EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into as of this 13th day of May,
1996, by and between HANSBERGER GLOBAL INVESTORS, INC., a Delaware corporation
with its principal place of business at 515 East Las Olas Boulevard, Fort
Lauderdale, Florida (*HGI*), and VK/AC HOLDING, INC., a Delaware corporation
with its principal place of business at One Parkview Plaza, Oakbrook Terrace,
Illinois (*VK/AC*).
WHEREAS, HGI has authorized 20,000,000 shares of its Common Stock, par
value $.01 per share (*Common Stock*), having the designations, preferences,
limitations and rights provided for in the Amended and Restated Certificate of
Incorporation of HGI (the *Charter*);
WHEREAS, on the date hereof, 7,800,000 shares of Common Stock are issued,
outstanding and held by Thomas L. Hansberger (*Hansberger*) and SLW Family
L.P., a Delaware limited partnership for which Hansberger serves as the sole
general partner (which shares of Common Stock held by Hansberger and SLW
Family L.P. are referred to as the *Hansberger Shares*), and the parties
contemplate that Hansberger, and any officers and employees of HGI as
Hansberger may designate, may subscribe for and purchase up to an additional
200,000 shares of Common Stock for a price per share equal to the cash price
per share paid by VK/AC hereunder;
WHEREAS, the parties contemplate that up to an additional 3,136,000
shares of Common Stock may be issued or reserved for issuance to HGI*s current
and future officers and employees other than Hansberger (collectively, the
*Employees*) pursuant to a restricted stock program, or offered and sold to
such Employees on such terms, as may be established by the Board of Directors
of HGI;
WHEREAS, the parties contemplate that each of Max C. Chapman, Jr. and
Sassoon Holdings Pte Ltd., a Singapore corporation, or an affiliate thereof
(collectively, the *Other Investors*), will subscribe for and purchase 942,000
shares of Common Stock pursuant to separate stock purchase agreements; and
WHEREAS, VK/AC desires to subscribe for and purchase 2,666,000 shares of
Common Stock, and HGI desires to sell such shares to VK/AC.
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and covenants set forth in this Stock Purchase Agreement, and for other good
and valuable consideration, the receipt, sufficiency and adequacy of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Purchase and Sale of Shares of Common Stock. Subject to the terms
and conditions of this Stock Purchase Agreement, at the Closing (as defined in
Section 2.1 below), HGI will issue and sell to VK/AC, and VK/AC will subscribe
for and purchase from HGI, an aggregate of 2,666,000 shares of Common Stock
(the *VK/AC Shares*) for an aggregate purchase price of $1,333,000.
2. Closing Date; Conditions to Closing; Deliveries.
2.1. Closing and Closing Date. Subject to the conditions in
Section 2.2 below, the closing will take place on May 13, 1996, or on such
other date as HGI and VK/AC may agree, at the offices of Morgan, Lewis &
Bockius LLP, 1800 M Street, N.W., Washington, DC or at such other place as HGI
and VK/AC may agree (the *Closing*). The date of the Closing is referred to
as the *Closing Date.*
2.2. Conditions to Closing.
(a) Conditions Precedent to VK/AC*s Obligations to Close.
The obligations of VK/AC to purchase the VK/AC Shares on the Closing will be
subject to the fulfillment on or before the Closing Date of the following
conditions:
(i) The representations and warranties made by
HGI contained in this Stock Purchase Agreement will be true and correct when
made, and will be true and correct on the Closing Date with the same force and
effect as if they had been made on the Closing Date.
(ii) VK/AC will have received from HGI all items
required to be delivered pursuant to Section 2.3(a) below.
(iii) HGI will have received $3,700,000 in
consideration for the Hansberger Shares.
(iv) HGI will have filed the Charter, as amended
and restated substantially in the form attached to this Stock Purchase
Agreement as Exhibit A, with the Secretary of State of the State of
Delaware.
(v) HGI will have amended and restated its
By-Laws substantially in the form of the by-laws (the *By-Laws*) attached to
this Stock Purchase Agreement as Exhibit B.
(vi) Alberto Cribiore will have been or
simultaneously with the Closing will be appointed as a director of HGI.
(b) Conditions Precedent to HGI*s Obligations to Close.
The obligations of HGI to sell to VK/AC the VK/AC Shares on the Closing will
be subject to the fulfillment on or before the Closing Date of the following
conditions:
(i) The representations and warranties made by
VK/AC contained in this Stock Purchase Agreement will be true and correct when
made, and will be true and correct on the Closing Date with the same force and
effect as if they had been made on the Closing Date.
