Exhibit 10.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of September 23, 2005, is entered into
between WLR RECOVERY FUND III, L.P., a Delaware limited partnership (the
"Purchaser"), with an address of 600 Lexington Avenue, New York, New York 10022,
and ZAPATA CORPORATION, a Nevada corporation (the "Selling Stockholder"), with
an address of 100 Meridian Centre, Suite 350, Rochester, New York 14618.
WHEREAS, the Purchaser is prepared to purchase from the Selling Stockholder and
the Selling Stockholder is prepared to sell to the Purchaser the Selling
Stockholder's shares of capital stock of Safety Components International, Inc.,
a Delaware corporation ("Safety Components") whose shares trade on the OTC
Bulletin Board under the symbol "SAFY", on the terms and conditions herein;
NOW THEREFORE, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SECURITIES; CLOSING; ESCROW.
(a) Subject to the terms and conditions herein, the Selling Stockholder
shall sell to the Purchaser, and the Purchaser shall purchase from
the Selling Stockholder at the Closing (defined below), 4,162,394
shares (the "Purchased Shares") of the common stock, par value $0.01
per share ("Common Stock"), of Safety Components free and clear of
all security interests, liens or encumbrances other than those
imposed by the applicable securities laws. In consideration for the
Purchased Shares, at Closing, the Purchaser shall pay the Selling
Stockholder a purchase price in immediately available funds of U.S.
$12.30 per share, or U.S. $51,197,446 in the aggregate (the
"Purchase Price"). The sale, assignment and transfer of the
Purchased Shares will be made without recourse, representation or
warranty of any kind by the Selling Stockholder, express or implied,
except as expressly set forth herein.
(b) All dividends or distributions (whether in cash, property,
securities, rights or otherwise) declared or paid with respect to
the Purchased Shares after the date hereof and prior to Closing (the
"Distributions") shall be payable to the Purchaser at the Closing
concurrently with the transfer of the Purchased Shares together with
all accrued interest thereon while held in escrow. All interest
accrued on the Purchase Price while held in escrow (the "Accrued
Interest") as required by the terms hereof shall be paid to the
Selling Stockholder at the Closing concurrently with the payment of
the Purchase Price to the Selling Stockholder. At the Closing, the
Selling Stockholder shall make a payment to the Purchaser equal to
the interest accrued on the amount borrowed by the Purchaser solely
to fund the deposit of the Purchase Price for up to the first eight
days after the initial deposit thereof with the Escrow Agent (such
eight-day period, the "Maximum Borrowing Period") at an interest
rate not to exceed the One Month LIBOR rate plus one hundred basis
points based on a 365 day year (the "Borrowing Factor Payment"). One
Month LIBOR Rate means the rate per annum equal to the one-month
London interbank offered rate for United States dollars, as of the
date hereof, as reflected in the "Money Rates" section of The Wall
Street Journal. At the Closing, the Purchaser shall provide the
Selling Stockholder with a written statement of the amount of the
Borrowing Factor Payment and the supporting calculation therefor.
(c) If a stock split, stock dividend or reclassification occurs prior to
the Closing, then the number of shares which constitutes the
Purchased Shares and the Purchase Price shall be appropriately and
equitably adjusted so as to maintain the proportionate number of
Purchased Shares without changing the aggregate Purchase Price.
(d) Upon the execution hereof or within one business day thereafter (or
such later date as the parties may agree in writing), the Purchaser,
the Selling Stockholder and CitiBank, N.A. (the "Escrow Agent")
shall enter into an escrow agreement, substantially in the form
attached hereto as EXHIBIT A, with such changes thereto as may be
reasonably required by the Escrow Agent consistent with the terms
hereof as a condition to the execution thereof (the "Escrow
Agreement"). Upon
execution of the Escrow Agreement (or such later date or time as the
parties may agree in writing), (i) the Selling Stockholder shall
deliver to the Escrow Agent the stock certificate it holds in
definitive form which represents the Purchased Shares, together with
a stock power duly endorsed in blank, and (ii) the Purchaser shall
deliver to the Escrow Agent, by wire transfer to the account
designated by the Escrow Agent in writing to the Purchaser the
amount of the full Purchase Price. During the term of this
Agreement, the Selling Stockholder shall also deliver to the Escrow
Agent any Distributions it receives. Upon receipt thereof, the
Escrow Agent shall hold, invest and disburse the certificate
representing the Purchased Shares, any Distributions, the Purchase
Price and other Escrowed Property (as defined in the Escrow
Agreement) in accordance with the terms and provisions of the Escrow
Agreement. At all times prior to the Closing, the Purchaser shall
have no rights as a stockholder in Safety Components with respect to
the Purchased Shares by virtue of this Agreement or otherwise, and
all such rights, including the right to vote the Purchased Shares,
shall remain with the Selling Stockholder.
