EXHIBIT 4.04
STOCK PURCHASE AGREEMENT
This Agreement is entered into as of August 1, 1989 by and between
Federated Investors, a Delaware business trust (the "Company"), and Westinghouse
Credit Corporation, a Delaware corporation (Westinghouse Credit Corporation and
its successors and assigns are referred to as "WCC").
1. Authorization and Sale of Securities. Company has authorized and
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shall issue and sell to WCC 1,200,000 shares of Class B Common Shares (the
"Class B Stock").
The certificates representing the Class B Stock shall be dated as of
the date hereof. The terms of the Class B Stock are as set forth on Exhibit 1
hereto. (Capitalized terms defined (expressly or by incorporation by reference
to other documents) in the Financing Agreement shall have the same meanings when
used herein unless otherwise defined herein or unless the context otherwise
requires.)
2. Sale and Purchase Price of Securities. Subject to the terms and
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conditions hereof, Company agrees to sell to WCC, and WCC agrees to purchase
from Company, 1,200,000 shares of Class B Stock for an aggregate purchase price
of $3,000,000.
3. Delivery of Certificates. On the date hereof and subject to that
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certain Pledge Agreement of even date herewith between WCC and the Senior
Lenders, Company will deliver to WCC certificates which will be registered in
WCC's name and will represent 1,200,000 shares of Class B Stock, against
delivery by WCC to Company of $3,000,000 by wire transfer of federal funds in
payment of the total purchase price.
4. Conditions Precedent to Closing.
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WCC's obligation to purchase from Company and Company's
obligation to issue the Class B Stock to WCC is subject to satisfaction of each
of the following conditions:
4.1 Delivery of Financing Agreement and Term Notes. The
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transactions contemplated by the Financing Agreement shall have been
consummated.
4.2 Other Documents. WCC shall have received from Company such
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other documents as WCC may reasonably request either to vest in WCC the rights
intended to be granted by this Agreement or to confirm compliance by Company
with this Agreement.
5. Restriction on Transfer of the Class B Stock.
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5.1 Legend. The certificates representing the Class B Stock
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issued to WCC shall be endorsed with the following legends:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, (the
"Securities Act") or applicable state securities laws (the "State
Laws") and may not be sold, transferred, assigned or otherwise
distributed for value unless there is an effective registration
statement under the Securities Act and the State Laws covering
such securities or the Company receives from the holder of these
securities an opinion of counsel experienced in federal
securities law matters, which opinion shall be reasonably
acceptable to the Company, stating that such sale, transfer,
assignment or distribution is exempt from the registration and
prospectus delivery requirements of the Securities Act and the
State Laws. The securities evidenced by this certificate are
subject to provisions governing exchange and transfer
restrictions contained in the Stock Purchase dated August 1,
1989, between the Company and Westinghouse Credit Corporation."
"No transfer of this instrument or such securities shall be
made within twelve (12) months after the date of purchase except
as permitted by the Pennsylvania Securities Act of 1972."
5.2 Pennsylvania Securities Act Notice. IN ACCORDANCE WITH
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SECTION 207(m) OF THE PENNSYLVANIA SECURITIES ACT OF 1972, AS AMENDED AND
PRESENTLY IN EFFECT, WCC MAY ELECT, WITHIN (2) BUSINESS DAYS AFTER THE DATE OF
RECEIPT BY THE COMPANY OF THIS AGREEMENT EXECUTED BY AND BINDING ON WCC, TO
WITHDRAW FROM THIS AGREEMENT AND RECEIVE A FULL REFUND OF ANY PURCHASE PRICE
PAID HEREUNDER. ANY WITHDRAWAL HEREUNDER SHALL BE WITHOUT ANY FURTHER LIABILITY
TO THE COMPANY OR ANY OTHER PERSON. TO ACCOMPLISH SUCH WITHDRAWAL HEREUNDER, WCC
NEED ONLY SEND TO THE COMPANY A LETTER OR TELEGRAM TO THE COMPANY INDICATING ITS
INTENTION TO WITHDRAW; PROVIDED; HOWEVER, THAT SUCH LETTER OR TELEGRAM SHALL BE
SENT OR POSTMARKED PRIOR TO THE END OF SUCH SECOND BUSINESS DAY. IT IS PRUDENT
TO SEND SUCH LETTER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ENSURE THAT
IT IS RECEIVED AND ALSO TO EVIDENCE THE TIME WHEN IT WAS MAILED. IN THE CASE OF
AN ORAL REQUEST TO WITHDRAW, WCC SHALL ASK FOR WRITTEN CONFIRMATION THAT SUCH
REQUEST HAS BEEN RECEIVED.