(ii) HGI will have received from VK/AC all items
required to be delivered pursuant to Section 2.3(b) below.
2.3. Deliveries.
(a) Deliveries of HGI at the Closing. HGI will make the
following deliveries to VK/AC on the Closing Date:
(i) A stock certificate registered in the name
of VK/AC for the VK/AC Shares, which stock certificate will bear the legend
set forth in Section 6 below and the legend set forth in Section 7 of the
Shareholders* Agreement (as defined below).
(ii) A certificate, executed by the Chairman of
HGI, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 2.2(a)(i), (iv) and (v) above.
(iii) A copy of a long form good standing
certificate for HGI issued by the Secretary of State of the State of Delaware,
dated as of a date within thirty (30) days of the Closing Date.
(iv) Copies of the Charter and the By-Laws then
in effect, as certified by the Secretary of HGI.
(v) A certificate of incumbency signed by the
Secretary of HGI, certifying the name, title and signature of HGI*s officer
executing this Stock Purchase Agreement and the other agreements to be
executed by HGI in connection with the Closing.
(vi) An opinion letter from counsel to HGI,
substantially in the form attached as Exhibit C, addressed to VK/AC and dated
as of the Closing Date.
(vii) A shareholders* agreement, substantially in
the form attached as Exhibit D (the *Shareholders* Agreement*), executed by
HGI and Hansberger.
(viii) An employment agreement, between HGI and
Hansberger, substantially in the form attached as Exhibit E (the *Employment
Agreement*), executed by HGI and by Hansberger.
(ix) A subordinated credit agreement,
substantially in the form attached as Exhibit F (the *Credit Facility*), and
the subordinated credit note referred to therein (the *Subordinated Note*),
each executed by HGI.
(x) Evidence that HGI has obtained insurance
against such hazards, in such amounts and from such insurers as is reasonably
satisfactory to VK/AC.
(b) Deliveries of VK/AC at the Closing. VK/AC will make
the following deliveries to HGI on the Closing Date:
(i) A certified bank check or wire transfer in
the aggregate amount of the purchase price set forth in Section 1 of this
Stock Purchase Agreement.
(ii) The Shareholders* Agreement, executed by
VK/AC.
(iii) The Credit Facility, executed by VK/AC.
(iv) An opinion letter from special counsel to
VK/AC, substantially in the form attached as Exhibit G, addressed to HGI and
dated as of the Closing Date.
(v) A letter from the legal department of VK/AC
stating those changes or amendments to HGI*s Form ADV that are necessary or
appropriate to reflect thereon the purchase by VK/AC of the VK/AC Shares
pursuant to this Stock Purchase Agreement (other than purely factual matters
stated in this Stock Purchase Agreement) and other matters relating to VK/AC,
its affiliates, and their respective directors, officers, employees and agents
that are required to be disclosed on HGI*s Form ADV.
3. Representations and Warranties of HGI. Except to the extent set
forth on HGI*s Disclosure Schedule delivered by HGI to VK/AC with respect to
only those Sections of this Stock Purchase Agreement specified therein (the
*HGI Schedule*), which HGI Schedule contains, with respect to each matter
disclosed therein, a specific reference to the representation and warranty to
which such matter is an exception, HGI represents and warrants to VK/AC as
follows:
3.1. Organization and Standing. HGI is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware. HGI*s wholly-owned subsidiary, Hansberger Global Investors
Limited (*HGIL*), is a private limited liability company duly organized and
validly existing under the laws of Ireland. HGI and HGIL each has all
requisite corporate power and authority to own and lease its properties and to
conduct its business as presently conducted. HGI and HGIL each is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which it owns or leases properties or
conducts business so as to require such qualification and in which the failure
to qualify would have a Material Adverse Effect on HGI (as defined below).
The minute books and stock records of HGI and HGIL, copies of which have been
provided to VK/AC, are complete and accurate. For purposes of this Stock
Purchase Agreement, *Material Adverse Effect on HGI* means any change or
effect that would be materially adverse to the financial condition, business,
or operations of HGI and HGIL taken as a whole.
3.2. Subsidiaries, Etc. Other than HGIL, HGI has no
subsidiaries and does not own any capital stock, security, partnership
interest or other equity interest of any kind in any corporation, partnership,
joint venture, association or other entity.
