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EXHIBIT 3(c)
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of May 10, 1999 by and among ZS Pubco I L.P., a Delaware limited partnership
("Buyer") and Summit Investors L.P. ("Summit") and Summit Ventures II L.P.
("Summit II", together with Summit ,the "Sellers", and each individually, a
"Seller").
1. PURCHASE AND SALE OF STOCK.
(a) Upon the terms and subject to the conditions contained herein, each
Seller hereby irrevocably agrees to sell, convey, transfer, assign and deliver
to Buyer the number of shares of common stock, par value $.01 per share (the
"Stock") of ▇▇▇▇ Group Inc. (the "Company") set forth below its name on the
signature page hereto, and Buyer hereby agrees to acquire from the Sellers an
aggregate of 375,215 shares of the Stock (the "Shares") at a price of $6.75 per
share (the "Per Share Price"). The closing of the transactions contemplated
hereby (the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, on the
date that is ten (10) business days after the satisfaction or waiver of all
conditions to closing contained in paragraph 2 below or such other time and/or
place as the parties hereto otherwise agree (the "Closing Date").
(b) Notwithstanding the foregoing, if Buyer determines in its sole
discretion that Buyer may purchase all or any portion of the Shares without
complying with the provisions of clause (i) of paragraph 2 below, Buyer may,
upon 2 business days notice to the Sellers, purchase from each Seller all or any
portion of the Shares to be sold thereby (on a pro rata basis among the Sellers)
at the Per Share Price on the date specified in such notice, which in any event
shall not be prior to JULY 8, 1999, provided that in the event that Buyer
purchases less than all of the Shares from the Sellers, Buyer hereby agrees to
purchase and each Seller agrees to sell to Buyer, the balance of the Shares to
be sold thereby at the Per Share Price on the Closing Date. Any such purchase of
Shares from a Seller in accordance with the previous sentence shall be deemed a
Closing hereunder.
(c) At the Closing Buyer shall pay to each Seller an aggregate amount
equal to the product of the number of Shares to be purchased on such date from
such Seller and the Per Share Price (the "Purchase Price"), plus, if and to the
extent the Closing occurs on or after August 1, 1999 interest thereon at a rate
of 7% per annum pro rated for the number of days in the period from August 1,
1999 to the Closing Date, by cashier's or certified check or wire transfer of
immediately available funds to an account or accounts designated by such Seller,
and in consideration of the Purchase Price, Sellers shall deliver or cause to be
delivered to the Buyer, certificates evidencing the number of Shares being
purchased at such Closing free and clear of any and all liens, claims, pledges,
charges, encumbrances or restrictions on transfer whatsoever, in each case duly
endorsed in blank for transfer or accompanied by stock powers duly executed in
blank or by such other instruments for transfer as shall be reasonably
acceptable to Buyer.
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2. CLOSING CONDITIONS. The obligation of Buyer to purchase the Stock from
Sellers hereunder is subject and conditioned upon the satisfaction of the
following conditions: (i) the prior receipt by Buyer of the approval (without
any condition which in Buyer's reasonable judgment is materially adverse) to the
acquisition of the Stock by the insurance commissioner of the State of Rhode
Island and such other consents as may be required pursuant to the Insurance
Holding Company Systems Laws and Regulations of the State of Rhode Island (the
"Insurance Laws") and (ii) the expiration of all applicable waiting periods, if
any, pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended ("HSR Act"). Buyer hereby agrees to use commercially reasonable efforts
to obtain the approvals (or waivers) required hereunder and shall promptly file
any such documents or provide such information as may be reasonably necessary to
obtain such approvals (or waivers) and shall promptly respond to any inquiries
from the relevant government officials with respect thereto.
3. REPRESENTATIONS & WARRANTIES.
(a) Sellers. As a material inducement to Buyer to purchase the
Shares, each Seller hereby represents and warrants that: (i) this Agreement
constitutes the valid and legally binding obligation of the Seller, enforceable
in accordance with its terms and conditions; (ii) Seller is sophisticated in
financial matters and is able to evaluate the risks and benefits of the sale of
the Shares; Seller has determined that the sale of the Shares is suitable for
the Seller, based upon its financial situation and needs, as well as its other
securities holdings; (iii) Seller has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the sale of the Shares
and has had full access to such other information concerning the Company and its
subsidiaries and affiliates as he or it, as the case may be, has requested in
order to evaluate the merits and risks inherent in selling the Shares; (iv)
Seller has received and reviewed, or has had the opportunity to review, all
reports and other documents filed by the Company with the Securities and
Exchange Commission; and (v) Seller acknowledges that one or more affiliates of
Buyer may be directors or officers of the Company, and Seller acknowledges and
agrees that OTHER THAN THE REPRESENTATIONS SPECIFIED IN THIS AGREEMENT, NO PARTY
HAS MADE NOR IS SELLER RELYING UPON ANY EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES OF ANY TYPE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR
WARRANTIES CONCERNING THE COMPANY'S PAST OR FUTURE PERFORMANCE, WHETHER POSITIVE
OR NEGATIVE, OR AS TO THE CURRENT OR FUTURE VALUE OF THE SHARES. THE PARTIES
AGREE THAT THE PER SHARE PRICE IS NOT BASED ON ANY CALCULATION OF THE COMPANY'S
PAST OR FUTURE PERFORMANCE, BUT HAS BEEN AGREED BY THE PARTIES IN AN ARM'S
LENGTH NEGOTIATION.
(b) Buyer. As a material inducement to Sellers to sell the Shares,
Buyer hereby represents and warrants that: (i) this Agreement constitutes the
valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions; (ii) assuming compliance with the Insurance Laws
and the HSR Act, the Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement
and (iii) to the knowledge of Buyer, Buyer is not aware of any material
non-public information not known to Sellers, which, if known
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to Sellers, Buyer reasonably believes would have a material adverse influence on
Sellers' decision to sell the Shares.
4. GENERAL PROVISIONS.
(a) Termination. In the event that the Closing shall not have
occurred on or prior to the earlier of (i) December 31, 1999 and (ii) the date
that is 10 business days after the date of receipt of all necessary approvals
(or waivers) required under paragraph 2 above have been obtained (including
without limitation any such approval required of the Rhode Island Insurance
Department), either Buyer or Sellers shall have the right to terminate this
Agreement by giving written notice to the other and the sale and purchase of the
Stock may be abandoned. If this Agreement is terminated pursuant to this
paragraph all rights and obligations of the parties hereunder shall terminate
and no party shall have any liability to the other party except for obligations
of the parties hereto with respect to confidentiality, which shall survive the
termination of this Agreement.
(b) Confidentiality. Each of Buyer and each Seller agrees that
neither it nor any of its directors, officers, employees, agents or affiliates,
shall make any public announcement with respect to this Agreement or the
transactions contemplated hereby, or disclose the terms or existence of this
Agreement to any third party, except to the extent required by applicable law,
without the prior written consent of the other party hereto.
(c) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by
Buyer, Sellers and their respective successors and assigns.
(d) CHOICE OF LAW. THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS OR CHOICE OF LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION
WHICH WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THEN
THE STATE OF NEW YORK.
(e) Entire Agreement. This Agreement contains the complete agreement
between the parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date and year first above written.
ZS PUBCO I L.P.
By: ZS PUBCO I L.L.C., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
SUMMIT INVESTORS L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
Number of Shares transferred:
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SUMMIT VENTURES II L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
Number of Shares transferred:
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