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5.3 Removal of Legend. The first sentence of the legend endorsed
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on the certificates representing the Class B Stock pursuant to Section 5.1
hereof shall be removed, and Company shall issue a certificate or certificates
without such legend to WCC, if the Class B Stock is being disposed of pursuant
to a registration under the Securities Act and pertinent State Laws or if such
holder provides Company with an opinion of counsel for such holder (concurred in
by counsel for Company) to the effect that a sale, transfer, assignment or
distribution of such Class B Stock may be made without registration.
5.4 Register of Securities. The recording of ownership and
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transfers of the Class B Stock shall be performed in conformity with the
provisions of the Company's Restated Declaration of Trust dated as of July 28,
1989 (the "Declaration of Trust").
5.5 Stop Transfer Order. A stop transfer order shall be placed
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on Company's stock records or with Company's transfer agent preventing transfer
of any of the Class B Stock or shares issued in replacement thereof pending
compliance with the conditions set forth in any such legend.
6. Representations and Warranties by Company. Company represents and
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warrants to WCC that:
6.1 Incorporation by Reference. The representations and
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warranties of Company set forth in the Financing Agreement are incorporated by
reference as if fully set forth in this Agreement and shall survive the
execution and delivery of this Agreement in the same manner as the other
representations and warranties of Company contained in this Agreement
notwithstanding payment in full of the Term Loans.
6.2 Class B Stock. The Class B Stock, when issued and purchased
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pursuant to the terms of this Agreement, will be duly and validly authorized,
issued and outstanding, fully paid, nonassessable and free and clear of all
pledges, liens, encumbrances and restrictions, except as set forth in Section 5
hereof and except for the Pledge Agreement, the other Senior Loan Documents and
the Shareholder Rights Agreement.
6.3 Securities Laws. Based in part upon WCC's representations
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and warranties contained in Section 7 of this Agreement, no consent,
authorization, approval, permit or order of or declaration to or filing with any
governmental or regulatory authority is required under current laws and
regulations in connection with the execution and delivery of this Agreement or
the offer, issuance, sale or delivery of the Class B Stock. Except for offers
made in compliance with applicable securities laws, Company has not, directly or
through an agent, offered the Class B Stock or any similar securities for sale
to, or solicited any offers to acquire such securities from, Persons other than
WCC. Under the circumstances contemplated hereby and based in
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part on WCC's representations and warranties contained in Section 7 of this
Agreement, the offer, issuance, sale and delivery of the Class B Stock, under
current laws and regulations, will not require compliance with the prospectus
delivery or registration requirements of the Securities Act.
6.4 Beneficial Interests. The authorized shares of beneficial
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interest in Company consist of 1,000 Series A Cumulative Convertible Preferred
Shares, all of which are issued and outstanding, 125,000 Series B Cumulative
Preferred Shares and 75,000 Series C Preferred Shares, none of which are issued
and outstanding, 99,000 Class A Common Shares of which 1,000 shares are issued
and outstanding and 49,700,000 Class B Common Shares of which 13,999,000 shares
are issued and outstanding. All of the issued and outstanding shares of Company
are duly authorized, validly issued and outstanding, and fully paid and
nonassessable. As of the date hereof, there are no options, agreements, warrants
or similar rights to purchase any shares of beneficial interest of Company
except as provided on Schedule 6 to the Financing Agreement. When issued on the
Closing Date, the Class B Stock will constitute 6.2% of the issued and
outstanding Class B Stock of Company on a fully diluted basis determined as set
forth in Paragraph 9 of this Agreement. Neither the offer nor the issuance or
sale of the Class B Stock to WCC hereunder constitutes an event, under the
provisions of any securities issued or issuable by Company or by agreements with
respect to the issuance of securities by Company, which will either increase the
number of shares issuable pursuant to such provisions or decrease the
consideration per share to be received by the Company pursuant to such
provisions.