3.3. Capitalization. As of the date of this Stock Purchase
Agreement, HGI*s authorized capital stock consists only of 20,000,000 shares
of Common Stock, of which 7,800,000 shares are issued and outstanding. As of
the date of this Stock Purchase Agreement, HGIL*s authorized capital stock
consists only of 1,000,000 Ordinary Shares, of which 160,000 shares are issued
and outstanding. There are no treasury shares held by HGI or HGIL. All
outstanding shares of Common Stock are, and the VK/AC Shares will, when issued
and delivered, be, validly issued, fully paid and non-assessable. All
outstanding shares of HGIL*s Ordinary Shares are validly issued, fully paid
and non-assessable. A current list of the holders of HGI*s shares of Common
Stock and HGIL*s Ordinary Shares is attached to this Stock Purchase Agreement
as HGI Schedule 3.3. Moreover, except as set forth on HGI Schedule 3.3, no
person owns of record or beneficially any shares of Common Stock or shares of
HGIL and, except for the shares of Common Stock to be issued or sold to the
Other Investors or Employees, (i) no subscription, warrant, option,
convertible security or other right (contingent or other) to purchase or
otherwise acquire from HGI or HGIL any equity securities of HGI or HGIL has
been authorized or is outstanding; and (ii) there is no commitment by HGI or
HGIL to issue shares, subscriptions, warrants, options, convertible securities
or other similar rights or to distribute to holders of equity securities any
evidence of indebtedness or assets. Except as set forth in HGI Schedule 3.3,
HGI has no obligation (contingent or other) to purchase, redeem or otherwise
acquire any of its equity securities or any other interest therein or to pay
any dividend or make any other distribution in respect
thereof.
3.4. Authorization. HGI has all necessary corporate power to
enter into this Stock Purchase Agreement and into the Shareholders* Agreement,
the Employment Agreement, the Credit Facility, and the Subordinated Note
(collectively, the *Related Agreements*), to issue and deliver the VK/AC
Shares pursuant to this Stock Purchase Agreement and to carry out the
transactions contemplated by this Stock Purchase Agreement and the Related
Agreements to be carried out by it. The execution, delivery and performance
by HGI of this Stock Purchase Agreement and the Related Agreements and the
consummation by HGI of the transactions contemplated by this Stock Purchase
Agreement and the Related Agreements to be consummated by HGI on or before the
Closing have been duly authorized by all requisite corporate action on the
part of HGI. This Stock Purchase Agreement and the Related Agreements,
assuming the due authorization, execution, delivery and performance of this
Stock Purchase Agreement and the Related Agreements by VK/AC, constitute valid
and binding obligations of HGI, enforceable against it in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors* rights and to general equity principles.
3.5. Breach. Neither HGI nor HGIL is in violation or breach of
or default under, nor has HGI or HGIL received written notice of any violation
or breach of or default under any of the terms, conditions or provisions of,
the Charter or the By-Laws or, in the case of HGIL, Certificate of
Incorporation and Memorandum and Articles of Association of HGIL, or any
indenture, mortgage or deed of trust or other contract, agreement, lease,
instrument, court order, judgment, arbitration award or decree to which it is
a party or by which it is bound, except for any such violation, breach or
default that would not reasonably be expected to have a Material Adverse
Effect on HGI.
3.6. Compliance with Laws.
(a) Each of HGI and HGIL is in compliance with all and
has not received written notice of any violation of or default under any
existing requirements of laws, Federal, state, local and foreign, and existing
requirements of all governmental bodies or agencies having jurisdiction over
it, the failure to comply with which would have a Material Adverse Effect on
HGI. Without limiting the foregoing, each of HGI and HGIL is in compliance
with all, and neither HGI nor HGIL has received written notice of any
violation of or default under any, laws, regulations, ordinances, rules,
orders, judgments, and decrees applicable to it or its operations, the failure
to comply with which would have a Material Adverse Effect on HGI.
(b) All governmental approvals necessary for the conduct
of the business of HGI and HGIL have been obtained and are in full force and
effect, and HGI and HGIL each hold all requisite approvals, licenses and
registrations, including securities-related approvals, licenses and
registrations, in each jurisdiction in which it conducts business so as to
require such qualification and in which the failure to qualify would have a
Material Adverse Effect on HGI.
(c) Each of HGI and HGIL has filed all material
registrations, reports, statements, notices, other filings, and amendments or
supplements to any such filings (the *Filings*) required to be filed with any
Federal, state, or foreign governmental or regulatory body, including, without
limitation, the U.S. Securities and Exchange Commission (the *SEC*) and the
applicable governmental body in each state or other jurisdiction in which HGI
or HGIL is registered or required to be registered as an investment adviser.
