SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is made and entered into this ____, day of
____________, 1976, by and between TEMTEX INDUSTRIES, INC. a
Texas corporation with its principal place of business in
Dallas, Texas (the "Corporation"), XXXXX X. UPFIELD, a resident
of Dallas, Texas (the "Stockholder"), and REPUBLIC NATIONAL BANK
OF DALLAS, a national bank with principal office in Dallas,
Texas, Trustee hereunder (the "Trustee").
W I T N E S S E T H
WHEREAS, Stockholder owns a substantial amount of the
presently issued and outstanding shares of common stock of the
Corporation (the "Common Stock"), the public sale of a large
portion of which at any time might, in the opinion of the
Corporation, be injurious to the best financial interests of the
Corporation; and
WHEREAS, Stockholder desires assurance that if he should
die his estate will have a source of sufficient funds to pay all
estate and inheritance taxes and funeral and administration
expenses imposed or incurred by reason of his death, since in
the absence of such assurance he or his estate might be required
to sell a portion of his shares of Common Stock in a public
transaction in order to raise such funds, and the Corporation
desires to provide such assurance to Stockholder; and
WHEREAS, Stockholder and the Corporation have reached an
agreement whereby (i) upon the death of Stockholder certain of
his shares of Common Stock may be sold by his estate to the
Corporation or purchased by the Corporation from his estate, at
the option of the respective parties, and (ii) the funds to
finance any such sale or purchase of shares will be provided
through insurance on the life of Stockholder, and
said parties wish to evidence the terms of their agreement
herein;
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NOW, THEREFORE, in consideration of the mutual covenants
herein contained, each to the other, the parties hereby agree as
follows:
1. OPTIONAL SALE OR PURCHASE OF COMMON STOCK. In the
event of the death of Stockholder:
(a) the Corporation, upon demand of the legal
representatives of the estate of Stockholder (the "Estate") made
within the period and in the manner provided in paragraph 2
below, shall purchase from the Estate, or
(b) the Estate, upon demand of the Corporation also
made within the period and in the manner provided in paragraph 2
below, shall sell to the Corporation, up to that portion of the
shares of Common Stock specified in paragraph 4 below owned
beneficially by Stockholder on the date of his death (the total
shares included in such portion in either case being hereafter
called the "Purchasable Stock") on the terms and conditions
hereinafter set forth.
2. METHOD OF EXERCISING OPTION. If the legal
representatives of the Stockholder or the Corporation shall
desire to exercise the option which the respective parties shall
have pursuant to paragraph 1 above to require the Corporation to
purchase, or the Estate to sell, any of the Purchasable Stock,
as the case may be, the party desiring to make such demand shall
give notice thereof to the other party and to the Trustee within
the period (the "Option Period") commencing one (1) month after
the date of death of Stockholder and ending on the latest date
by which any death taxes may be assessed against or with respect
to the estate of Stockholder under provisions of applicable law
then in effect, provided however that any such notice shall be
given in any event within six (6) years after the date of death
of Stockholder. Said notice shall specify the number of shares
of Common Stock to be bought or sold pursuant to such exercise
of said option, the purchase price thereof computed in
accordance with paragraph 3 below, the Purchasable Stock of
Stockholder computed in accordance with paragraph 4 below, and
the name of the purchasing or selling party. Said option may be
exercised by either party as to any part of the Purchasable
Stock and from time to time by more than one such exercise
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during the Option Period, provided that a separate notice shall
be given for each such exercise and further provided that the
aggregate number of shares of Common Stock included in all such
notices of exercise, whether given by the purchasing party or
the selling party, shall not exceed the limitation on shares
comprising the Purchasable Stock provided in paragraph 4 below.
3. PURCHASE PRICE. The purchase price of each share of
Purchasable Stock sold hereunder shall be equal to:
(a) the mean between the highest and lowest quoted
selling price for each share of Common Stock of the Corporation
in any public securities exchange or market, if available, or
otherwise the mean between the bona fide closing bid and asked
prices therefor in said exchange or market, on the date of death
of Stockholder, or if no such sales or prices shall be available
on said date, then a weighted average of the means between the
highest and lowest selling prices, or the bona fide closing bid
and asked prices, as the case may be, for each such share on the
nearest trading date before and the nearest trading date after
said date of death of Stockholder (said average to be weighted
inversely by the respective numbers of trading dates between the
selling dates or the price quotation dates and said date of
death in the same manner used in determining the valuation of
stocks for Federal estate tax purposes as set forth in Treasury
Regulation S20.2031-2(d) promulgated by the Commissioner of
Internal Revenue under Section 2031 of the Internal Revenue
Code); less
(b) an amount equal to ten percent (10%) of the
amount determined under (a) of this paragraph 3.
