remedy hereunder or thereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder or thereunder. The remedies herein and therein provided are cumulative
and not exclusive of any remedies provided by law.
8.02. Amendments, Waivers and Consents. Except as otherwise provided in
this Agreement, (i) changes in, termination or amendments of or additions to
this Agreement may be made, and compliance with any covenant or provision set
forth herein may be omitted or waived, if the Shareholder shall obtain consent
thereto in writing from the holders of at least a majority of
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the then outstanding Shares, Options and Option Shares (determined on an "as-if
exercised" basis) and shall deliver copies of such consent in writing to any
holders who did not execute such consent and (ii) no consents shall be effective
to reduce the percentage in interest of the Shares, Options and Option Shares
the consent of the holders of which is required under this Section 8.02. Any
waiver or consent may be given subject to satisfaction of conditions stated
therein and any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
8.03. Addresses for Notices. Any notice, demand, request, waiver or
other communication under this Agreement or the Options shall be in writing and
shall be deemed to have been duly given on the date of service, if personally
served, on the date of transmission, if sent by facsimile, receipt confirmed, or
on the third day after mailing, if mailed to the party to whom notice is to be
given, by first class mail, registered, return receipt requested and postage
prepaid, in each case addressed as follows (or to such other address as shall be
designated by the applicable party to the other party in writing in compliance
with this Section):
To the Shareholder: ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to the Purchaser: Conning Capital Partners VI, L.P.
CityPlace II
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
8.04. Costs, Expenses and Taxes. Except as expressly set forth in this
Agreement, the Options or the Company Purchase Agreement, the Purchasers, on the
one hand, and the Shareholder, on the other hand, shall each pay their
respective expenses incurred in connection with the preparation, execution and
delivery of this Agreement and the Options and the issuance of the Shares and
the Options at the Closing. In addition and subject to the limitations set forth
herein, the Shareholder shall pay any and all stamp, or other similar transfer
taxes payable or determined to be payable in connection with the execution and
delivery of this Agreement, the issuance of the Shares, the Options and, upon
exercise of the Options, in whole or in part, from time to time, the Option
Shares and the other instruments and documents to be delivered hereunder or
thereunder, and agrees to save each holder of Shares, Options or Option Shares
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
9
8.05. Binding Effect; Assignment. This Agreement and the Options to
which it is a party shall be binding upon and inure to the benefit of the
Shareholder and each of the Purchasers and their respective heirs, successors
and assigns, except that the Shareholder shall not have the right to delegate
its obligations hereunder or to assign its rights hereunder or any interest
herein except as otherwise provided herein and this Agreement may not be
assigned by any Purchaser without the prior written consent of the Shareholder.
8.06. Survival of Representations and Warranties. All representations
and warranties made in this Agreement, the Options or any other instrument or
document delivered in connection herewith or therewith, shall survive the
execution and delivery hereof or thereof.
8.07. Prior Agreements. This Agreement and the Options and the other
agreements executed and delivered herewith constitute the entire agreement
between the parties and supersede any prior understandings or agreements
concerning the subject matter hereof.
8.08. Severability. The provisions of this Agreement and the Options
are severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of a provision
contained in this Agreement or the Options shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement and the Options; but the terms of this Agreement and the Options
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of a provision, had never been contained herein, and such
provisions or part reformed so that it would be valid, legal and enforceable to
the maximum extent possible.
8.09. Confidentiality. Each Purchaser agrees that it will keep
confidential and will not disclose or divulge any Confidential Information which
such Purchaser may obtain from the Shareholder pursuant to materials submitted
by the Shareholder to such Purchaser pursuant to this Agreement, unless such
information is known, or until such Confidential Information becomes known, to
the public or such Purchaser currently possesses such Confidential Information
or subsequently acquires or independently develops such Confidential Information
other than as a result of any disclosure made to such Purchaser in connection
with the transactions contemplated by this Agreement; provided that a Purchaser
may disclose such Confidential Information (a) on a confidential basis to its
attorneys, accountants, consultants and other professionals, (b) after notice to
the Shareholder to any prospective purchaser of any Shares, Options or Option
Shares from such Purchaser, (c) to any entity controlling, controlled or under
common control with such Purchaser, or to any shareholder, partner or member of
a Purchaser which is a corporation, partnership or limited liability company, or
(d) as required by applicable law; provided, that with respect to subsection (d)
the Purchaser shall give the Shareholder reasonable notice prior to such
disclosure; and provided further, that the Purchaser shall remain liable for any
breach by the individuals or entities referred to in subsections (a), (b) and
(c) of this Section 8.09. Without limitation to the foregoing, Confidential
Information shall not be used by or shared by any Purchaser with any Person,
including its own Affiliates, except for the purpose of evaluating, monitoring
or reporting its investment in the Company.