6.5 Corporate Acts and Proceedings. This Agreement has been duly
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authorized by all necessary trust action and has been duly executed and
delivered by authorized officers of Company, and is the valid and binding
agreement of Company, enforceable in accordance with its terms. All trust action
necessary to the authorization, creation, issuance and delivery of the Class B
Stock has been taken on the part of Company.
6.6 Disclosure. No representation or warranty in this Agreement
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or in any writing furnished or to be furnished pursuant hereto or in connection
herewith contains or will contain any untrue statement of a material fact
required to make the statements herein or therein contained not misleading or
omits or will omit to state any material fact required to be stated herein or
therein or necessary to make the statements herein or therein not misleading.
7. Representations and Warranties of WCC. WCC represents and
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warrants that:
7.1 Intent. The Class B Stock being acquired by WCC hereunder is
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being purchased for WCC's own account and for investment purposes, and not with
the view to, or for resale in
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connection with, any distribution or public offering thereof within the meaning
of the Securities Act.
7.2 No Registration of Class B Stock. WCC understands that (a)
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the shares of Class B Stock have not been registered under the Securities Act or
under the State Laws by reason of their issuance or contemplated issuance in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act pursuant to Sections 4(2) and 4(6) thereof and pursuant to
registration exemptions under the State Laws; (b) the shares of Class B Stock
must be held in-definitely by WCC unless they are registered.under the
Securities Act and under State Laws or are exempt from registration; and (c) the
reliance of Company and others upon the aforesaid exemptions is predicated in
part upon this representation and warranty.
7.3 Restriction on Sales. WCC understands that no securities of
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Company are presently registered pursuant to Section 12 of the Securities
Exchange Act of 1934 or under the Securities Act, that the Company is not
currently required to comply with the reporting requirements of Section 13 of
the Securities Exchange Act of 1934, and that an exemption from registration
under the Securities Act is not presently available with respect to the Class B
Stock pursuant to Rule 144 promulgated under the Securities Act by the
Securities and Exchange Commission (the "Commission"), and that in any event WCC
may not sell the Class B Stock pursuant to Rule 144 prior to the expiration of a
two-year period after WCC has acquired the Class B Stock, and that any sales
pursuant to Rule 144 are limited in amount and can only be made in full
compliance with the provisions of Rule 144, which may include specific
requirements that Company is then providing information to the public with
respect to its business and financial affairs as provided by Rule 144 and may
restrict the number of shares of Class B Stock WCC may transfer.
7.4 Residence. WCC's principal office is located in the
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Commonwealth of Pennsylvania.
7.5 Institutional, Accredited Investor. WCC is a corporation (a)
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which has a tangible net worth on a consolidated basis, as reflected in its most
recent audited financial statements, of not less than $10,000,000 and (b) which
has had net earnings before taxes, not including extraordinary items, as
reflected on its audited financial statements, of not less than $1,000,000
during its most recent fiscal year or averaging $1,500,000 during its most
recent three fiscal years. The aggregate purchase price of the Class B Stock
does not exceed either 5% of WCC's tangible net worth or 20% of its total net
worth. As used in this paragraph, (a) "tangible net worth" shall include net
worth less the amount of all items of goodwill, preoperating, deferred or
development expenses, patents, trademarks, licenses or other similar accounts;
and (b) "most recent" audited financial statements shall mean audited financial
statements dated not
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more than 16 months prior to the date hereof. WCC is an "accredited investor"
under applicable federal securities laws and an "Institutional Investor" under
applicable Pennsylvania securities laws.
7.6 Availability of Information. Company has made available to
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WCC the opportunity to ask questions of, and receive answers from, its officers
and directors, and any other Person acting on its behalf, concerning the terms
and conditions of this Agreement and the transactions contemplated herein and to
obtain any other information requested by WCC to the extent Company possesses
such information or can acquire it without unreasonable effort or expense. WCC
has been afforded the opportunity to inspect, and to have its auditors or other
agents inspect, the books and records of Company.