4. LIMITATION ON PURCHASABLE STOCK. The Purchasable
Stock shall not exceed that number of whole shares of the Common
Stock which, when multiplied times the purchase price per share
thereof as determined pursuant to paragraph 3 above, shall
result in an aggregate purchase price for said shares which is
the lesser of:
(a) an amount equal to the sum of (i) the estate,
inheritance, legacy and succession taxes (including any interest
collected as a part of such taxes) imposed because of
Stockholder's death and (ii) the amount of funeral and
administration expenses allowable as
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deductions in computing the taxable estate of Stockholder under
Section 2053 of the Internal Revenue Code, or corresponding provisions
of subsequent federal tax statutes.
(b) the amount paid to the Trustee hereunder upon and
by reason of the death of Stockholder pursuant to' the terms of
any life insurance policy listed on Schedule A attached hereto
and made a part hereof, including any policies which may be
substituted therefor.
The legal representatives of the Estate shall furnish to the
Corporation and the Trustee on the request of either information
as to any of the amounts referred to in (a) of this paragraph 4,
together with such corroborative evidence thereof as shall be
available, to the extent said information is known to said
representatives at the time of said request. The Trustee shall
furnish to the Corporation and the legal representatives of the
Estate on the request of either information as to the amount
referred to in (b) of this paragraph 4, also together with such
corroborative evidence thereof as shall be available, to the
extent said information is known to the Trustee at the time of
said request.
5. ADDITIONAL CONDITIONS AND LIMITATIONS.
Notwithstanding any other provisions of this Agreement which may
be to the contrary:
(a) The Estate shall not be obligated to sell any
shares of the Purchasable Stock to the Corporation following the
Corporation's exercise of the option which it has pursuant to
paragraph 1 above to purchase the Purchasable Stock, unless
prior to the closing the Estate shall have obtained a ruling
from the Internal Revenue Service or an opinion of counsel
satisfactory in form and content to the Estate, to the effect
that the purchase of such shares of Purchasable Stock by the
Corporation will be treated as a distribution in full payment
and exchange therefor under Section 302(b) of the internal
Revenue Code, or corresponding provisions of subsequent federal
tax statutes.
(b) In addition to the limitation on the amount of
Purchasable Stock under paragraph 4 above, the Corporation shall
not have any obligation or right hereunder to purchase shares of
Common Stock from the Estate if and to the extent that such
purchase would result in
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an impairment of capital of the Corporation or otherwise be
in violation of applicable state law relative to the
Corporation's purchase of its own shares. In
the event that either the Corporation or the legal
representatives of the Estate believes that any limitation under
this paragraph 5(b) shall be or become applicable, such party
shall give notice thereof to the other party and to the Trustee
prior to the time for closing any sale or purchase of shares
hereunder setting forth the reason therefor. Any such notice
shall be controlling of said obligations and rights of the
Corporation hereunder unless disputed by the selling or
purchasing party by further notice to the other party and to the
Trustee given within fifteen (15) days after receipt of the
first mentioned notice, in which case the matter shall be
resolved thereafter only by mutual agreement of the selling and
purchasing parties or by final decision of a court of law having
jurisdiction thereof. In no event shall the Trustee be charged
with any duty or responsibility to decide whether or not any
limitation under this paragraph 5(b) shall be applicable. If
the Corporation is unable to purchase all or any part of the
Purchasable Stock because of a limitation under this paragraph
5(b), the Estate may offer or sell those shares otherwise
includable in the Purchasable Stock free and clear of any
obligations or restrictions on transfer thereon otherwise
provided for in this Agreement.
