EXHIBIT 10.2
EXECUTION COPY
STOCK PURCHASE AGREEMENT
by and between
LDN STUYVIE PARTNERSHIP
and
TEXAS ADDISON LIMITED PARTNERSHIP
dated as of
January 8, 2003
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of January 8,
2003, is by and between LDN Stuyvie Partnership, an Oklahoma limited partnership
(the "Buyer"), and Texas Addison Limited Partnership, a Texas limited
partnership (the "Seller").
RECITALS:
A. The Seller is the record and beneficial owner of 16,680,000
shares of common stock, par value $.01 per share (the "Common Stock"), of X.
X. Xxxxxx Corporation, a Delaware corporation (the "Company").
B. The Buyer desires to purchase from the Seller and the Seller desires to
sell to the Buyer the 4,170,000 shares of Common Stock (the "Shares") pursuant
to the terms and conditions hereof.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
hereof, the Seller hereby sells, and the Buyer hereby purchases, the Shares.
2. PAYMENT OF PURCHASE PRICE. The purchase price shall be $0.2676 in cash
per Share, or an aggregate of $1,116,000 (such aggregate price being referred to
herein as the "Purchase Price"). Concurrently with the execution of this
Agreement, the Buyer shall pay the Purchase Price by means of wire transfer or
official bank check payable to the order of the Seller.
3. ACTIONS BY THE SELLER. The Seller shall arrange with the Company's
transfer agent for the issuance and delivery of a stock certificate representing
the Shares.
4. REPRESENTATIONS AND WARRANTIES.
(a) The Seller hereby represents and warrants to the Buyer that:
(i) The Seller has the capacity to enter into this Agreement
and to sell, assign, transfer and deliver to the Buyer, pursuant to
the terms and conditions of this Agreement, the Shares;
(ii) Except for this Agreement, there are no outstanding
options, warrants or rights to purchase or acquire, or agreements
(whether voting or otherwise) relating to, the Shares;
(iii) Except as set forth on Schedule 4(a)(iii) attached
hereto, the Shares are the only shares of capital stock of the Buyer
owned of record or beneficially by the Seller, and the Seller owns
no options or other rights to acquire any capital stock of the
Buyer;
(iv) The Seller owns of record and beneficially all of the
Shares, free and clear of all liens, claims, encumbrances and
security interests of any nature whatsoever. Upon purchase of the
Shares pursuant to this Agreement, the Buyer shall receive good and
marketable title to the Shares, free and clear of all liens, claims,
encumbrances and security interests of any nature whatsoever;
(v) The execution and delivery of this Agreement by the Seller
does not, and the performance by the Seller of the transactions
contemplated hereby will not, (A) violate, conflict with or result
in the violation or breach of, or constitute a default under, the
terms, conditions or provisions of any agreement to which the Seller
is a party, (B) violate any order, writ, judgment, injunction,
decree, statute, rule or regulation of any court or federal, state
or local administrative agency or commission or other governmental
authority or instrumentality (a "Governmental Entity") applicable to
the Seller or (C) require the consent, approval, order or
authorization of, registration, declaration or filing with, or
notice to, any Governmental Entity or third party;
(vi) This Agreement is a legal, valid and binding agreement of
the Seller enforceable against the Seller in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors'
rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be
brought; and
(b) The Buyer hereby represents and warrants to the Seller that:
(i) The Buyer has the capacity to enter into this Agreement
and to buy the Shares from the Seller pursuant to the terms and
conditions of this Agreement, and will not sell, offer to sell or
otherwise dispose of any of the Shares in violation of the
Securities Act of 1933;
(ii) The execution and delivery of this Agreement by the Buyer
does not, and the performance by the Buyer of the transactions
contemplated hereby will not, (A) violate, conflict with or result
in the violation or breach of, or constitute a default under, the
terms, conditions or provisions of any agreement to which the Buyer
is a party, (B) violate any order write, judgment, injunction,
decree, statute, rule or regulation of any Governmental Entity,
applicable to the Buyer or (C) require the consent, approval, order
or authorization of, registration, declaration or filing with, or
notice to, any Governmental Entity or third party; and
(iii) This Agreement is a legal, valid and binding agreement
of the Buyer enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
2
5. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
on the second business day after such notice or communication has been sent by
registered or certified mail, postage prepaid, with return receipt requested, as
follows:
If to the Seller, to:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
If to the Buyer, to:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
6. CONDITIONS TO CLOSING. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Closing occur until the sale and purchase
of the Shares pursuant to this Agreement have been approved by the Company's
board of directors in accordance with Article Fifth of the Company's Amended and
Restated Certificate of Incorporation.