Each of the Filings, as of their respective filing dates, complied in all
material respects, where applicable, with the applicable laws, rules and
regulations in the jurisdictions where filed, including, without limitation,
the Investment Advisers Act of 1940, as amended (the *Advisers Act*), the
Investment Company Act of 1940, as amended (the *Investment Company Act*), and
the rules and regulations of the SEC under the Advisers Act and the Investment
Company Act. HGI has made available to VK/AC a true, complete, and correct
copy of HGI*s current Form ADV.
3.7. Litigation. There are no actions, suits, or proceedings
pending or, to the best of HGI*s knowledge, threatened against HGI or HGIL or
with respect to HGI*s or HGIL*s properties or assets, at law or in equity in
any court or before any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency, or instrumentality.
3.8. Governmental Consent. Except for Form ADV and related
filings that may be required under Federal and/or state or foreign securities
laws (which will be timely made), no permit, consent, approval or
authorization of, or filing with, any governmental regulatory authority or
agency is required to be obtained or made by HGI or HGIL in connection with
the execution, delivery and performance by HGI of this Stock Purchase
Agreement and the Related Agreements, or the consummation by HGI of the
transactions contemplated by this Stock Purchase Agreement and the Related
Agreements to be consummated by it on or before the Closing.
3.9. Conflict with Documents. Neither the execution, delivery
and performance by HGI of this Stock Purchase Agreement or the Related
Agreements, nor the consummation of the transactions contemplated hereby or
thereby to be consummated by HGI, either immediately or with the passage of
time or the giving of notice or both, will:
(a) Conflict with or cause a breach or default under any
of the terms, conditions or provisions of, result in a termination or
modification of, or cause any acceleration of any obligation of HGI or HGIL
under any contract, lease or other instrument to which HGI or HGIL is bound or
by which any of HGI*s or HGIL*s properties or assets may be affected, except
for any such conflict, breach, default, termination, modification or
acceleration that would not reasonably be expected to have a Material Adverse
Effect on HGI or materially impair the ability of HGI to perform its
obligations under this Stock Purchase Agreement and the Related
Agreements;
(b) Conflict with the provisions of the Charter, the
By-Laws or, in the case of HGIL, HGIL*s Certificate of Incorporation and
Memorandum and Articles of Association, or any statute, law, rule or
regulation or any order, judgment, decree, indenture, mortgage, lease or other
agreement or instrument to which HGI or HGIL is a party or any of their
properties or assets are subject, except for any such conflict that would not
reasonably be expected to have a Material Adverse Effect on HGI or materially
impair the ability of HGI to perform its obligations under this Stock Purchase
Agreement and the Related Agreements; or
(c) Result in the creation or imposition of any lien,
charge or encumbrance against HGI or HGIL or any of their properties or
assets, except for any such lien, charge or encumbrance that would not
reasonably be expected to have a Material Adverse Effect on HGI or materially
impair the ability of HGI to perform its obligations under this Stock Purchase
Agreement and the Related Agreements.
3.10. Taxes. Except as would not reasonably be expected to have
a Material Adverse Effect on HGI: (a) each of HGI and HGIL has filed all
applicable Federal, state, local and foreign tax returns required to be filed
to date in accordance with the provisions of law pertaining to such tax
returns, and has paid all taxes, interest, penalties and assessments required
to have been paid to date; and (b) neither HGI nor HGIL has been advised in
writing that any of its returns, Federal, state, local or foreign, have been
or are being audited as of the date of this Stock Purchase Agreement.
3.11. Insurance. HGI maintains insurance on all of its and
HGIL*s insurable properties. All such insurance policies are in full force
and effect and, to the best of HGI*s knowledge, neither HGI nor HGIL is in
default of any provision of any such policies. Neither HGI nor HGIL has
received written notice from any issuer of any such insurance policies of its
intention to cancel or refusal to renew any policy issued by it. The hazards
insured against by such policies, and the amounts of coverage, are, to the
best of HGI*s knowledge, substantially similar to the hazards insured against
and the amounts of coverage carried by corporations of established reputation
engaged in the same or similar business as is HGI or HGIL and similarly
situated.
3.12. Assets. Each of HGI and HGIL has good and marketable title
to all of its assets free and clear of all liens, charges, claims,
encumbrances and defects of any kind or character. All equipment, furniture
and fixtures, and other tangible personal property of HGI and HGIL are, except
for ordinary wear and tear, in good operating condition and repair and do not
require any repairs other than normal routine maintenance to maintain such
property in good operating condition and repair, except for any failure to be
in such good condition or repair that would not reasonably be expected to have
a Material Adverse Effect on HGI.