6. CLOSING OF SALE. The closing of any sale of shares of
Purchasable Stock shall be held at the principal office of the
Corporation at a time mutually agreeable to the selling and
purchasing parties and the Trustee not more than thirty (30)
days after date of the notice specified in paragraph 2 above
whereby the selling or purchasing party shall have exercised the
option to sell or purchase the same hereunder; provided,
however, that if such notice has been given by the Corporation
and the Estate intends to obtain a ruling from the Internal
Revenue Service pursuant to paragraph 5(a) above, the Estate
shall have the right to postpone the closing to a date selected
by the Estate not more than two hundred seventy (270) days after
the date of such notice, in which event the Estate promptly, and
in any event within forty-five,(45) days from the date of such
notice, shall file an application for such ruling with the
Internal Revenue Service. At said closing the purchase price of
all shares thus sold to or purchased by the
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Corporation hereunder shall be payable in cash to the Estate by the Trustee
on behalf of the Corporation out of the proceeds of insurance on
the life of Stockholder referred to in paragraph 7 below, and
the legal representatives of the Estate shall deliver to the
Corporation certificates evidencing said shares duly endorsed
and accompanied by evidence of the authority of said
representatives to act for the Estate in such sale and any other
evidence customarily required for transfer of shares of Common
Stock of the Corporation by a decedent's estate. Any transfer
taxes applicable to such sale shall be paid by the Estate.
7. MAINTENANCE OF INSURANCE. To provide the funds with
which the Corporation shall discharge any obligation it may
incur to pay for Purchasable Stock hereunder the Corporation has
acquired and now owns the policies of insurance on the life of
Stockholder listed in Schedule A attached hereto and made a part
hereof. The Corporation agrees:
(a) to deposit said policies with the Trustee;
(b) to designate the Trustee as beneficiary of said
policies and the proceeds thereof as payable in
one lump SUM;
(c) to pay timely all premiums due on said policies;
and
(d) to deposit proof of payment of each premium with
the Trustee within fifteen (15) days after each
such payment is made.
Upon mutual agreement of the Corporation and Stockholder any of
the policies described in attached Schedule A may be withdrawn
by the Corporation from the Trustee and the terms of this
Agreement so long as one or more other policies of insurance on
the life of Stockholder of equal face amount are substituted
therefor by the Corporation and appropriate changes are made in
said Schedule A.
8. DISPOSITION OF PROCEEDS OF INSURANCE OR INSURANCE
POLICIES. Promptly following receipt of advice of the death of
Stockholder, whether by notice from the Corporation or the legal
representatives of the Estate or otherwise, the Trustee shall
make claim to the proceeds of the insurance policy or policies
on the life of Stockholder held by the Trustee hereunder. Upon
collection of said proceeds the Trustee shall give prompt notice
thereof to the Corporation and
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said representatives. From time
to time thereafter during the remaining term of this Agreement
until receipt of notice of exercise of any option to sell or to
purchase shares of Purchasable Stock provided for in paragraph 1
above, the Trustee shall deposit or invest said proceeds at
interest for the Corporation (i) in one or more evidences of
indebtedness of the United States of America or any agency
therefor or (ii) in certificates of deposit issued by Trustee or
any other national bank approved by the Corporation and the
Estate; provided., however, that any such deposit or investment
shall only be in such form that the Trustee may sell, collect or
otherwise reduce said deposit or investment to cash within not
more than thirty (30) days from the date of said deposit or
investment, and further provided that the Trustee shall furnish
information to the Corporation promptly of all such deposits of
said insurance proceeds, collections thereof and interest earned
thereon. After receipt of any notice of exercise of any option
held hereunder, the Trustee shall cause all or a portion of the
proceeds of insurance on the life of Stockholder held by it
hereunder at least as great as the purchase price of the shares
to be sold or purchased pursuant to said notice to be reduced to
cash by the closing date therefor. At such closing, upon being
furnished with written evidence of (a) the agreement of the
selling and purchasing parties of the purchase price of the
shares of Purchasable Stock being sold or purchased and (b) the
delivery of said shares to the Corporation in accordance with
paragraph 6 above and in the absence of any party having given
prior notice to the Trustee of the applicability of any
provision of paragraph 5 above or paragraphs 13 or 14 below (or
if any such notice shall have been given then upon resolution of
the matter referred to therein in accordance with the pertinent
provisions of this Agreement) , the Trustee shall pay an amount
equal to said purchase price to the selling party in cash out of
the aforementioned insurance proceeds. If this Agreement shall
be terminated pursuant to paragraph 14 below while the Trustee
shall be holding any proceeds of insurance collected on the life
of Stockholder, the Trustee, upon receiving notice thereof,
shall pay to the Corporation promptly following such termination
any excess of such proceeds over the aggregate purchase price of
shares of Purchasable Stock theretofore sold to or purchased by
the Corporation from the Estate (if neither the Estate nor the
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Corporation shall have exercised the option provided in
paragraph 1 above to sell or purchase such shares of Purchasable
Stock, then such excess shall consists of all proceeds of such
insurance held by the Trustee hereunder). If this Agreement
shall be terminated pursuant to said paragraph 14 while the
Trustee shall be holding any insurance policies subject to this
Agreement, the Trustee, upon receiving notice thereof, shall
return promptly to the Corporation the policy or policies on the
life of Stockholder. The Trustee shall pay to the Corporation
at intervals not less frequent than annually while any insurance
proceeds collected hereunder are held and deposited or invested
at interest by the Trustee any and all interest earned from the
deposit or investment thereof.
