EXHIBIT 2
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of July 23, 2003 by and among each and all of those individuals and
entities identified on EXHIBIT A, attached hereto (each a "SELLER" and
collectively, the "SELLERS") and Invemed Catalyst Fund, L.P., a Delaware limited
partnership (the "PURCHASER"), with reference to the following:
WHEREAS, the Sellers collectively own shares of unregistered common
stock in Ambassadors Group, Inc., a Delaware corporation (the "COMPANY"), par
value $0.01 per share, and each Seller wishes to sell the number of shares set
forth opposite each such Seller's name in EXHIBIT A, attached hereto (such
shares collectively, the "COMMON Stock"); and
WHEREAS, the Sellers desire to sell to the Purchaser, and the Purchaser
desires to purchase from the Sellers, the Common Stock.
NOW, THEREFORE, in consideration of the conditions and promises herein
contained, and subject to the terms and conditions of this Agreement, the
parties hereto agree as follows:
1. SALE, PURCHASE AND CLOSING
1.1 At the Closing (defined herein) and subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase from each Seller,
and each Seller agrees to sell to the Purchaser, all right, title and interest
in each Seller's respective portion of the Common Stock, constituting an
aggregate of 1,200,000 shares of Common Stock (the "SHARES"). The parties hereto
acknowledge and agree that on the Closing, of the 1,200,000 Shares, a total of
300,000 Shares may be sold by the children of, and/or trusts controlled by, the
Sellers.
1.2 At the Closing, the Purchaser shall pay an aggregate purchase
price of $20,400,000 (the "PURCHASE PRICE"), constituting $17.00 per Share,
which shall be apportioned to each Seller pro rata.
1.3 The purchase and sale of the Common Stock (the "CLOSING")
shall take place at 10:00 a.m. (local time) on the later of (i) July 29, 2003 or
(ii) the date upon which the closing conditions specified in Article 4 hereof
are met (the "CLOSING DATE") at the offices of Richman, Mann, Chizever, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, PLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ or at such other place and time as the Sellers and the Purchaser shall
mutually agree. Deliveries at the Closing shall be in such form and manner as
described in EXHIBIT B, attached hereto.
2. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each and every Seller severally (and not jointly) represents and
warrants the following:
2.1 The Sellers are the owners of record and hold good and valid
title to the Shares, and the Shares are free of any and all liens, encumbrances,
mortgages, deeds of trust, pledge, assignment, security interests or transfer
restrictions other than those specified herein.
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2.2 Each Seller has full right, power, authority and capacity to
enter into this Agreement and to consummate the transactions contemplated hereby
including, without limitation, the authority to transfer the Shares to the
Purchaser, and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement. Each Seller which is not an
individual has received all approval required for the authorization, execution
and delivery of this Agreement and all transactions contemplated hereunder. This
Agreement has been duly executed and delivered by each Seller and constitutes a
legal, valid and legally binding obligation of each Seller, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
2.3 (a) The performance by each Seller of such Seller's
obligations hereunder will not (i) conflict with or violate any laws in effect
as of the date of this Agreement applicable to such Seller or by which any of
such Seller's properties or assets is bound or (ii) result in any breach of,
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, give to any other entity any right of
termination, amendment acceleration or cancellation of, require payment under,
or result in the creation of a lien or encumbrance on any of the properties or
assets of such Seller pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise, or other instrument or
obligation to which such Seller is a party or by which such Seller or any of
such Seller's properties or assets is bound.
(b) The performance by each Seller of such Seller's
obligations hereunder will not, require such Seller to obtain any consent,
registration, approval, authorization or permit of, to make any filing with, or
to give notification to, any person, including any governmental entities, based
on any law in effect as of the date of this Agreement, except those which have
been or will be timely obtained, made or given, and no lapse of a waiting period
under any law or regulation is necessary or required in connection with the
execution, delivery or performance of this Agreement.