(e) Upon the conditions set forth in Sections 6(a)(ii), 6(a)(iii),
6(a)(iv), 6(b)(ii), 6(b)(iii), 6(b)(iv) and 6(b)(v) herein being
satisfied, either the Purchaser or the Selling Stockholder may
execute and deliver to the Escrow Agent the Closing Notice referred
to in Section 4(b) of the Escrow Agreement (with a copy to the other
party) authorizing the Closing deliveries provided for herein. If a
party to this Agreement receives a copy of a Closing Notice, it may
at any time within three (3) business days thereafter give a Closing
Notice Objection (as defined in the Escrow Agreement) to the Escrow
Agent (with a copy to the other party) if any of its conditions
precedent under Section 6 hereof to its obligation to consummate the
transactions contemplated hereby have not been satisfied as of such
time.
2. CLOSING. The transfer of the Purchased Shares, together with any
Distributions (including any earnings thereon while held in escrow) and
payment of the Purchase Price, the Accrued Interest and the Borrowing
Factor Payment (the "Closing") will occur no later than 10:00 a.m. New
York time on the fourth business day (or the next business day thereafter
if it is a legal holiday) after the conditions set forth in Section 6 have
been satisfied or waived by the party entitled to the benefit thereof. The
Closing shall take place at the offices of Woods Oviatt Gilman LLP,
Rochester, New York, or at such other time or location as the parties
shall mutually agree. At the Closing (i) the Selling Stockholder shall
instruct the Escrow Agent to deliver to the Purchaser the stock
certificate it holds in definitive form which represents the Purchased
Shares, together with a stock power duly endorsed in blank, and any
Distributions (including any earnings thereon while held in escrow) and
(ii) the Purchaser shall instruct the Escrow Agent to deliver to the
Selling Stockholder, by wire transfer to an account designated by the
Selling Stockholder in writing to the Purchaser and the Escrow Agent (not
less than two days prior to the Closing) the amount of the full Purchase
Price together with the Accrued Interest. The time and date of such
payment and delivery referred to in this Agreement as the "Closing Date."
3. REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDER. The Selling
Stockholder represents and warrants to the Purchaser as follows:
(a) the Selling Stockholder is a corporation validly existing and in
good standing under the laws of Nevada and has all the requisite
power and authority to execute and deliver this Agreement and the
Escrow Agreement (the "Transaction Agreements") and, subject to the
Vote, to carry out all the terms and provisions hereof and thereof
to be carried out by it;
(b) Safety Components is a corporation validly existing and in good
standing under the laws of Delaware;
(c) the execution and delivery of the Transaction Agreements by the
Selling Stockholder and the performance of the Selling Stockholder's
obligations hereunder and thereunder have been duly authorized by
all necessary corporate action;
(d) the Transaction Agreements have been duly executed and delivered by
the Selling Stockholder and constitute the valid and binding
obligations of the Selling Stockholder;
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(e) the Selling Stockholder owns of record and beneficially all of the
Purchased Shares free and clear of all security interests, liens and
encumbrances (except for any restrictions which may apply under
applicable securities laws), and there are no stockholders
agreements, voting agreements or proxies to which the Purchased
Shares are subject;
(f) there are no outstanding options, warrants, rights to acquire or
subscribe to, or calls or commitments of any character whatsoever to
which the Selling Stockholder is a party or by which it is bound,
requiring the issuance or sale of shares of any class of capital
stock or other equity securities of Safety Components or securities
or rights convertible into or exchangeable for such shares or other
equity securities of Safety Components;
(g) other than the Purchased Shares, the Selling Stockholder is not the
beneficiary of any options, warrants, rights to acquire or subscribe
to, or calls or commitments for, any shares of any class of capital
stock or other equity securities of Safety Components ("Safety
Components Securities");
(h) the Purchased Shares represent all of the Safety Components
Securities owned by the Selling Stockholder on the date hereof;
(i) the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, (i)
conflict with the certificate of incorporation or by-laws (or
comparable organizational documents) of either of the Selling
Stockholder or Safety Components, (ii) to the knowledge of the
Selling Stockholder, result in any breach, violation or default
(with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or creation or
acceleration of any obligation or right of a third party or loss of
a benefit under, or result in the creation of any security