7. WAIVER AND AMENDMENT. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits thereof, and this
Agreement may be amended or supplemented at any time by the written consent of
the parties hereto.
8. ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto, whether by
operation of law or otherwise.
9. NO PRIOR AGREEMENTS. This Agreement (a) contains the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, between the parties hereto with respect to the subject matter hereof, and
(b) is not intended to confer upon any other person any rights or remedies
hereunder.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by and against the parties hereto and their
successors (including administrators and executors of individuals) and assigns.
11. REMEDIES. The Seller acknowledges and agrees that the Buyer would be
irreparably damaged in the event that any of the provisions of this Agreement to
be performed by the Seller were not performed by it in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
Buyer shall be entitled to an injunction or injunctions to redress any breaches
of this Agreement and to specifically enforce the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
having jurisdiction, in addition to any other remedy to which the Buyer may be
entitled at law or in equity. In the event litigation shall be necessary to
enforce, interpret or rescind the provisions of this Agreement, the prevailing
party shall
3
be entitled to recover from the other party, in addition to other relief, the
prevailing party's reasonable attorneys' fees for services before trial, at
trial and on any appeal therefrom.
12. EXPENSES. Except as set forth in Section 11, each of the parties shall
pay its own expenses in connection with the negotiation, execution and
performance of the Agreement. No party has incurred any broker's or finder's fee
in connection with this Agreement that the other party will be obligated to pay.
13. COUNTERPARTS. This Agreement and any amendments hereto may be executed
in two or more counterparts, each of which shall be considered to be an
original, but all of which together shall constitute the same instrument.
14. PREPARATION AND INTERPRETATION. Each party hereto acknowledges and
agrees that (i) such party has caused this Agreement to be drafted by Xxxxxx &
Xxxxxx L.L.P., counsel to the Company, and that such law firm has not drafted
the Agreement with the interest of either party in mind, (ii) Xxxxxx & Xxxxxx
L.L.P. does not represent either party to this Agreement with respect to the
transactions contemplated hereby, (iii) such party is, or is controlled by, a
person sophisticated and knowledgeable in matters of the sort raised by this
Agreement, (iv) such party has, or is controlled by an individual who has,
graduated from an accredited law school in the United States of America and that
such law-school graduate either currently is, or has been in the past, licensed
to practice law in one or more jurisdictions in the United States and (v) is
either representing himself or itself with respect to the negotiation of this
Agreement or has hired counsel other than Xxxxxx & Xxxxxx L.L.P. to do so on his
or its behalf.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflict of laws doctrine. The parties hereto consent to being subject to the
jurisdiction of any federal or state court located in the State of Delaware.
16. SEVERABILITY. If any term, provision or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, that if Section 14 of
this Agreement is held to be invalid, void or unenforceable, the entire
Agreement shall be null and void.
17. EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the meaning or interpretation of this Agreement.
18. SURVIVAL. All representations, warranties, covenants and other
agreements and assignments of the parties hereto shall survive the Closing.
19. PUBLIC STATEMENT. Each party agrees that it will make no press release
or other public statement or announcement of the terms of this Agreement or
other matters, past, present, or future, relating to the Buyer's or the Seller's
dealings with the Buyer; provided, however, that nothing contained herein shall
prohibit any party from disclosing the terms of this Agreement or such other
matters if required by law, rule or regulation.
4
IN WITNESS WHEREOF, the parties have executed this Agreement to as of the
date set forth above.
SELLER:
TEXAS ADDISON LIMITED PARTNERSHIP
By: Texas Barrington LLC, its general
partner
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: President
BUYER:
LDN STUYVIE PARTNERSHIP
By: /s/ Xxxxxxx X. Comfort, III
--------------------------------
Name: Xxxxxxx X. Comfort, III,
Title: General Partner
5
Schedule 4(a)(iii)
In addition to the Shares, the Seller is the record and beneficial owner
of 12,510,000 shares of the Company's common stock, par value $.01 per share.
A-1