9. POWERS, DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
The Trustee shall have the following powers, duties and
responsibilities hereunder:
(a) To receive and hold safely in its custody until (i)
the death of Stockholder or (ii) termination of this Agreement
and return to the Corporation pursuant to paragraph 8 above the
insurance policies on the life of Stockholder described in
attached Schedule A and any policies substituted therefor
pursuant to paragraph 7 above.
(b) Upon and after the death of Stockholder to make claim
for, collect, hold, deposit or invest, and pay over the proceeds
of (i) the insurance policy or policies on the life of
Stockholder and (ii) any deposits or investments thereof and
interest earned thereon for the account of the Corporation, in
accordance with the provisions of paragraph 8 above.
(c) To prepare and file any and all tax returns or notices
and furnish any information required by any governmental
authority with respect to any transaction effected by the
Trustee under this Agreement.
(d) To provide to the interested parties hereunder such
notices and/or information as shall be required or permitted by
the Trustee under any other provision of this .Agreement,
including copies of any returns or notices prepared and filed or
information furnished pursuant to (c) of this paragraph 9.
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The Trustee shall not be responsible for any loss or
depreciation in value of any insurance policy or the proceeds
thereof held by it hereunder, nor for any loss, damage or
expense arising from the performance of its duties or exercise
of its powers hereunder so long as the Trustee shall have acted
in good faith in performing or exercising the same. Under no
circumstances shall the Trustee be answerable or accountable for
any property, including money, which does not come within its
possession or control. The Trustee shall not incur any personal
liability to any person or corporation dealing with it in the
performance of its duties or the exercise of its powers
hereunder, and the Trustee may act or contract in such form that
it shall be exempt from such personal liability.
10. COMPENSATION OF THE TRUSTEE. The Corporation shall
reimburse the Trustee for any expense incurred by it in carrying
out the provisions of this Agreement and shall pay the Trustee
reasonable and customary compensation for serving as Trustee
hereunder. The Trustee shall not be required to furnish bond or
any other security for serving in said capacity hereunder.
11. RESIGNATION OF THE TRUSTEE. Republic National Bank of
Dallas or any successor Trustee shall be authorized to resign as
Trustee by notice (i) to Stockholder (or the legal
representatives of the Estate after his death) and (ii) to the
Corporation given at least thirty (30) days prior to the
effective date thereof, whereupon prior to said effective date
said parties receiving such notice shall mutually appoint
another national bank with principal office in the State of
Texas having trust powers and capital and surplus of at least
Ten Million Dollars ($10,000,000.00) to serve as successor
Trustee hereunder; provided that, in the event said parties, for
any reason, shall fail to so appoint a successor Trustee within
said period then the successor Trustee shall be such national
bank having the aforementioned qualifications as shall be
appointed at the request of any of said parties by the senior
judge of the United States District Courts then sitting in the
Northern Judicial District of Texas, said judge acting in his or
her individual capacity (and not his or her judicial capacity),
with said appointment to be made in writing and notified to said
parties thereby affected.
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12. REORGANIZATION OF THE TRUSTEE. If Republic National
Bank of Dallas or any successor Trustee serving hereunder should
change its name, be reorganized, merged or consolidated with or
acquired by any other bank or trust company, acquire any other
bank or trust company, or be converted into a different type of
bank or trust company, it shall be deemed a continuing entity
and shall continue to act as Trustee hereunder.