7.7 Acts and Proceedings. This Agreement has been duly
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authorized by all necessary action on WCC's part pursuant to the laws of all
pertinent jurisdictions, has been duly executed and delivered by WCC, and is a
valid and binding Agreement of WCC enforceable in accordance with its terms.
8. Replacement of Certificates Representing Class B Stock. The
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replacement of certificates representing Class B Stock which are lost, stolen,
destroyed or mutilated shall be governed by the provisions of the Company's By-
laws.
9. Dilution. In determining the number of shares of Class B Stock of
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1,200,000 which WCC is entitled to purchase under this Agreement, up to 400,000
shares of Class B Stock to be issued to the Jones Financial Companies and up to
1,931,035 shares of Class B Stock issuable under the Profit-Sharing Trust, stock
options, an ESOP or other employee stock arrangements (as set forth in Section
7(Q) of the Financing Agreement) will not be counted.
10. Non-Discrimination.
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10.1 Public Offering. In the event of a proposed public offering
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of any shares of beneficial interest of Company pursuant to a registration
statement filed with the Securities and Exchange Commission, WCC shall be
entitled to participate in any such public offering pro rata with all other
holders (except for The Standard Fire Insurance Company ("Standard Fire")) of
Class A Common Shares of Company ("Class A Stock") and Class B Stock to the
extent that any such holders are entitled to participate in any such public
offering. Nothing in this Agreement shall be interpreted or construed to require
Standard Fire to reduce the number of shares that it proposes to register in any
such offering. WCC shall share in all expenses of any
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such registration to the same extent as the other holders of Class A Stock and
Class B Stock who are participating in the offering.
10.2 Issuances to Third Parties. In the event that Company
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offers to issue any shares of Class A Stock or Class B Stock to any member of
the Management Circle after the date hereof, then WCC shall be entitled to
purchase, at the same price as such member of the Management Circle is
purchasing such shares, WCC's pro rata share of Class A Stock or Class B Stock;
provided, however, that WCC shall not be entitled to purchase its pro rata share
of up to 1,931,035 shares of Class B Stock issuable under the Profit-Sharing
Trust, stock options, an ESOP or other employee stock arrangements (as set forth
in Section 7(Q) of the Financing Agreement). WCC's percentage ownership of
Company shall be diluted on the same basis as the percentage ownership of all
other holders of Class A Stock and Class B Stock in the event the Company issues
any shares of Class A Stock or Class B Stock to any Unrelated Third Party or in
the event of a public offering of Class B Stock by Company. For purposes of this
Section 10.2, the terms "Management Circle" and "Unrelated Third Party" shall
have the meanings ascribed thereto in the Shareholder Rights Agreement.
11. Termination of Transfer Restrictions. The restrictions on
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transferability hereunder shall terminate with respect to the shares of Class B
Stock pledged by WCC under the Pledge Agreement upon (a) the enforcement by the
Agent of any rights under the pledge provided for in the Pledge Agreement, or
(b) at the request of the Agent, at any time when an Event of Default (as
defined in the Senior Credit Agreement) has occurred and is continuing in
connection with a bona fide work-out of the debts of the Company.
12. Pledge Agreement. The shares of Class B Stock issued to WCC under
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this Agreement are being pledged to the Senior Lender pursuant to the Pledge
Agreement. WCC agrees to execute and deliver the Pledge Agreement, the
certificates representing the 1,200,000 shares of Class B Stock issued to WCC,
stock power and other instruments required or contemplated by the terms of the
Pledge Agreement or other Senior Loan Documents.