3.13. Financial Statements. HGI has made available to VK/AC
copies of HGI*s unaudited financial statements for the fiscal year ended
December 31, 1995 and HGIL*s unaudited financial statements for the fiscal
year ended December 31, 1995, and there are no regularly prepared balance
sheets of HGI or HGIL as of any date from December 31, 1995 to the date of
this Stock Purchase Agreement. Such unaudited financial statements present
fairly in all material respects the financial condition of HGI or HGIL, as the
case may be, at the dates indicated and the results of operations of HGI or
HGIL, as the case may be, for the periods indicated. To the best of HGI*s
knowledge, neither HGI nor HGIL has any liabilities that would have a Material
Adverse Effect on HGI, other than those (i) reflected or disclosed in such
unaudited financial statements; or (ii) disclosed in the HGI Schedule. HGI
agrees that it will cause HGI*s consolidated financial statements for the
fiscal year ended December 31, 1995 to be audited by its independent
accountants and will deliver to VK/AC copies of its audited consolidated
financial statements for such period, which financial statements will have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby (except as may be
noted in such financial statements), promptly upon the same being made
available to HGI by its independent accountants (but in no event later than 90
days from the date hereof).
3.14. Absence of Material Changes. Since December 31, 1995:
(a) There has not been any change in the financial
condition, business, prospects or affairs of HGI or HGIL, or any physical
damage or loss to any of their respective properties or assets or to the
premises occupied by either of them (whether or not such damage or loss is
covered by insurance), other than any such change, physical damage or loss
that has not had a Material Adverse Effect on HGI;
(b) Neither HGI nor HGIL has taken any action outside of
the ordinary and usual course of business, except as related to the
transactions contemplated by this Stock Purchase Agreement and the Related
Agreements;
(c) Neither HGI nor HGIL has borrowed any money or become
contingently liable for any obligation or liability of others;
(d) Each of HGI and HGIL has paid all of its debts and
obligations as they became due;
(e) Neither HGI nor HGIL has incurred any debt, liability
or obligation of any nature to any party except for obligations arising from
the purchase of goods or the rendition of services in the ordinary course of
business;
(f) HGI has not declared, set aside, made or paid any
dividend or other distribution in respect of its capital stock;
(g) Neither HGI nor HGIL has issued or sold any shares of
its capital stock of any class or any options, warrants or other similar
rights, agreements or commitments of any kind to purchase any such shares or
any securities convertible into or exchangeable for any such shares;
(h) Neither HGI nor HGIL has mortgaged, pledged or
otherwise subjected to any lien any of its material properties or assets,
tangible or intangible, except in the ordinary course of business:
(i) Neither HGI nor HGIL has knowingly waived any right
of substantial value;
(j) Each of HGI and HGIL has maintained its books,
accounts and records in the usual, customary and ordinary manner; and
(k) Each of HGI and HGIL has used its reasonable best
efforts to preserve its business organization intact, to keep available the
services of its employees and to preserve its relationships with customers,
suppliers and others with whom it deals.
3.15. No Brokers. All negotiations relating to this Stock
Purchase Agreement and the transactions contemplated by this Stock Purchase
Agreement have been conducted by HGI without the intervention of any person or
firm in such manner as to give rise to any valid claim against the parties to
this Stock Purchase Agreement for a brokerage commission, finder*s fees, or
similar compensation.
3.16 Absence of Disqualification. Neither HGI, HGIL, their
respective affiliates, nor any of their respective directors, officers,
employees or agents is a person described in Sections 9(a)(1)-(3) or
9(b)(1)-(6) of the Investment Company Act or Section 203(e)(1)-(7) of the
Advisers Act (a *Disqualified Person*) or is subject to any proceeding that
could result in HGI, HGIL, their respective affiliates, or any of their
respective directors, officers, employees or agents becoming a Disqualified
Person.
4. Representations and Warranties of VK/AC. VK/AC represents and
warrants to HGI as follows:
4.1. Authorization. VK/AC has all necessary corporate power to
enter into this Stock Purchase Agreement and the Related Agreements to which
it is a party and to carry out all of the transactions contemplated by this
Stock Purchase Agreement and the Related Agreements to be carried out by it.
