EXHIBIT 10.9
EXECUTION COPY
INVESTMENT COMPANY SECURITIES PURCHASE AGREEMENT
THIS INVESTMENT COMPANY SECURITIES PURCHASE AGREEMENT (the "Agreement")
is made as of March 31, 2004 by and among Code Hennessy & Simmons IV LP, a
Delaware limited partnership ("CHS"), Hillman Investment Company, a Delaware
corporation ("Invesco"), Ontario Teachers' Pension Plan Board, an Ontario
corporation ("OTPPB", or "Teachers"), HarbourVest Partners VI - Direct Fund,
L.P., a Delaware limited liability partnership ("HarbourVest"), and each of the
other Persons listed on Schedule A attached hereto (collectively, CHS, Teachers,
HarbourVest and the other Persons listed on Schedule A are referred to sometimes
herein individually as "Purchaser" and collectively as the "Purchasers"). Except
as otherwise indicated herein, capitalized terms used herein are defined in
Section 4 hereof.
This Agreement contemplates a transaction in which Invesco will sell,
and the Purchasers will purchase, 57,282.446 shares of Preferred Stock of
Invesco at a price of $1,000.00 per share for an aggregate purchase price of
$57,282,445.56 ("Preferred Stock").
The Hillman Companies, Inc. ("Hillman"), a Delaware corporation (of
which Invesco is a wholly owned subsidiary), is a party to a certain Agreement
and Plan of Merger dated as of February 14, 2004 (the "Merger Agreement") by and
among HCI Acquisition Corp. ("HCI"), Hillman and the Persons set forth on the
Stockholder Signature Page attached thereto in their capacities as stockholders
and optionholders of Hillman, pursuant to which HCI has merged with and into
Hillman (the "Merger").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Authorization and Closing.
(a) Authorization of the Preferred Stock. Invesco shall authorize
the issuance and sale to the Purchasers of Preferred Stock at a price of
$1,000.00 per share, in each case as allocated among the Purchasers in the
manner set forth on Schedule B attached hereto.
(b) Purchase and Sale of the Preferred Stock. After the Effective
Time of the Merger, Invesco shall sell to the Purchasers and, on the terms and
subject to the conditions set forth herein, the Purchasers shall purchase from
Invesco the Preferred Stock, in each case in the amounts and at the purchase
prices set forth on Schedule B attached hereto.
(c) The Closing. The closing of the purchases and sales of the
Preferred Stock (the "Closing") shall take place at the offices of Kirkland &
Ellis LLP, 200 East Randolph Drive, Chicago, Illinois immediately following the
Effective Time on the date hereof, or at such other place as may be agreeable to
CHS. At the Closing, Invesco shall deliver to each Purchaser certificates
evidencing the Preferred Stock to be purchased by such Purchaser, and each
Purchaser shall deliver to Invesco the purchase price by wire transfer of
immediately available
funds to a bank account designated by Invesco in writing in the amount set forth
next to such Purchaser's name on Schedule B attached hereto.
2. Conditions to the Purchasers' Obligations at Closing. The
obligation of each Purchaser to purchase and pay for the Preferred Stock is
subject to the satisfaction as of the Closing of the following conditions:
(a) Representations and Warranties; Covenants. The representations
and warranties contained in Section 3 hereof shall be true and correct at and as
of the date of Closing, except to the extent of changes caused by the
transactions expressly contemplated therein, and Invesco shall have performed in
all material respects all of the covenants required to be performed by it
hereunder prior to the Closing.
(b) HCI Securities Purchase Agreement Conditions. Each of the
conditions listed in Section 2 of that certain HCI Securities Purchase Agreement
dated as of the date hereof by and among HCI and the Purchasers (the "HCI
Securities Purchase Agreement") shall have been performed in all material
respects prior to the Closing.
(c) Closing Documents. Invesco shall have delivered to the
Purchasers all of the following documents:
(i) an Officer's Certificate, dated as of the date
hereof, stating that the conditions specified in Section 2 have been
fully satisfied;
(ii) certified copies of the resolutions duly adopted by
the Board of Directors of Invesco authorizing the execution, delivery
and performance of this Agreement, the Investment Company Stockholders
Agreement dated as of the date hereof by and among Invesco, the
Purchasers and certain managers of Hillman and/or its Subsidiaries (the
"Investment Company Stockholders Agreement"), the Executive Securities
Agreements dated as of the date hereof by and among HCI and certain
managers of Hillman and its Subsidiaries (the "Executive Securities
Agreements"), the Joinder Agreement to the HCI Securities Purchase
Agreement and each of the other agreements contemplated hereby to which
it is a party (the "Transaction Documents"), the issuance and sale of
the Preferred Stock and the consummation of all other transactions
contemplated by this Agreement to which it is a party;
(iii) certified copies of the resolutions duly adopted by
the stockholders of Invesco adopting the Amended Invesco Charter (as
defined in the HCI Securities Purchase Agreement); and
(iv) a certified copy of the Amended Invesco Charter, as
in effect at the Closing.