interests, liens or encumbrances upon any of the properties or
assets of either the Selling Stockholder or Safety Components under,
any loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise,
license or other authorization applicable to either of the Selling
Stockholder or Safety Components or their respective properties or
assets or (iii) subject to the governmental filings and other
matters referred to in the following sentence, to the knowledge of
the Selling Stockholder, conflict with or violate any judgment,
order, decree, law, statute, code, ordinance, regulation, rule,
principle of common law or other legally enforceable obligation
imposed by any federal, state or local or foreign government, any
court, administrative, regulatory or other governmental agency,
commission or authority or any non-governmental United States or
foreign self-regulatory agency, commission or authority or any
arbitral tribunal (each, a "Governmental Entity") applicable to the
Selling Stockholder or Safety Components or their respective
properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, breaches, violations, defaults, rights,
losses, security interests, liens or encumbrances that, individually
or in the aggregate, would not reasonably be expected to have or
result in a material adverse effect on the Selling Stockholder or
Safety Components and that would not prevent or materially delay the
consummation of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, action by or in
respect of, or registration, declaration or filing with, any
Governmental Entity or any third party is required by the Selling
Stockholder or, to the Selling Stockholder's knowledge, Safety
Components in connection with the execution and delivery of this
Agreement by the Selling Stockholder or the consummation by the
Selling Stockholder of the transactions contemplated hereby, except
for: (i) the filing with the Commission (as defined herein) of (A)
an information statement pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act")and (B) such reports under the
Exchange Act, as may be required in connection with this Agreement
and the transactions contemplated hereby; (ii) the Vote (as defined
herein) and (iii) the filing of a premerger notification and report
form by the Selling Stockholder under the HSR Act (as defined
herein); and
(j) following the Closing, (i) the payments due to the Selling
Stockholder from Safety Components under the Tax Sharing and
Indemnity Agreement, dated as of March 19, 2004, by and between the
Selling Stockholder and Safety Components shall not exceed $450,000
and (ii) to the
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knowledge of the Selling Stockholder, Safety Components shall have
no obligation after the Closing Date to make any other payments to
the Selling Stockholder pursuant to any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or other
authorization.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser represents,
warrants and acknowledges to the Selling Stockholder as follows:
(a) the Purchaser is a limited partnership validly existing and in good
standing under the laws of the State of Delaware and has all the
requisite power and authority to execute and deliver the Transaction
Agreements and to carry out all the terms and provisions thereof to
be carried out by it;
(b) the execution, delivery and performance of the Transaction
Agreements by the Purchaser has been duly authorized by all
necessary action;
(c) the Transaction Agreements have been duly executed and delivered by
the Purchaser and constitute the valid and binding obligations of
the Purchaser enforceable in accordance with its terms;
(d) the Purchaser has been advised that the Purchased Shares have not
been registered under the Securities Act of 1933, as amended (the
"Act"), or under applicable state blue sky laws and that the
certificate evidencing the Purchased Shares will be legended
accordingly;
(e) the Purchaser is acquiring the Purchased Shares for its own account;
(f) the Purchaser is an experienced and sophisticated investor, is able
to fend for itself in the transactions contemplated by this
Agreement, and has such knowledge and experience in financial and
business matters that it is capable of evaluating the risks and
merits of acquiring the Shares;
(g) the Purchaser is aware that the Purchased Shares may not be sold
unless such Purchased Shares are registered pursuant to the Act and
state securities laws or qualify for an exemption from such
registration; and
(h) the execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, (i)
conflict with the partnership agreement (or comparable
organizational documents) of the Purchaser, (ii) result in any
breach, violation or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or creation or acceleration of any obligation or right
of a third party or loss of a benefit under, or result in the
creation of any security interests, liens or encumbrances upon any
of the properties or assets of the Purchaser under, any loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license or