The execution, delivery and performance by VK/AC of this Stock Purchase
Agreement and the Related Agreements to which VK/AC is a party and the
consummation of the transactions contemplated by this Stock Purchase Agreement
and the Related Agreements to be consummated by VK/AC on or before the Closing
have been duly authorized by all requisite corporate action on the part of
VK/AC. This Stock Purchase Agreement and the Related Agreements to which
VK/AC is a party have been duly executed and delivered by VK/AC and, assuming
the due authorization, execution, delivery and performance of this Stock
Purchase Agreement and the Related Agreements by HGI and Hansberger, as
applicable, constitute valid and legally binding obligations of VK/AC,
enforceable against it in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors* rights and to
general equity principles.
4.2. Approvals. Neither the consent of any third party nor the
consent, approval, order, or authorization of, or registration, declaration,
or filing with, any governmental authority is required to be obtained or made
by VK/AC in connection with the execution and delivery by VK/AC of this Stock
Purchase Agreement or the Related Agreements to which VK/AC is a party or the
consummation by VK/AC of the transactions contemplated by this Stock Purchase
Agreement and the Related Agreements to be consummated by it on or before the
Closing.
4.3. Conflict with Documents. Neither the execution, delivery
and performance by VK/AC of this Stock Purchase Agreement or the Related
Agreements to which VK/AC is a party, nor the consummation of the transactions
contemplated hereby or thereby to be consummated by VK/AC, either immediately
or with the passage of time or the giving of notice or both, will:
(a) Conflict with the provisions of VK/AC*s Third
Restated Certificate of Incorporation, By-Laws or any statute, law, rule or
regulation or any order, judgment, decree, indenture, mortgage, lease or other
agreement or instrument to which VK/AC is a party, or any of its properties or
assets are subject, except for any such conflict that would not reasonably be
expected to have a material adverse effect on VK/AC or materially impair the
ability of VK/AC to perform its obligations under this Stock Purchase
Agreement and the Related Agreements to which VK/AC is a party; or
(b) Result in the creation or imposition of any lien,
charge or encumbrance against VK/AC or any of VK/AC*s properties or assets,
except for any such lien, charge or encumbrance that would not reasonably be
expected to have a material adverse effect on VK/AC or materially impair the
ability of VK/AC to perform its obligations under this Stock Purchase
Agreement and the Related Agreements to which VK/AC is a party.
4.4. Investment Purpose. VK/AC is acquiring the VK/AC Shares
for investment for its own account and not with a view to, or for resale in
connection with, any distribution of the VK/AC Shares. VK/AC understands that
the VK/AC Shares have not been registered under the Securities Act of 1933, as
amended (the *Securities Act*) or under any state securities laws, and, as a
result having not been registered, are subject to substantial restrictions on
transfer. VK/AC acknowledges that the VK/AC Shares are subject to certain
transfer restrictions and options set forth in the Shareholders*
Agreement.
4.5. Access to Information. VK/AC has had full access to the
properties, personnel, books, and records of HGI and has been afforded ample
opportunity to discuss and raise questions with HGI and its shareholders,
officers, and directors, concerning the operations and business plans of
HGI.
4.6. No Brokers. All negotiations relating to this Stock
Purchase Agreement and the transactions contemplated by this Stock Purchase
Agreement have been conducted by VK/AC without the intervention of any person
or firm in such manner as to give rise to any valid claim against the parties
to this Stock Purchase Agreement for a brokerage commission, finder*s fees, or
similar compensation.
4.7. Absence of Disqualification. Neither VK/AC, its
affiliates, nor any of their respective directors, officers, employees or
agents is a Disqualified Person or, except as otherwise disclosed to HGI in
writing, is subject to any proceeding that could result in VK/AC, its
affiliates, or any of their respective directors, officers, employees or
agents becoming a Disqualified Person.
5. Use of Proceeds. HGI covenants and agrees that it will use the
proceeds from the sale of the VK/AC Shares to VK/AC solely for working capital
purposes in the ordinary course of business as currently contemplated or as
otherwise agreed to by HGI*s Board of Directors.
6. Restrictions on Transfer of Common Stock. Each certificate or
instrument representing the VK/AC Shares will bear the following legend, until
such VK/AC Shares have been registered under the Securities Act or sold
pursuant to Rule 144 or Regulation A thereunder, together with any legend
required under the Shareholders* Agreement, as applicable:
*THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THE SHARES MAY NOT BE OFFERED FOR
SALE, TRANSFERRED OR RESOLD IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SUCH ACT AND SUCH LAWS.*
7. Further Assurances. HGI and VK/AC agree to execute and deliver
all such other instruments and take all such other actions as either party may
reasonably request from time to time before or after the Closing Date and
without payment of further consideration, in order to effectuate the
transactions provided for in this Stock Purchase Agreement. The parties will
cooperate fully with each other and with their respective counsel and
accountants in connection with any steps required to be taken as part of their
respective obligations under this Stock Purchase Agreement.