8.10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
10
NEW YORK, AND WITHOUT GIVING EFFECT TO CHOICE OF LAW PROVISIONS WHICH MIGHT
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
8.11. Public Announcements. Neither the Shareholder nor any Purchaser
shall use any Purchaser's or the Shareholder's name or refer to any Purchaser or
the Shareholder directly or indirectly in connection with such Purchaser's
investment in the Company in any advertisement, news release or professional or
trade publication, or in any other manner, unless otherwise required by law or
with such party's prior consent. The parties hereto agree and acknowledge that
the Shareholder and the Purchasers jointly intend to issue a press release upon
execution of this Agreement and further agree that each will provide the other
the opportunity to review and include reasonable changes prior to such release
and issuance.
8.12. Consent to Jurisdiction. Each party hereto hereby irrevocably
submits to the non-exclusive jurisdiction of any state or federal court sitting
in New York, New York in any action or proceeding arising out of or relating to
this Agreement or any of the transactions contemplated hereby and hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such state court or, to the extent permitted by law,
in such federal court and each party hereto agrees to first initiate any such
claim or proceeding in any such court. Each of the parties hereby irrevocably
consents to the service of process in any such action or proceeding by the
mailing by certified mail of copies of any service or copies of the summons and
complaint and any other process to such party at the address specified in
Section 8.03. The parties agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Section 8.12 shall affect the right of a party to serve legal process in any
other manner permitted by law or affect the right of a party to bring any action
or proceeding in the courts of other jurisdictions except as otherwise provided
in this Section 8.12.
8.13. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND
COVENANTS THAT HE OR IT WILL NOT ASSERT WHETHER AS PLAINTIFF, DEFENDANT, OR
OTHERWISE, ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. ANY
OF THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
8.13 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THE PARTIES
HERETO TO THE WAIVER OF HIS OR ITS RIGHT TO TRIAL BY JURY.
8.14. Headings. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
8.15. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties
11
hereto may execute this Agreement by signing any such counterpart, and shall
become effective when one or more counterparts have been signed by each party
thereto and delivered (including by facsimile) to the other parties.
8.16. Further Assurances. Each party hereto shall execute and deliver
such instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement and the Options.
8.17. Certain Events. The Shareholder agrees that this Agreement, the
Options and such Shareholder's obligations hereunder and thereunder shall attach
to the Shareholder's shares of Common Stock and shall be binding upon any Person
to which legal or beneficial ownership of such shares of Common Stock shall
pass, whether by operation of law or otherwise, including, without limitation,
the Shareholder's heirs, guardians, administrators, or successors.
Notwithstanding any transfer of the Shares, the Options or the Option Shares,
the Shareholder shall remain liable for the performance of all its obligations
under this Agreement and the Options.
8.18. Specific Enforcement. Each Purchaser and the Shareholder
acknowledges and agrees that irreparable damage would occur in the event that
any of the provisions of this Agreement and the Options were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement, the Options
and to enforce specifically the terms and provisions hereof and thereof in any
court of the United States or any state thereof having jurisdiction, this being
in addition to any other remedy to which they may be entitled at law or equity.
[Remainder of Page Left Intentionally Blank; Next Page is the Signature Page]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
▇▇▇▇▇▇▇▇ INVESTMENTS, LLC
By: ______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Member
By: ______________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Member
CONNING CAPITAL PARTNERS VI, L.P.
By: Conning Investment Partners VI, LLC,
its General Partner
By: ______________________________
Name:
Title
Signature Page to Securities Purchase Agreement
1-NY/1561131.1
SCHEDULE 1.01
Schedule of Purchasers
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
Name and Address of Purchaser Aggregate Purchase Number of Shares of Number of Total Units
Price Common Stock Options
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
Conning Capital Partners VI, L.P.
c/o Conning & Company $2,100,000.00 100,000 100,000 100,000
CityPlace II
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
------------------------------------------------- -------------------- --------------------- ----------------- ----------------
TOTAL $2,100,000.00 100,000 100,000 100,000
------------------------------------------------- -------------------- --------------------- ----------------- ----------------