13. Complete Agreement, Changes, Waivers, and Other Alternatives.
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This Agreement and the Financing Agreement contain the entire agreement between
Company and WCC with respect to the Class B Stock, and all prior understandings,
agreements and statements relating thereto are merged herein. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, unless a statement in writing is signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
14. Notices. All notices, requests, consents and other required or
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permitted hereunder shall be in
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writing and shall be delivered in person, mailed first-class postage prepaid,
registered or certified mail, or sent by telegram, telecopy, express courier
service or hand delivery, to the address set forth below or to such other
address as may be designated by a notice in writing to the other party:
(a) if to WCC:
Westinghouse Credit Corporation
One Oxford Centre
Eighth Floor
301 Grant Street
Pittsburgh, PA 15219
Attention: Carmen J. Gigliotti
Telecopy: (412) 393-3158
(b) if to Company:
Federated Investors
Federated Investors Tower
Pittsburgh, PA 15222-3779
Attention: John W. McGonigle, Esq.
Telecopy: (412) 288-7578
Each such notice, request, or other communication shall for all purposes of this
Agreement be deemed effective or given when delivered personally, when sent and
receipt orally confirmed if made by telegram or telecopy or, in the case of
mailing, on the earlier to occur of actual receipt or the third day after
mailing in the manner provided in this paragraph.
15. Survival of Representations and Warranties. All representations
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and warranties contained or incorporated by reference herein shall survive the
execution and delivery of this Agreement, any investigation at any time made by
WCC or on WCC's behalf, and the sale and purchase of the Class B Stock and
payment therefor.
16. Parties in Interest. The terms and provisions of this Agreement
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shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not, and, in particular, shall inure to the benefit of and be enforceable by the
holder or holders at the time of any of the Class B Stock.
17. Headings. The headings of the sections and paragraphs of this
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Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
18. Choice of Law. The laws of the Commonwealth of Pennsylvania
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shall govern the validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the parties except to the extent
that principles of corporate and business trust law are governed exclusively by
the
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substantive laws of the state of organization of the entity in question.
19. Counterparts. This Agreement may be executed concurrently in two
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or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. Limitation of Liability. WCC is expressly put on notice of the
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limitation of liability as set forth in the Declaration of Trust of Company and
the declaration of trusts of certain of its Subsidiaries and agrees that the
obligations assumed by Company and its Subsidiaries pursuant to this Agreement
and the other Operative Documents be limited in any case to Company and its
Subsidiaries and their respective assets. WCC shall not seek satisfaction of
any obligation of Company or its Subsidiaries under this Agreement from any of
the shareholders of Company, the trustees, officers or employees of those
entities, or any of them.
21. No Transfers to Competitors. WCC may not sell, assign or
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otherwise transfer any of the Class B Stock to any Person whose principal
business is in direct competition with Company's principal business or to any
Person that owns 50% of the equity of such Person.
The parties have executed this Agreement as of the date first above
written.
FEDERATED INVESTORS
By [SIGNATURE ILLEGIBLE]
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Title: Vice President
WESTINGHOUSE CREDIT CORPORATION
By________________________________
Title: Vice President
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EXHIBIT 1
SECTION 4.4 COMMON SHARES.
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4.4.1 RANK.
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The Common Shares shall (a) rank junior to (i) the Series B Preferred
Shares with respect to the payment of dividends, redemption and liquidation
amounts, and (ii) the Series A Preferred Shares, with respect to the payment
(whether currently, upon liquidation as set forth in clauses (i) and (ii) of
section 4.2.3(a), or otherwise) of dividends, redemption and liquidation
amounts, and (b) be on a parity with the Series A Preferred Shares with respect
to Series A Secondary Distributions to the holders of Series A Preferred Shares
made in accordance with section 4.2.3(a) (iii). Except as otherwise expressly
provided in this Article IV, all Common Shares shall be identical and shall
entitle the holders thereof to the same rights and privileges.
4.4.2 DIVIDENDS; REPURCHASES.
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(a) Dividends. Subject to the provisions of sections 4.2 and 4.3,
from and after the date of issuance, the holders of outstanding Common Shares
shall be entitled to receive dividends on the Common Shares, to the exclusion of
the holders of Preferred Shares. All holders of Common Shares shall share
ratably, in accordance with the number of Shares held by each such holder, in
all dividends or distributions payable in cash, obligations of or beneficial
interests in the Trust or other property. All dividends or distributions
declared on Common Shares which are payable in Common Shares shall be declared
at the same rate on the Class A Common Shares and the Class B Common Shares but
shall be payable only in Class A Common Shares to the holders of Class A Common
Shares and in
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Class B Common Shares to the holders of Class B Common Shares.