other authorization by which the Purchaser is bound or (iii)
conflict with or violate any judgment, order, decree, law, statute,
code, ordinance, regulation, rule, principle of common law or other
legally enforceable obligation imposed by any Governmental Entity on
the Purchaser or its properties or assets, other than, in the case
of clauses (ii) and (iii), any such conflicts, breaches, violations,
defaults, rights, losses, security interests, liens or encumbrances
that, individually or in the aggregate, would not reasonably be
expected to prevent or materially delay consummation of the
transactions contemplated by this Agreement; and
(i) notwithstanding anything herein or elsewhere to the contrary, except
as expressly set forth herein, the Selling Stockholder makes no
representation or warranty of any kind in connection with, and shall
have no responsibility with respect to, the financial statements,
financial condition, financial performance, future prospects or
plans or any other aspect of Safety Components (collectively,
"Safety Components Information") or the Purchased Shares; the
Purchaser has independently, and without reliance on the Selling
Stockholder, reviewed such documents and
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information as it has deemed appropriate (including the publicly
available registration statements, reports and documents relating to
Safety Components filed with the Commission (as defined herein) or
non-public documents which have been made available to it by Safety
Components), and made its own financial analysis and decision to
enter into this Agreement and to purchase the Purchased Shares in
accordance with the terms hereof.
5. COVENANTS OF THE PARTIES.
(a) Efforts and Actions to Cause Closing to Occur; HSR Act.
(i) Prior to the Closing, upon the terms and subject to the
conditions of this Agreement, the parties hereto shall use
their best efforts to take, or cause to be taken, all actions,
and to do, or cause to be done all things necessary, proper or
advisable (subject to any applicable laws) to consummate the
Closing as promptly as practicable including, but not limited
to the preparation and filing of all forms, registrations and
notices required to be filed to consummate the Closing and the
taking of such actions as are necessary to obtain any
requisite approvals, authorizations, consents, orders,
licenses, permits, qualifications, exemptions or waivers by
any third party or any Governmental Entity. In addition, no
party hereto shall take any action after the date hereof that
could reasonably be expected to materially delay the obtaining
of, or result in not obtaining, any permission, approval or
consent from any such Governmental Entity or other person
required to be obtained prior to Closing.
(ii) Within 10 business days following the execution of this
Agreement, the Purchaser and the Selling Stockholder shall
both file with the Federal Trade Commission and the Department
of Justice the notification and report form required of them
under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended ("HSR Act"), for the consummation of the
transactions contemplated by this Agreement. The Purchaser and
the Selling Stockholder shall both promptly submit any
additional materials that may be reasonably requested by
governmental officials in connection therewith pursuant to the
HSR Act and exercise best efforts to obtain early termination
of the waiting period, and otherwise obtain prompt clearance,
under the HSR Act. Each of the Purchaser and the Selling
Stockholder shall give the other reasonably prompt notice of
any communication with, and any proposed understanding,
undertaking or agreement with, any governmental authority
regarding any such filings or any such transaction. Neither
the Purchaser nor the Selling Stockholder, shall independently
participate in any meeting, or engage in any substantive
conversation, with any governmental authority in respect of
any such filings, investigation or other inquiry without
giving the other prior notice (if practicable) of the meeting
and discussing with the Purchaser or the Selling Stockholder.
The Purchaser and the Selling Stockholder shall promptly
notify the Escrow Agent (with a copy to the other party)
immediately upon the expiration or earlier termination of the
waiting period under the HSR Act. The Purchaser and the
Selling Stockholder shall share equally the filing fees by the
parties pursuant to the HSR Act.
(iii) Notwithstanding the foregoing or any other covenant herein
contained, nothing in this Agreement shall be deemed to
require the Purchaser to divest or hold separate any assets or
agree to limit its normal and regular operations after the
Closing. To the knowledge of the Purchaser, there is not any
aspect of its businesses that may require any such action on
its part that would reasonably be expected to be imposed by
any Governmental Authority as a condition to the expiration or
termination of the waiting period under or clearance under the
HSR Act.