(d) Waiver of Closing Conditions. Any condition specified in this
Section 2 may be waived only if such waiver is set forth in a writing executed
by the Purchasers.
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3. Representations and Warranties of Invesco. As a material
inducement to the Purchasers to enter into this Agreement and purchase the
Preferred Stock, Invesco hereby represents and warrants that:
(a) Organization and Corporate Power. Invesco is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which its ownership of
property or conduct of business requires it to qualify. Invesco has all
requisite corporate power and authority and all material licenses, permits and
authorizations necessary to own and operate its properties, to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement.
(b) Preferred Stock Outstanding.
(i) As of the Closing, the authorized capital stock of
Invesco shall consist of 100 shares of Common Stock (of which 100
shares shall be issued and outstanding), 166,667 shares of Preferred
Stock (of which 60,000.000 shares shall be issued and outstanding and
of which 6,666.666 shares shall be reserved for issuance upon the
exercise of the options granted pursuant to the Executive Securities
Agreements).
(ii) As of the Closing, neither the Invesco nor any
Subsidiary shall have outstanding any other stock or securities
convertible or exchangeable for any shares of its capital stock nor
shall it have outstanding any rights or options to subscribe for or to
purchase its capital stock or any stock or securities convertible into
or exchangeable for its capital stock except as set forth herein and in
the Executive Securities Agreements.
(iii) There are no statutory or, other than as set forth in
this Agreement and the Investment Company Stockholders Agreement,
contractual preemptive rights or rights of refusal to Invesco's
securities or options, warrants or other rights to acquire or cause the
issuance of such securities. Assuming the accuracy of the
representations in Section 5(c) and in the Executive Securities
Agreements, Invesco has not violated any applicable federal or state
securities laws in connection with the offer, sale or issuance of any
of the Preferred Stock. To Invesco's knowledge, there are no agreements
with respect to the voting or transfer of the Preferred Stock except
for the Investment Company Stockholders Agreement and the Executive
Securities Agreements.
(c) Authorization; No Breach. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby to
which Invesco is a party (the "Invesco Agreements") have been duly authorized by
Invesco and, to the extent required, its stockholders. Each of the Invesco
Agreements constitutes a valid and binding obligation of Invesco, enforceable in
accordance with its terms. The execution and delivery by Invesco of the Invesco
Agreements, the offering, sale and issuance of the Preferred Stock hereunder,
and the fulfillment of and compliance with the respective terms hereof and
thereof by Invesco, do not and shall not (i) conflict with or result in a breach
of the terms, conditions or provisions of, (ii) constitute a default under,
(iii) result in the creation of any lien, security interest charge or
encumbrance upon Invesco's securities or assets pursuant to, (iv) give any third
party the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require
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any authorization, consent, approval, exemption or other action by or notice to
any court, administrative or governmental body or other Person pursuant to the
Invesco Agreements, or any law, statute, rule or regulation to which Invesco is
subject, or any agreement, instrument, order, judgment or decree to which
Invesco is subject.
(d) Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon Invesco. Invesco shall pay, and hold the Purchasers harmless against, any
liability, loss or expense (including, without limitation, attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
(e) Governmental Consent, etc. No permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by
Invesco of this Agreement or the other agreements contemplated hereby, or the
consummation by Invesco of any other transactions contemplated hereby or
thereby.
4. Definitions. For the purposes of this Agreement, the following
terms have the meanings set forth below:
"Affiliate" (and collectively "Affiliates") means with respect
to any Person, any other Person controlling, controlled by, or under common
control with such first Person and in the case of a Person which is a
partnership, any partner of that Person.
"Dollars" and the sign "$" means lawful money of the United
States of America.
"Effective Time" has the meaning set forth in the Merger
Agreement.
"Officer's Certificate" means a certificate signed by the
chief executive officer or chief financial officer of Invesco, stating that (i)
the officer signing such certificate has made or has caused to be made such
investigations as are necessary in order to permit such officer to verify the
accuracy of the information set forth in such certificate and (ii) to the best
of such officer's knowledge, such certificate does not misstate any material
fact and does not omit to state any fact necessary to make the certificate not
misleading.