8. Confidential Material. For so long as VK/AC holds or has a
beneficial interest in any of the VK/AC Shares and for a period of two (2)
years thereafter, VK/AC will treat, and will use its reasonable best efforts
to ensure that its directors, officers, employees, agents and representatives
(including financial advisors, accountants, valuation firms and other agents
or representatives) treat, all Confidential Material (as defined below) of HGI
confidentially and not disclose it except in accordance with this Section;
provided, that (a) any Confidential Material may be disclosed to VK/AC*s
agents and representatives who (i) need to have access to such information,
and (ii) are directed by VK/AC to treat such Confidential Material
confidentially; (b) any Confidential Material may be disclosed (i) to VK/AC
Permitted Transferees (as defined in the Shareholders* Agreement), including
their directors, officers, employees, and affiliates and their respective
agents and representatives, for use in connection with an investment in HGI or
the VK/AC Sale, provided that such persons are directed by VK/AC to treat such
Confidential Material confidentially; and (ii) in communications (including,
without limitation, a proxy statement) to VK/AC*s stockholders in connection
with a sale or other disposition (including by merger) of (A) at least a
majority of the stock of VK/AC now held by The Clayton & Dubilier Private
Equity Fund IV Limited Partnership or (B) shares of VK/AC*s common stock in a
public offering, but, in the case of either (A) or (B) above, only to the
extent that VK/AC, in its reasonable judgment, determines that the disclosure
of such Confidential Material is legally required; and (c) Confidential
Material may be disclosed to the extent required by law or by the order or
decree of any court or other governmental authority; provided, however, that
the party legally compelled to disclose the Confidential Material will provide
HGI with prompt notice of that fact so that HGI may attempt to obtain a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this Section 8. In the event that VK/AC ceases for any reason
to hold any VK/AC Shares, VK/AC will promptly deliver to HGI or destroy all
Confidential Material (and all copies thereof) in the possession of VK/AC or
any of its directors, officers, and employees, and will use its reasonable
best efforts to ensure that its agents and representatives deliver to HGI or
destroy all Confidential Material (and all copies thereof) in the possession
of such agents and representatives. Notwithstanding the return or destruction
of the Confidential Material, VK/AC will continue to be bound by its
confidentiality obligations hereunder. For purposes of this Section, the term
*Confidential Material* is defined as all information furnished in writing or,
if subsequently confirmed in writing as confidential, orally by HGI or any of
its directors, officers, employees, agents or representatives to VK/AC or any
of its directors, officers, employees, agents or representatives in connection
with this Stock Purchase Agreement and the transactions contemplated hereby
and all notes, analyses, compilations, studies, or other documents to the
extent that such documents contain or reflect any such information; provided,
however, that *Confidential Material* will not include information that (x) is
currently available in the public domain or becomes generally available to the
public other than as a result of a disclosure by VK/AC or any of its
directors, officers, employees, agents or representatives; (y) is currently in
the possession of or known by VK/AC and which VK/AC has obtained without any
obligation to maintain such information as confidential; or (z) was made
available to VK/AC on a non-confidential basis from a source other than HGI or
its directors, officers, employees, agents or representatives, provided, that
such source did not make such information available in violation of a
confidentiality agreement with HGI or any of its directors, officers,
employees, agents or
representatives.
9. Miscellaneous.
9.1. Waivers and Amendments. No waiver by either party of any
term or condition, or the breach of any term or condition, in any one or more
instances, will be deemed or construed as a further or continuing waiver of
any such term or condition or breach or a waiver of any other term or
condition. No provision of this Stock Purchase Agreement may be waived
without a written instrument signed by the waiving party. This Agreement may
not be changed, amended, discharged or terminated other than by an agreement
in writing signed by both of the parties to this Stock Purchase
Agreement.
9.2. Governing Law. This Stock Purchase Agreement and all
questions relating to its validity, interpretation, performance and
enforcement will be governed by and construed in accordance with the internal
laws of the State of Delaware.
9.3. Successors and Assigns. Except as otherwise expressly
provided in this Stock Purchase Agreement, the terms and conditions of this
Stock Purchase Agreement will be binding on and inure to the benefit of the
parties to this Stock Purchase Agreement and to their respective successors
and assigns. Nothing in this Stock Purchase Agreement, express or implied, is
intended to confer on any party other than the parties to this Stock Purchase
Agreement or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Stock Purchase
Agreement.