(b) Notification of Certain Matters. The parties hereto shall give
notice to the other party promptly after becoming aware of (i) the
occurrence or non-occurrence of any event whose occurrence or
non-occurrence would be likely to cause either (A) any
representation or warranty contained in this Agreement to be untrue
or inaccurate in any material respect at any time from the
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date hereof to the Closing Date or (B) any condition set forth in
Section 6 to be unsatisfied in any material respect at any time from
the date hereof to the Closing Date and (ii) any material failure of
such party or any officer, director, employee or agent thereof, to
comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that
(x) the delivery of any notice pursuant to this Section shall not
limit or otherwise affect the remedies available hereunder to the
party receiving such notice and (y) the failure to give such notice
shall not be required from and after the time the party to whom such
notice is to be given has actual knowledge of the information
required to be included in such notice. If a party hereto shall give
notice to the other party hereto that a representation or warranty
of such other party contained in this Agreement is untrue or
inaccurate in any material respect, then such other party shall have
15 days following its receipt of such notice to investigate and, if
applicable, cure such untrue or inaccurate representation or
warranty.
(c) Stockholder Approval.
(i) Within 10 days following the execution and delivery of this
Agreement, the Selling Stockholder shall prepare and file with
the Securities and Exchange Commission (the "Commission") an
information statement (together with any amendment or
supplement thereto, the "Information Statement") to be used in
connection with the consent of the stockholders of the Selling
Stockholder, and shall promptly use its commercially
reasonable best efforts to respond to the comments of the
Commission, if any, in connection therewith and to furnish all
information required in the Information Statement. The Selling
Stockholder shall cause the definitive Information Statement
to be mailed promptly to the stockholders of the Selling
Stockholder, and, if necessary under the Exchange Act, after
the definitive Information Statement shall have been so
mailed, to promptly circulate amended, supplemental or
supplemented materials thereto.
(ii) The Selling Stockholder shall, in accordance with applicable
law, seek the written consent of the stockholders of the
Selling Stockholder as promptly as practicable following the
mailing of the definitive Information Statement, for the
purpose of voting upon or consenting to (as applicable) the
sale of the Purchased Shares on the terms and conditions
herein. The Selling Stockholder shall take all commercially
reasonable actions to secure the vote or consent of
stockholders required by applicable law and by the Certificate
of Incorporation or the By-laws of the Selling Stockholder to
approve the sale of the Purchased Shares (the "Vote"). The
Selling Stockholder shall notify in writing the Purchaser upon
the stockholders of the Selling Stockholder approving the sale
of the Purchased Shares pursuant to the terms hereof.
(d) Election of Purchaser's Representatives to Safety Components Board
of Directors. Promptly after the execution and delivery of this
Agreement, the Purchaser shall provide Safety Components with the
names of the representatives to be elected to the Safety Components
Board of Directors and such information as Safety Components may
require in order to have such representatives elected to its Board
of Directors and to comply prior to Closing with Section 14(f) of
the Exchange Act. Immediately following the Closing, until the
Purchased Shares are issued in the name of the Purchaser, the
Selling Stockholder shall vote the Purchased Shares in the manner
required to cause the representatives so designated by the Purchaser
to constitute the majority of the directors on the Board of
Directors of Safety Components (exclusive of the Selling
Stockholders' representatives on the Board of Directors of Safety
Components). Promptly following the issuance of a new stock
certificate issued in the name of the Purchaser representing the
Purchased Shares transferred pursuant to this Agreement to the
Purchaser, any remaining representatives of the Selling Stockholder
who shall be on the Board of Directors of Safety Components shall
resign from such position.
(e) Completion of Actions. On or before December 31, 2005, each party
hereto shall have performed all covenants required to be performed
by it under this Agreement or the other Transaction Agreements other
than (i) those covenants hereunder or thereunder that are required
to
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be performed or that are only capable of being performed by it on or
following the Closing Date in accordance with the terms hereof or thereof
and (ii) any action required to be performed by it under Section
5.2(a)(ii) following the initial filing of its notification and report
form within the 10-business day period specified thereunder.