13. SUSPENSION OF EXERCISE OF OPTIONS. Notwithstanding
any other provisions of this Agreement which may be to the
contrary, no option provided for in this Agreement shall be
exercised during any period while the Corporation shall be
making a distribution of any of its securities if the exercise
thereof would violate any Federal or state securities laws, but
upon the termination thereof the right to exercise said options
shall recommence subject to the other provisions of this
Agreement, The Corporation shall give notice of any such
distribution and the beginning and ending dates thereof to the
Stockholder (or the legal representatives of the Estate if he
shall have died) and to the Trustee.
14. TERMINATION OF AGREEMENT. Further, notwithstanding
any other provision of this Agreement which may be to the
contrary, this Agreement and all rights and obligations of the
parties hereunder as to Purchasable Stock shall terminate and
be of no further force or effect:
(a) upon the determination of bankruptcy or the
dissolution of the Corporation;
(b) upon the cessation of regular business
activities by the Corporation;
(c) upon the listing of any securities of the
Corporation, including the Common Stock thereof, on a
public stock exchange if the agreement or the options
contained herein shall not be authorized by the rules of
said exchange;
(d) at the option of the Corporation, exercisable by
written notice given to the legal representatives of the
Estate prior to the purchase of any Purchasable Stock
hereunder, in the event the purchase price per share of the
Purchasable Stock (determined as provided in paragraph 3
hereof) shall exceed 200% of the book value per
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share thereof, determined as of the end of the fiscal quarter
immediately preceding the date of Stockholder's death by
the Chief Financial Officer of the Corporation;
(e) at the option of the legal representatives of the
Estate, exercisable by written notice given to the
Corporation prior to the purchase of any Purchasable Stock
hereunder, in the event the purchase price per share of the
Purchasable Stock (determined as provided in paragraph 3
hereof) shall be less than 75% of the book value per share
thereof, determined as of the end of the fiscal quarter
immediately preceding the date of Stockholder's death by
the Chief Financial Officer of the Corporation; or
(f) by the mutual written consent of Stockholder, or
the legal representatives of the Estate, and the
Corporation.
Also, in the event that Stockholder shall dispose during his
lifetime of all the Common Stock he now owns, this Agreement and
all rights and obligations of Stockholder and the Corporation as
to Purchasable Stock hereunder shall terminate and be of no
further force or effect. In the event of any such termination
referred to in this paragraph 14 any party to this Agreement
having evidence pertaining thereto shall give notice thereof to
the other parties hereto, and such notice shall be controlling
of the obligations and rights of all such parties unless
disputed in the same manner provided in paragraph 5 above, in
which case the matter shall be similarly resolved (the Trustee
in no such event being charged with any duty or responsibility
to decide the same).
15. PURCHASE OF INSURANCE POLICY OR POLICIES BY STOCKHOLDER.
If Stockholder ceases at any time to own Common Stock of the
Corporation, or if any of the provisions of paragraph 5 or 14
above shall become applicable with the effect of terminating
this Agreement or the obligations of the Corporation hereunder
to purchase shares of Purchasable Stock from the Estate after
Stockholder's death if the legal representatives of the Estate
should wish to exercise their option to sell the same hereunder,
then Stockholder may, at his option, purchase from the
Corporation any part or all of any insurance policy owned by the
Corporation on his life and then subject to this Agreement, for
its cash surrender value, if any, net of any policy
indebtedness, plus any
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unearned premium thereon at the date of
such purchase, by giving notice and tendering cash payment
therefor to the Corporation at any time within thirty (30) days
after occurrence of the aforementioned event; and the
Corporation, or the Trustee on its behalf, shall deliver such
policy or portion thereof so purchased together with duly
executed instruments evidencing transfer of ownership and change
of beneficiary thereof as Stockholder shall direct.
16. NOTICE. Any notice required or permitted to be given
under this Agreement shall be given in writing and delivered in
person or by letter deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, addressed to
the party to be notified at the last known address of such
party.