9.4. Entire Agreement. This Stock Purchase Agreement and the
other agreements and documents delivered pursuant to this Stock Purchase
Agreement constitute the full and entire understanding and agreement among the
parties with regard to the subject matter of this Stock Purchase Agreement and
of such other agreements and documents, and supersede all prior agreements,
understandings, inducements or conditions, express or implied, oral or
written, with respect to the subject matter of this Stock Purchase Agreement
and of such other agreements and documents.
9.5. Notices. Unless otherwise provided, all notices, requests,
demands and other communications required or permitted under this Stock
Purchase Agreement will be in writing and will be deemed to have been duly
made and received: (i) upon personal delivery or confirmed facsimile to the
party to be notified; (ii) three (3) business days after deposit with the
United States Post Office, by certified or registered mail or by first class
mail, postage prepaid, addressed as set forth below; or (iii) one (1) business
day after deposit with Federal Express or another reputable overnight courier
(for next business day delivery), shipping prepaid, addressed as set forth
below:
(a) If to HGI, then to:
Hansberger Global Investors, Inc.
515 East Las Olas Boulevard
Fort Lauderdale, FL 33301
Attn: Thomas L. Hansberger
Chairman and Chief Executive Officer
with a copy to:
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, DC 20036
Attn: Kathryn B. McGrath, Esquire
(b) If to VK/AC, then to:
VK/AC Holding, Inc.
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Attn: Ronald A. Nyberg, Esquire
with a copy to each of:
The Clayton & Dubilier Private Equity Fund IV
Limited Partnership
270 Greenwich Avenue
Greenwich, Connecticut 06830
Attn: Clayton & Dubilier Associates IV Limited
Partnership
Attn: Mr. Alberto Cribiore
and
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
Attn: Woodrow W. Campbell, Esquire
Either party may change the address to which communications are to be sent by
giving two (2) business days* advance notice of such change of address to the
other party in conformity with the provisions of this Section providing for
the giving of notice.
9.6. Payment of Expenses. HGI and VK/AC will bear their
respective expenses, costs and fees (including attorneys* and auditors* fees)
in connection with the transactions contemplated by this Stock Purchase
Agreement, regardless of whether the transactions contemplated by this Stock
Purchase Agreement are consummated.
9.7. Headings. The headings contained in this Stock Purchase
Agreement have been inserted for convenience of reference only, and neither
such headings nor the placement of any term of this Stock Purchase Agreement
under any particular heading will in any way restrict or modify any of the
terms or provisions of this Stock Purchase Agreement.
9.8. Severability. The provisions of this Stock Purchase
Agreement will be deemed severable, and if any part of any provision is held
to be illegal, void, voidable, invalid, nonbinding or unenforceable, in its
entirety or partially, or as to any party, for any reason, such provision may
be changed, consistent with the intent of the parties to this Stock Purchase
Agreement, to the extent reasonably necessary to make the provision, as so
changed, legal, valid, binding and enforceable. If any provision of this
Stock Purchase Agreement is held to be illegal, void, voidable, invalid,
nonbinding or unenforceable, in its entirety or partially, or as to any party,
for any reason, and if such provision cannot be changed consistent with the
intent of the parties to this Stock Purchase Agreement to make it fully legal,
valid, binding and enforceable, then such provision will be stricken from this
Stock Purchase Agreement, and the remaining provisions of this Stock Purchase
Agreement will not in any way be affected or impaired, but will remain in full
force and effect.
9.9. Survival. All of the provisions of this Stock Purchase
Agreement other than the provisions set forth in Sections 1 and 2 will survive
the consummation of the transactions provided for in this Stock Purchase
Agreement.
9.10. Execution; Counterparts. This Stock Purchase Agreement may
be executed in any number of counterparts, each of which will be deemed to be
an original as against any party whose signature appears on such counterpart,
and all of which will together constitute one and the same instrument. This
Stock Purchase Agreement will become binding when one or more counterparts of
this Stock Purchase Agreement, individually or taken together, bear the
signatures of all of the parties to this Stock Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed and delivered as of the day and year first
written above.
HANSBERGER GLOBAL INVESTORS, INC.
By: /s/ Thomas L. Hansberger
Thomas L. Hansberger
Chairman and Chief Executive Officer
VK/AC HOLDING, INC.
By: /s/ Ronald A. Nyberg
Ronald A. Nyberg, Esquire
Executive Vice President and General Counsel