"Person" means an individual, a partnership, a corporation, a
limited liability company, association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means the Class A Preferred Stock, par value
$0.01 per share of Invesco.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities and Exchange Commission" includes any governmental
body or agency succeeding to the functions thereof.
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"Subsidiary" means, with respect to any Person, a corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of the Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association
or other business entity gains or losses or shall be or control any managing
director or member or general partner of such limited liability company,
partnership, association, or other business entity.
5. Miscellaneous.
(a) Pre-Emptive Rights. If after the date hereof Invesco
authorizes the issuance or sale (each an "Issuance") of any equity securities of
Invesco or any securities convertible, exchangeable or exercisable for equity
securities of Invesco and any other Stockholder Shares (as defined in the
Investment Company Stockholders Agreement), Invesco shall, at least 15 days and
not more than 60 days prior to such issuance, notify the CHS Group (as defined
in the Investment Company Stockholders Agreement) and Teachers in writing of the
Issuance (including the price, the purchaser thereof and the other terms
thereof) and grant to the CHS Group and to Teachers the right (the "Right") to
subscribe for and concurrently purchase such securities (collectively, the
"Preemptive Stock"), in the same proportion at the same price and on the same
terms as issued in the Issuance such that, after giving effect to the Issuance
and exercise of the Right, the percentage of the Preemptive Stock immediately
following such issuance owned by each such holder shall equal the percentage of
the outstanding Stockholder Shares as was owned by each such holder prior to the
Issuance on a fully diluted basis (but excluding any Stockholder Shares or any
class of capital stock of Invesco's Subsidiaries which are not then fully vested
and, in the case of options, warrants or other rights to acquire capital stock,
immediately exerciseable, convertible or exchangeable for Stockholder Shares or
any class of capital stock of Invesco's Subsidiaries issued in such Issuance) or
such lesser amount designated by such holder. Notwithstanding the foregoing, the
rights set forth in this Section 5(a) shall not apply to Issuances: (i) pro rata
to all holders of equity securities of Invesco, as a subdivision of or other
distribution in respect of, equity securities of Invesco, (ii) to executives,
directors, employees and consultants of Invesco or its Subsidiaries, (iii) in
connection with acquisitions by Invesco or its Subsidiaries, (iv) in a Public
Offering (as defined in the Investment Company Stockholders Agreement) or (v) to
the Purchasers on the Closing Date pursuant to this Agreement. In addition, the
rights set forth in this Section 5(a) shall not apply with respect to the CHS
Group or Teachers in connection with an Issuance to the extent the CHS Group or
Teachers have available to them and exercise the pre-emptive rights set forth in
the Investment Company Stockholders Agreement in connection with such Issuance.
The rights set forth in this Section 5(a) shall continue until the earlier of
the consummation of a Sale of the Company (as defined in the Investment Company
Stockholders Agreement) or a Public Offering.
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(b) Remedies. The Purchasers shall have all rights and remedies
set forth in this Agreement and all rights and remedies which the Purchasers
have been granted at any time under any other agreement or contract and all of
the rights which the Purchasers have under any law. Any Person having any rights
under any provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
(c) Purchasers' Investment Representations. Each Purchaser is an
"Accredited Investor" as such term is defined in Regulation D promulgated by the
Securities and Exchange Commission under the Securities Act. Each Purchaser
hereby represents that he, she or it is acquiring the Preferred Stock purchased
hereunder or acquired pursuant hereto for his, her or its own account with the
present intention of holding such securities for purposes of investment, and
that he, she or it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws; provided that nothing contained herein shall prevent the
Purchasers and subsequent holders of Preferred Stock from transferring such
securities in compliance with the provisions of the Investment Company
Stockholders Agreement.
(d) Place of Payments with Respect to the Preferred Stock. All
payments to be made to a Purchaser with respect to the Preferred Stock,
including, without limitation, dividends and redemption payments, shall be
delivered to the respective address indicated on Schedule B or to such other
Person or account as a Purchaser may from time to time specify to Invesco by
prior written notice.
(e) Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and Invesco may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if Invesco has obtained the written consent of CHS and
Teachers; provided that in the event that such amendment or waiver would treat a
Purchaser or group of Purchasers materially and adversely differently from any
other Purchaser or group of Purchasers, then such amendment or waiver will
require the consent of such Purchaser or group of Purchasers (based on the
relative ownership of Preferred Stock) so materially and adversely treated. No
other course of dealing between Invesco and any Purchaser or any delay in
exercising any rights hereunder shall operate as a waiver of any rights of any
such Person. For purposes of this Agreement, any Preferred Stock held by Invesco
shall not be deemed to be outstanding.