Notwithstanding the immediately preceding sentence, with respect to the
Selling Stockholder's obligation under Section 5(c), (A) if the Selling
Stockholder shall not have procured the Vote pursuant to such Section 5(c)
prior to December 31, 2005 and (B) the Selling Stockholder's failure to
procure the Vote by such date is attributable to the Selling Stockholder's
inability to resolve, in good faith, to the Commission's satisfaction any
comments pertaining to its review of the Information Statement within 30
days following notice (whether orally or in writing) by the Commission to
the Selling Stockholder of its intention to provide comments on the
Information Statement, then, for each additional day beyond the
aforementioned 30-day period that is required to resolve any such
comments, the Selling Stockholder shall be granted hereunder one
additional day following the date of December 31, 2005 to mail, if
necessary, the Definitive Information Statement and to procure the Vote.
For purposes of the immediately foregoing sentence, the Selling
Stockholder will be obligated hereunder to diligently inquire with the
Commission to determine whether the Commission will furnish comments with
respect to the Information Statement.
6. CLOSING CONDITIONS.
(a) Conditions to Selling Stockholder's Obligations. The obligation of
the Selling Stockholder to consummate the transactions contemplated
hereunder is subject to the satisfaction of the following conditions
or waiver thereof by the Selling Stockholder:
(i) Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser shall be true
and accurate as of the Closing in all material respects.
(ii) Approval of Selling Stockholder's Stockholders. The sale of
the Purchased Shares by the Selling Stockholder to the
Purchaser pursuant to the terms of this Agreement shall have
been approved by holders of a majority of the outstanding
shares of common stock of the Selling Stockholder entitled to
vote thereon in accordance with applicable law, and the
Selling Stockholder's Certificate of Incorporation and
By-laws.
(iii) No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order shall have been issued by
any Governmental Entity, and no other legal restraint or
prohibition preventing the consummation of the sale of
Purchased Shares shall be in effect.
(iv) HSR Act. All waiting periods under the HSR Act with respect to
the filings made under Section 5(a)(ii) hereof shall have
expired or terminated.
(b) Conditions to Purchaser's Obligations. The obligation of the
Purchaser to consummate the transactions contemplated hereunder is
subject to the satisfaction of the following conditions or waiver
thereof by the Purchaser:
(i) Accuracy of Representations and Warranties. The
representations and warranties of the Selling Stockholder
shall be true and accurate as of the Closing in all material
respects.
(ii) No Injunction. No temporary restraining order, preliminary or
permanent injunction or other order shall have been issued by
any Governmental Entity, and no other legal restraint or
prohibition preventing the consummation of the sale of
Purchased Shares shall be in effect.
(iii) Stockholder Vote. The Selling Stockholder shall have procured
the Vote and delivered written notice thereof to the Purchaser
prior to the Closing.
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(iv) Opinion of Selling Stockholder's Counsel. The Selling
Stockholder shall have delivered to the Purchaser a legal
opinion of counsel, addressed to the Purchaser, dated the
Closing Date and in a form and in substance customary for
transactions of this type, to the effect that , subject to the
assumptions and qualifications and limitations included
therein, the execution, delivery and performance by the
Selling Stockholder of the Transaction Agreements and the
consummation of the transactions contemplated thereby, have
been duly authorized by all necessary corporate and
stockholder action and no other action on the part of the
Selling Stockholder is necessary to authorize the execution
and delivery by the Selling Stockholder of the Transaction
Agreements or the consummation of the transactions
contemplated hereby or thereby.
(v) HSR Act. All waiting periods under the HSR Act with respect to
the filings made under Section 5(a)(ii) hereof shall have
expired or terminated.
7. TERMINATION.
(a) This Agreement may be terminated by either party hereto upon written
notice to the other party if (i) the covenant set forth in Section
5(e) shall not have been fulfilled by the date specified therein or
(ii) the waiting periods under the HSR Act with respect to the
filings made under Section 5(a)(ii) hereof shall not have expired or
terminated on or before June 30, 2006 (the "Outside Date"), or such
later date as may have been agreed upon in writing by the parties
hereto; provided, however, that no such right of termination shall
be exercisable by a party if the nonfulfillment of such Section 5(e)
or the non-expiration or non-termination of the waiting periods
under the HSR Act (as applicable) is due to such party's
noncompliance with or breach of the covenants to be performed by it
under this Agreement. Upon written notice of termination, either
party may give the Escrow Agent the Termination Notice provided for
in the Escrow Agreement. If a party receives a Termination Notice,
it may at any time within 10 days thereafter give the Escrow Agent a
Termination Objection Notice stating that it disputes the right of
the party giving the Termination Notice to terminate this Agreement
or if it has a claim against the terminating party for material
breach of this Agreement.