2.4 To each Seller's knowledge, as of the respective dates of
their filing with the Securities and Exchange Commission (the "SEC"), all
reports, registration statements and other filings of the Company, together with
any amendments thereto (the "COMPANY SEC REPORTS") complied, and all such
reports, registration statements and other filings to be filed by the Company
with the SEC prior to the Closing Date will comply, in all material respects
with the applicable requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and the rules and regulations of the SEC promulgated
thereunder, and did not at the time they were filed with the SEC, or will not at
the time they are filed with the SEC, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to each and all of the Sellers as
follows:
3.1 The Purchaser has all requisite power and authority (corporate
or otherwise) to execute, deliver and perform this Agreement and the
transactions contemplated hereby, and the
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execution, delivery and performance by the Purchaser of this Agreement has been
duly authorized by all requisite action by the Purchaser and this Agreement,
when executed and delivered by the Purchaser, constitutes a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.2 The Purchaser acknowledges and agrees that none of the
Sellers, either individually or in the aggregate, nor any of their respective
representatives, affiliates and/or agents, has made any representation or
warranty to the Purchaser about the Company or the Common Stock other than those
representations and warranties set forth in this Agreement, and that such
Purchaser has not relied upon any other representation or warranty, express or
implied, in purchasing the Shares.
3.3 INVESTMENT REPRESENTATIONS
(a) The Shares to be acquired by the Purchaser will be
acquired for investment for the Purchaser's own account, not as a nominee or
agent, and not with a view to the resale or distribution thereof. The Purchaser
has no present intention of selling, granting any participation in, or otherwise
distributing the Shares within the meaning of Section 2(11) of the Securities
Act.
(b) The Purchaser is an "ACCREDITED INVESTOR" as that
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act. The Purchaser understands all issues and risks concerning or related to the
purchase of restricted common stock, including but not limited to limitations on
liquidity, and is able to bear the economic risk of the purchase of the Shares
pursuant to the terms of this Agreement, including a complete loss of the
Purchaser's investment in the Shares.
(c) The Purchaser understands that the Shares have not
been registered under the Securities Act or qualified under any state securities
laws in reliance on exemptions from registration provided thereunder, and
further understands that the Purchaser is acquiring the Shares without being
furnished any literature or prospectus. The Purchaser understands and agrees
that, when acquired by the Purchaser pursuant to this Agreement, the Shares will
be restricted within the meaning of the Securities Act, and may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and shall bear a legend indicating such
restrictions on transfer.
(d) During the course of the transaction contemplated by
this Agreement, and before purchasing the Shares, the Purchaser has had the
opportunity (i) to be provided with financial and other written information
about the Company, (ii) to ask questions and receive answers concerning the
terms and conditions of this Agreement, an investment in the Company, and the
business of the Company and its finances, and (iii) to review all documents,
registration statements and prospectuses publicly filed by the Company. The
Purchaser has, to the extent such Purchaser has availed himself of this
opportunity, received satisfactory information and answers.
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4. CONDITIONS PRECEDENT TO EACH PARTY'S OBLIGATIONS
4.1 The obligation of the Sellers to consummate the Closing shall
be subject to the satisfaction (or waiver by the Sellers) of the following
conditions on or prior to the Closing Date: (i) the representations and
warranties of the Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made on, as of and
with reference to the Closing Date (except to the extent such representations
and warranties specifically relate to a prior date); and (ii) the Sellers shall
have received their pro-rata portion of the Purchase Price.
4.2 The obligation of the Purchaser to consummate the Closing
shall be subject to the satisfaction (or waiver by the Purchaser) of the
following conditions on or prior to the Closing Date: (i) the representations
and warranties of the Sellers contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made on, as of and
with reference to the Closing (except to the extent such representations and
warranties specifically relate to a prior date); (ii) ▇▇▇▇ ▇▇▇▇ shall have been
elected to the Company's Board of Directors in accordance with the terms of the
Management Rights Letter by and among the Company and the Purchaser in
substantially the form attached hereto as EXHIBIT C; (iii) the Company shall
have provided the Purchaser with an executed Registration Rights Agreement by
and among the Company and the Purchaser in substantially the form attached
hereto as EXHIBIT D, and (iv) the Purchaser shall have received from the Seller
certificates registered in the name of the Purchaser representing the Shares.
5. TERMINATION
5.1 TERMINATION. This Agreement may be terminated prior to the
Closing as follows:
(a) at any time on or prior to the Closing Date, by
mutual written consent of the Sellers and the Purchaser;
(b) at the election of the Sellers, if there has been a
material breach of any representation or warranty on the part of the Purchaser
contained in this Agreement, which breach has not been cured within fifteen (15)
days notice to the Purchaser of such breach; or
(c) at the election of the Purchaser, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the Sellers contained in this Agreement, which breach has not been cured
within fifteen (15) days notice to the Sellers of such breach.