(b) Repurchases. The Trust shall not make or agree to make a
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Repurchase of any Common Shares or Options except in accordance with section 3.4
of the Shareholder Agreement.
4.4.3 SHARE SPLITS.
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The Trust shall not in any manner subdivide or combine the outstanding
Shares of one class of Common Shares unless the outstanding Shares of the other
classes of Common Shares shall be proportionately subdivided or combined.
4.4.4 LIQUIDATION.
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In the event of any Liquidation of the Trust, after payment (a) of all
Series A Primary Distributions shall have been made to the holders of
outstanding Series A Preferred Shares, and (b) of all Series B Liquidation
Payments shall have been made to the holders of outstanding Series B Preferred
Shares, the holders of Class A Common Shares and Class B Common Shares shall be
entitled to share ratably with the holders of Series A Preferred Shares, in
accordance with the number of Shares held by each such holder (or, in the case
of the holders of Series A Preferred Shares, in accordance with the number of
Class B Common Shares that would be issued to such holders were the outstanding
Series A Preferred Shares converted into Class B Common Shares on the date fixed
for such Liquidation at the Conversion Rate that would apply were such date a
Conversion Notice Date), in the remaining assets of the Trust available for
distribution among the holders of the Common Shares.
4.4.5 VOTING RIGHTS
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Except as otherwise provided in this Article IV or by law, the entire
voting power of the Trust shall be vested in the holders of Class A Common
Shares and each holder of Class A Common Shares shall be entitled to one vote
for each Class A Common Share held by such holder, provided that without the
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consent (given in writing or by vote at any regular or special meeting of
Shareholders) of the holders (or, in the case of clause (b), deemed holders) of
a majority of the aggregate of (a) the Class B
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Common Shares that are then outstanding, and (k) the Class B Common Shares that
would be issued to holders of the Series A Preferred Shares were the outstanding
Series A Preferred Shares converted into Class B Common Shares on the date such
consent is to be obtained at the Conversion Rate that would apply were such date
a Conversion Notice Date, the Trust shall not:
(i) merge, consolidate with or otherwise acquire any corporation or
other business entity, provided that in a transaction (A) not involving the
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transfer of any Shares, (B) in which the Trust is the surviving entity, and
(C) pursuant to which this Declaration of Trust has not been amended,
altered, repealed or superseded, the Trust may, without such consent,
merge, consolidate with or otherwise acquire: (x) a Wholly-Owned Subsidiary
of the Trust; or (Y) any corporation or business entity that was not, prior
to giving effect to such merger, consolidation or other acquisition or any
transaction relating thereto, a Wholly-Owned Subsidiary of the Trust, in
any transaction or series of related transactions not exceeding in value
Ten Million Dollars ($10,000,000) in the aggregate (taking into account all
liabilities assumed by the Trust or its Subsidiaries in any such
transaction or transactions);
(ii) sell, lease, exchange or otherwise dispose of all or
substantially all of the assets of the Trust or any Subsidiary thereof to
other than a Wholly-Owned Subsidiary of the Trust in any transaction or
series of related transactions exceeding value Ten Million Dollars
($10,000,000) in the aggregate (taking into account all liabilities assumed
by the Trust or its Subsidiaries in any such transaction or transactions);
(iii) (A) effect any amendment to this Declaration of Trust or the
By-laws of the Trust that adversely affects the rights, powers or
preferences of the Class B Common Shares or authorize any shares of
beneficial interest in the Trust other than the Preferred Shares and the
Common Shares, provided that the Trust may issue the Series C Preferred
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Shares without such consent, or (B) reclassify or recapitalize any Shares;
or
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(iv) liquidate, dissolve or otherwise wind up the affairs of the Trust
or file, or consent by answer or otherwise to the filing against the Trust
of, a petition for relief of reorganization or arrangement or any other
petition in bankruptcy, insolvency or similar law of any jurisdiction.
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