(b) If (i) this Agreement is terminated by the Purchaser in accordance
with its terms solely by reason of (A) the nonfulfillment of Section
5(e) or (B) the Vote not having been obtained by the Outside Date,
(ii) in the case of the foregoing clause (B), all other conditions
to the Closing have been fulfilled or waived by the party intended
to benefit therefrom, and (iii) the nonfulfillment of such Section
5(e) or the failure of such Vote condition (as applicable) is not
the result of a breach by the Purchaser of this Agreement, then, the
Selling Stockholder shall promptly following termination of this
Agreement pay to the Purchaser a break-up fee in the amount of Two
Million Dollars (US$2,000,000) (the "Break-Up Fee") and reimburse
the Purchaser for (i) the actual documented out-of-pocket expenses
incurred by the Purchaser in negotiating and executing the
Transactions Agreements and performing or consummating the
transactions contemplated hereby up to a maximum of Five Hundred
Thousand Dollars ($500,000) (the "Expense Payment") and (ii) the
Borrowing Payment Factor, together with interest thereon computed at
the One Month LIBOR Rate for the period commencing on the date
immediately following the Maximum Borrowing Period and ending on the
termination date of this Agreement.
(c) Upon termination of this Agreement, neither party hereto shall have
any liability or obligation under this Agreement except to the
extent a party has breached its representations, warranties,
covenants or agreements hereunder (and not cured such breach prior
to termination of this Agreement) or to the extent that the Break-Up
Fee, the Expense Payment or the amount required to be paid under
clause (ii) of Section 7(b) are due by the terms hereof.
8. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES, ETC. All provisions
hereof shall inure to the benefit of, and be binding upon, the parties
hereto and their successors and assigns. No other parties shall have any
rights under or be entitled to enforce this Agreement.
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9. EXPENSES. Except as otherwise provided herein, the parties hereto shall
bear their own expenses incurred in connection with this Agreement and the
sale and purchase of Purchased Shares, including, without limitation, all
fees of their respective legal counsel, investment advisors and
accountants.
10. NOTICES. All notices, requests, claims, demands and other communications
hereunder shall be communicated in writing, mailed by first class mail
delivered by hand, at the addresses (or to such other address for a party
as such party may specify by written notice given pursuant hereto) first
set forth in the beginning of this Agreement, in the case of the Selling
Stockholder, to the attention of the President & Chief Executive Officer,
with a copy to the Vice President-Finance and in the case of the
Purchaser, to the attention of David H. Storper.
11. AMENDMENTS, ETC. No amendment, modification, termination, or waiver of any
provision of this Agreement and no consent to any departure by a party
from any provision of this Agreement, shall be effective unless it shall
be in writing and signed and delivered by the other party, and then it
shall be effective only in the specific instance and for the specific
purpose for which it is given.
12. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may be executed by facsimile signature
transmitted to any other party by electronic transmission. The parties
shall be bound by a facsimile signature once transmitted to another party.
The latter transmission of an originally executed copy of any such
document shall not invalidate any signature previously given by electronic
transmission.
13. ENTIRE AGREEMENT. This Agreement, together with the other Transaction
Agreements, contains the entire agreement between the Purchaser and the
Selling Stockholder with respect to the subject matter hereof. There are
no other agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter hereof.
14. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of New York without reference to
conflicts of law principles.
SIGNATURES ON FOLLOWING PAGE
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SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement as of the date first above written.
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ David H. Storper
--------------------
David H. Storper
Principal Member
ZAPATA CORPORATION
By: /s/ Leonard DiSalvo
--------------------
Name: Leonard DiSalvo
Title: CFO
Witness: /s/ Gregory W. Gribben
----------------------
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AMENDMENT NO. 1 AND JOINDER
This AMENDMENT NO. 1 AND JOINDER, dated as of September 26, 2005 (this
"Amendment"), by and among WLR RECOVERY FUND II, L.P., a Delaware limited
partnership (the "Fund II"), WLR RECOVERY FUND III, L.P., a Delaware limited
partnership (the "Fund III"), and ZAPATA CORPORATION, a Delaware corporation
(the "Selling Stockholder"), to the Stock Purchase Agreement, dated as of
September 23, 2005 (the "Stock Purchase Agreement"), between Fund III and the
Selling Stockholder.