If this Agreement so terminates, it shall become null and void and have
no further force or effect, except as provided in Section 5.2.
5.2 SURVIVAL. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, this Agreement shall
become void and of no further force and effect; provided, however, that (a) none
of the parties hereto shall have any liability in respect of a termination of
this Agreement pursuant to Section 5.1(a) and (b) nothing shall relieve any of
the parties from liability for actual damages resulting from a termination of
this Agreement pursuant to Section 5.1(b) or 5.1(c); and provided, further, that
none of the parties hereto shall have any liability
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for speculative, indirect, unforeseeable or consequential damages resulting from
any legal action relating to any termination of this Agreement.
6. MISCELLANEOUS
6.1 No party hereto shall be obligated to pay any commission,
brokerage fee or finder's fee based on any alleged agreement or understanding
between any such party and a third person in respect of the transactions
contemplated hereby.
6.2 No Seller may sell, license, transfer or assign (by operation
of law or otherwise) any of such party's rights or interests in this Agreement
or delegate such party's duties or obligations under this Agreement, in whole or
in part, without the prior written consent of the Purchaser, and the Purchaser
may not sell, license, transfer or assign (by operation of law or otherwise) any
of such party's rights or interests in this Agreement or delegate such party's
duties or obligations under this Agreement (except to any of such party's
affiliates), in whole or in part, without the prior written consent of each and
all of the Sellers or duly authorized representative thereof. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
6.3 All notices, demands and requests of any kind to be delivered
to any party in connection with this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or if sent by
internationally-recognized overnight courier or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
(a) if to Purchaser, to:
Invemed Catalyst Fund, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Present
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to Sellers, to each and all addresses specified
with respect to each Seller in EXHIBIT A
with a copy to:
Richman, Mann, Chizever, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is to be given may have
furnished to the other parties to this Agreement in writing in accordance with
the provisions of this Section 6.3. Any such notice or communication shall be
deemed to have been received (i) in the case of personal delivery, on the date
of such delivery, (ii) in the case of internationally-recognized overnight
courier, on the next business day after the date when sent and (iii) in the case
of mailing, on the third business day following that on which the piece of mail
containing such communication is posted.
6.4 This Agreement, including any and all exhibits hereto,
constitutes the entire agreement between the parties hereto. The provisions of
this Agreement supersede all previous communications, negotiations,
representations or agreements, either oral or written, with respect to any
transaction relating to or arising from this Agreement or terms described
herein. This Agreement may be modified or amended only by a written document
executed by all parties.
6.5 This Agreement and the rights and remedies of each party
arising out of or relating to this Agreement (including, without limitation,
equitable remedies) shall be solely governed by, interpreted under, and
construed and enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of California, as if this
Agreement were made, and as if its obligations are to be performed, wholly
within the State of California.
6.6 This Agreement may be executed in any number of counterparts,
and each such counterpart of this Agreement shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. Facsimile counterpart signatures to this Agreement shall be
acceptable and binding.
6.7 All representations and warranties made by any party in
connection with any transaction contemplated by this Agreement shall survive the
execution and delivery of this Agreement, the performance or consummation of any
transaction described in this Agreement, and the termination of this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
PURCHASER:
INVEMED CATALYST FUND, L.P.
A DELAWARE LIMITED PARTNERSHIP
By: Invemed Catalyst GenPar, LLC,
its general partner
By: Gladwyne Catalyst GenPar, LLC,
its managing member
/s/ ▇▇▇▇▇▇▇ Present
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Name: ▇▇▇▇▇▇▇ Present
Title: Member
SELLERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
EXHIBIT A
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SELLERS
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NAME AND ADDRESS SHARES OF COMMON STOCK
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1. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 600,000 Shares of which 100,000 Shares
c/o Ambassadors Performance Group are to be sold by the children of,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and/or a trusts controlled
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ by, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
2. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 600,000 Shares of which 200,000
▇.▇. ▇▇▇ ▇▇▇ Shares are to be sold by the
children of, and/or trusts controlled
by, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
EXHIBIT B
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MANNER AND FORM OF CLOSING DELIVERIES
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On the Closing and upon the receipt of the Purchase Price, the Sellers shall
cause to be delivered to the Purchaser stock certificates representing the
Shares to be purchased hereunder in a manner and form to be agreed upon in good
faith by the parties.