(f) Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by any Purchaser or on such Purchaser's
behalf.
(g) Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for each Purchaser's benefit as a
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purchaser of the Preferred Stock are also for the benefit of, and enforceable
by, any subsequent holder of the Preferred Stock.
(h) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(i) Counterparts; Facsimile Signature. This Agreement, the
agreements referred to herein, and each other agreement or instrument entered
into in connection herewith or therewith or contemplated hereby or thereby, and
any amendments hereto or thereto, to the extent signed and delivered by means of
a facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
(j) Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation.
(k) Governing Law. This Agreement will be governed in all respects
by the laws of the State of Delaware, without regard to the principles of
conflicts of law of such state.
(l) Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid.
Invesco's address is:
Hillman Investment Company
10590 Hamilton Avenue
Cincinnati, Ohio 45231
Attention: Chief Executive Officer
with a copy (which shall not consitute notice to Invesco) to:
Code Hennessy & Simmons IV LP
10 South Wacker Drive, Suite 3175
Chicago, Illinois 60606
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Attention: Peter M. Gotsch
and
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, IL 60601
Attention: Stephen L. Ritchie, P.C.
Teachers' address is:
Ontario Teachers' Pension Plan Board
5640 Yonge Street
Toronto, Ontario M2M 4H5
Canada
Attention: J. Mark MacDonald
with copies (which shall not consitute notice to Teachers) to:
Ontario Teachers' Pension Plan Board
Law Department
5650 Yonge Street
Toronto, Ontario M2M 4H5
Canada
Attention: Legal Counsel, Investments
and
Torys LLP
237 Park Avenue
New York, NY 10017
Attention: Joseph J. Romagnoli, Esq.
HarbourVest's address is:
HarbourVest Partners VI - Direct Fund, L.P.
c/o HarbourVest Partners LLC
One Financial Center, 44th floor
Boston, MA 02111
with a copy (which shall not constitute notice to HarbourVest)
to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: David J. Schwartz
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(m) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP
ESTABLISHED AMONG THE PARTIES HEREUNDER.
(n) Entire Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, that may have related to the subject matter hereof in any way.
(o) Understanding Among the Purchasers. The determination of each
Purchaser to purchase the Preferred Stock pursuant to this Agreement has been
made by such Purchaser independent of any other Purchaser and independent of any
statements or opinions as to the advisability of such purchase or as to the
properties, business, prospects or condition (financial or otherwise) of Invesco
which may have been made or given by any other Purchaser or by any agent or
employee of any other Purchaser. In addition, it is acknowledged by each of the
Purchasers that no Purchaser has acted as an agent of any other Purchaser in
connection with making its investment hereunder and that no Purchaser shall be
acting as an agent of any other Purchaser in connection with monitoring its
investment hereunder. It is further acknowledged by each of the other Purchasers
that CHS has retained Kirkland & Ellis LLP to act as their counsel in connection
with the transactions contemplated hereby and that Kirkland & Ellis LLP has not
acted as counsel for any of the other Purchasers in connection herewith and that
none of the other Purchasers has the status of a client of Kirkland & Ellis LLP
for conflict of interest or other purposes as a result thereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Investment Company Securities Purchase Agreement on the date first written
above.
CODE HENNESSY & SIMMONS IV LP
By: CHS Management IV LP
Its: General Partner
By: Code Hennessy & Simmons LLC
Its: General Partner
By: /s/ PETER M. GOTSCH
-----------------------------------------
Peter M. Gotsch
Partner
CHS ASSOCIATES IV LP
By: Code Hennessy & Simmons LLC
Its: General Partner
/s/ PETER M. GOTSCH
---------------------------------------------
By: Peter M. Gotsch
Its:
HILLMAN INVESTMENT COMPANY
By: /s/ MAX W. HILLMAN
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ J. MARK MACDONALD
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
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HARBOURVEST PARTNERS VI - DIRECT FUND, L.P.
By: HarbourVest VI - Direct Associates LLC
Its: General Partner
By: HarbourVest Partners, LLC
Its: Managing Member
By: /s/ WILLIAM A. JOHNSTON
--------------------------------------
Name:
--------------------------------------
Its:
--------------------------------------
RANDOLPH STREET PARTNERS
/s/ STEPHEN L. RITCHIE
---------------------------------------------
By:
Its: Managing Partner
/s/ PAIGE WALSH
---------------------------------------------
Paige Walsh
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