WITNESSETH:
WHEREAS, Fund III and the Selling Stockholder have executed and delivered
the Stock Purchase Agreement;
WHEREAS, Fund III has advised the Selling Stockholder that it is required
under applicable agreements to permit Fund II to participate in the purchase of
the Purchased Shares;
WHEREAS, Section 11 of the Stock Purchase Agreement provides that no
amendment, modification, termination or waiver of any provision of the Stock
Purchase Agreement shall be effective unless it shall be in writing and signed
and delivered by the other party;
WHEREAS, Fund III and the Selling Stockholder have agreed to amend the
Stock Purchase Agreement to provide that Fund II shall become a party thereto;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. DEFINITIONS. CAPITALIZED TERMS USED HEREIN WITHOUT DEFINITION ARE USED AS
DEFINED IN THE STOCK PURCHASE AGREEMENT, UNLESS OTHERWISE INDICATED HEREIN.
2. Amendments to Stock Purchase Agreement.
(a) THE STOCK PURCHASE AGREEMENT IS HEREBY AMENDED TO PROVIDE THAT
REFERENCES THEREIN TO THE TERM "PURCHASER" SHALL BE REFERENCES TO BOTH FUND II
AND FUND III.
(b) SECTION 1(a) IS HEREBY AMENDED TO READ AS FOLLOWS:
"Subject to the terms and conditions herein, the Selling Stockholder shall
sell to Fund II and Fund III, and Fund II and Fund III shall each purchase from
the Selling Stockholder at the Closing (defined below), 241,419 and 3,920,975
shares (the "Purchased Shares"), respectively, of the common stock, par value
$0.01 per share ("Common Stock"), of Safety Components, free and clear of all
security interests, liens or encumbrances other than those imposed by the
applicable securities laws. In consideration for the Purchased Shares, at
Closing, the Purchaser shall pay the Selling Stockholder a purchase price in
immediately available funds of U.S. $12.30 per share, or U.S. $51,197,446 in the
aggregate (the "Purchase Price"). The sale, assignment and transfer of the
Purchased Shares will be made without recourse, representation or warranty of
any kind by the Selling Stockholder, express or implied, except as expressly set
forth herein."
3. Joinder. In consideration of this Amendment, Fund II hereby agrees to become
a party to the Stock Purchase Agreement, as amended by this Amendment, and shall
severally be fully bound by and subject to all of the covenants, terms and
provisions of each such agreement as a "Purchaser," and as though an original
party thereto. The undersigned, as of the date hereof, hereby severally makes
the same representations and warranties made by Fund III in the Stock Purchase
Agreement.
4. Miscellaneous. Except as expressly amended and modified hereby, the Stock
Purchase Agreement is hereby ratified and reaffirmed in all respects and all the
terms and provisions thereof shall be and remain in full force and effect. The
section and other headings in this Amendment are inserted solely as a matter of
convenience and for reference, are not a part of this Amendment, and shall not
be deemed to affect the meaning or interpretation of this Amendment. This
Amendment may be signed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. This Amendment may be executed by facsimile signature transmitted to
any other party by electronic transmission. The parties shall be bound by a
facsimile signature once transmitted to another party. The latter transmission
of an originally executed copy of any such document shall not invalidate any
signature previously given by electronic transmission. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New York
without reference to conflict of laws principles.
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IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Amendment as of the date first above written.
WLR RECOVERY FUND II, L.P.
By: WLR Recovery Associates, II
LLC, as its General Partner
By: /s/ David H. Storper
-----------------------
David H. Storper
Principal Member
WLR RECOVERY FUND III, L.P.
By: WLR Recovery Associates, III
LLC, as its General Partner
By: /s/ David H. Storper
--------------------
David H. Storper
Principal Member
ZAPATA CORPORATION
By: /s/ Leonard DiSalvo
--------------------
Name: Leonard DiSalvo
Title: CFO
Witness /s/ Scott Mulcahy
-----------------
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