17. BINDING EFFECT OF AGREEMENT. This Agreement shall be
binding upon not only the parties hereto but also their heirs,
legal representatives, successors and assigns, including but not
limited to any corporation or entity which may acquire all or
substantially all of the assets and business of the Corporation
or with or into which the Corporation may be consolidated or
merged, provided that the rights and .obligations hereunder of
the surviving corporation in any consolidation or merger to
which the Corporation is a party and of any corporation to which
the Corporation may assign all or substantially all of its
assets or business shall be to purchase its own class or series
of publicly held securities owned by Stockholder at the date of
his death having a purchase price, determined in accordance with
paragraph 3 above, equal to the maximum purchase price for the
Purchasable Stock specified in paragraph 4 above.
18. RESTRICTIONS ON TRANSFER OF CERTAIN SHARES OF COMMON
STOCK FOLLOWING DEATH OF STOCKHOLDER. Upon and following the
death of Stockholder until the time specified in the next to
last sentence of this paragraph 18, that number of shares of
Common Stock owned by Stockholder at said date of death having
an aggregate value, when priced according to the provisions of
paragraph 3 above' equal to an amount determined under (b) of
paragraph 4 above (said shares being hereafter called the
"Restricted Maximum Purchasable Stock"), shall become and be
restricted from transfer by the Estate to any transferee other
than the Corporation pursuant to the terms of this Agreement
unless the Corporation expressly waives said restriction
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by written consent delivered to the Estate. Promptly after the
Trustee shall have given the notice of collection of the
proceeds of the insurance policy or policies on the life of
Stockholder held hereunder, as provided in paragraph 8 above,
the legal representatives of the Estate shall surrender to the
Corporation certificates evidencing the number of shares of
Restricted Maximum Purchasable Stock, together with a
computation thereof made in accordance with the foregoing
provisions of this paragraph 18 and the amount reflected in the
aforementioned notice from the Trustee, and the Corporation
shall thereupon cause the following legend to be noted upon or
affixed to said certificates (or to new certificates registered
in the name of the Estate) evidencing shares comprising the
Restricted maximum Purchasable Stock before returning the same
to said legal representatives of the Estate:
"The shares of Common Stock of Temtex Industries, Inc.
(the 'Corporation'), represented by this certificate
are subject to restrictions on transferability imposed
by a certain Share Purchase the Corporation, Xxxxx X.
Upfield and Republic National Bank of Dallas, Trustee.
A copy of such Agreement is on file at the principal
place of business of the Corporation and at its
registered office and is subject to the same right of
examination by a shareholder of the Corporation, in
person or by agent, attorney, or accountant, as are
the books and records of the Corporation. The
Corporation will furnish a copy of said Agreement to
the holder of this certificate without charge upon
written request to the Corporation at its aforesaid
principal place of business or registered office."
Upon (i) expiration of the Option Period with respect to any
Purchasable Stock owned by Stockholder at the date of his death
or (ii) any earlier termination of (a) the obligations and
rights of the Corporation or (b) this Agreement pursuant to the
provisions of paragraphs 5 or 14 above, the legal,
representatives of the Estate may surrender to the Corporation
any certificates evidencing shares of Common Stock then owned by
the Estate and bearing the above legend or notation, and the
Corporation shall reissue new certificates therefor without said
legend or notation and deliver the same to the legal
representatives of the Estate, whereupon said shares shall no
longer be subject to any restrictions on transfer under this
Agreement. Nothing herein shall be construed to impose any
restriction on transferability of any shares of Common Stock
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owned by Stockholder at the date of his death in excess of the
Restricted Maximum Purchasable Stock, and the legal
representatives of the Estate shall be free to transfer any such
excess shares without restriction hereunder.
19. DISCLOSURE TO AND APPROVAL BY STOCKHOLDERS OF THE
CORPORATION. This Agreement and the provisions hereof shall be
disclosed to the stockholders of the Corporation and shall be
approved and ratified by a majority of the stockholders of the
Corporation before becoming effective.
EXECUTED at Dallas, Texas this ___ day of _________, 1976.
TEMTEX INDUSTRIES, INC.
ATTEST
By________________________________
____________________________ President
Secretary
_________________________________
Xxxxx X. Upfield
REPUBLIC NATIONAL BANK OF DALLAS,
ATTEST: TRUSTEE
By:______________________________
___________________________ Vice President and Trust Officer
Cashier
