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EXHIBIT 5
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") dated as of September 28,
1997, by and between Graphic Industries, Inc., a Georgia corporation ("Seller")
and Xxxxxx X. Xxxx, an individual resident of the State of Georgia
("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is herewith entering into an Agreement and Plan of Merger
among Seller, Xxxxxxx Computer Services, Inc., a Delaware corporation
("Parent"), Greenwich Acquisition Company, Inc., a Georgia corporation and a
wholly owned subsidiary of Parent ("Sub") (the "Merger Agreement"), pursuant to
which Seller will be acquired by Parent by means of a tender offer to be made
by Sub for all of the issued and outstanding shares of Common Stock of Seller,
followed, to the extent necessary, by a merger of Seller with Sub; and
WHEREAS, Parent has advised Seller that the businesses conducted by
Atlanta Blue Print Co., a Georgia corporation and a wholly owned subsidiary of
Seller, and by Imaging Technologies Services, Inc., a Georgia corporation and a
wholly owned subsidiary of Seller (collectively, the "Companies"), are not
consistent with the long term strategic objectives of Parent as they relate to
the acquisition of Seller by Parent; and
WHEREAS, Seller wishes to sell to Purchaser and Purchaser wishes to
purchase from Seller all of the issued and outstanding common stock of each of
the Companies upon the terms and conditions herein:
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
Section 1.1 Agreement to Sell. At the Closing (as defined herein),
Seller shall grant, sell, convey, assign, transfer and deliver to
Purchaser, upon and subject to the terms and conditions of this Agreement, all
of the issued and outstanding shares of common stock (collectively, the
"Shares") of each of the Companies, free and clear of all mortgages, liens,
pledges, security interests, charges, claims, restrictions and encumbrances of
any nature whatsoever.
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Section 1.2 Agreement to Purchase. At the Closing, Purchaser shall
purchase the Shares from Seller, upon and subject to the terms and conditions
of this Agreement, in exchange for the Purchase Price (as defined herein).
Section 1.3 The Purchase Price. The purchase price to be paid to Seller
by Purchaser for the Shares (the "Purchase Price") shall be Seven Million
Sixty-Five Thousand One Hundred Seventy-Three Dollars ($7,065,173).
Section 1.4 Payment of the Purchase Price. Purchaser shall pay the
Purchase Price to Seller for the Shares in cash at the Closing.
ARTICLE 2
CLOSING
Section 2.1 Closing. The closing (the "Closing") of the purchase and sale
of the Shares shall take place immediately following the Acceptance for Payment
(as defined herein) at the offices of Powell, Goldstein, Xxxxxx, & Xxxxxx LLP,
Xxxxxxxxx Xxxxx, 000xXxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000, or such
other date and time as mutually agreed upon by Purchaser and Seller.
Section 2.2 Items to be Delivered by Purchaser. At the Closing and
subject to the terms and conditions herein, Purchaser shall pay to Seller the
Purchase Price set forth in Articlea1 by certified or official bank check or by
wire transfer in immediately available funds to the account of Seller.
Section 2.3 Items to be Delivered by Seller. At the Closing and subject
to the terms and conditions contained herein, Seller shall deliver to Purchaser
stock certificates evidencing the Shares duly endorsed for transfer into the
name of Purchaser.
ARTICLE 3
REPRESENTATIONS , WARRANTIES AND COVENANTS OF SELLER
Section 3.1 Representations and Warranties. Seller represents and
warrants to Purchaser as follows:
(a) Corporate Organization and Good Standing. Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the state of its incorporation.
(b) Authorization. Seller has all requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery, and performance of this
Agreement by Seller, and the consummation by
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Seller of the transactions contemplated hereby, have been duly authorized, and
no other corporate action or proceeding is necessary for the execution,
delivery, and performance of this Agreement by Seller and the consummation of
the transactions contemplated hereby.
(c) Binding Agreement. This Agreement has been duly and
validly executed and delivered by Seller and is a legal, valid, and
binding obligation of Seller, enforceable against it in accordance with its
terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by an implied covenant of good faith and fair dealing.
(d) Ownership, Etc. of the Shares. Seller is the record and
beneficial owner of the Shares and upon release by NationsBank, N.A.,
as collateral agent, of its security interest therein, delivery of the
certificates therefor as contemplated herein will transfer good and valid title
to the shares, free and clear of all mortgages, liens, pledges, security
interests, charges, claims, restrictions and encumbrances of any nature
whatsoever. The Shares constitute all of the issued and outstanding capital
stock of the Companies. Prior to the Closing, Seller will obtain from
NationsBank, N.A. a release of its security interest in the Shares.
Section 3.2 Release from Guaranty; Transfer of Real Property. Prior to
the Closing, (i) Seller shall obtain a release of the Companies from their
respective obligations under the Amended and Restated Guaranty dated as of July
15, 1997 in favor of NationsBank, N.A., in its capacity as agent, and in favor
of the Lenders described therein and (ii) will convey to Purchaser, free and
clear of all liens and encumbrances, the real property and improvements thereon
occupied by the Companies and located at 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx,
including the adjacent parking lot.
Section 3.3 Operation of the Companies' Pending Closing. Between now and
the Closing, Seller shall cause the corporate existence of each of the
Companies to be maintained and shall not permit the declaration or payment of
any dividends on or other distributions in respect of its capital stock or a
split, combination or reclassification of their capital stock or the issuance
or authorization or proposed issuance of any other securities of the Companies
or the repurchase, redemptions, or acquisition of any of their capital stock.
All indebtedness of the Companies for money borrowed and all intercompany loans
to the Companies shall be assumed by or transferred to Seller at or prior to
the Closing, and no such indebtedness of the Companies shall be assumed by
Purchaser. Seller shall not permit either of the Companies to incur any
obligation or commitment, except in the ordinary course of business or with the
consent of the Purchaser, prior to the Closing.
Section 3.4 Cooperation with Purchaser. Seller agrees to cooperate with
Purchaser insofar as reasonably requested by Purchaser and to furnish such
information in Seller's possession concerning the business, operations and
financial condition of each of the Companies to any lender or proposed lender
to Purchaser in order that Purchaser may obtain financing for
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the purchase of the Shares, provided that any such information or documents
furnished to a lender or prospective lender shall be furnished under the terms
of a confidentiality agreement reasonably acceptable to Seller and each of the
Companies.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Purchaser represents and warrants, and agrees with, to Seller as follows:
Section 4.1 Binding Agreement. This Agreement has been duly and validly
executed and delivered by Purchaser and is a legal, valid, and binding
obligation of Purchaser, enforceable against him in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
or by an implied covenant of good faith and fair dealing.
Section 4.2 Purchase of the Companies on an As-Is, Where-Is Basis.
Purchaser agrees that he is purchasing the Shares without the benefit of any
representations or warranties of the Seller other than those contained herein
and that the acquisition of the Companies pursuant to this Agreement is made on
an "as-is, where-is" basis. Purchaser acknowledges that, as the President and
Chief Executive Officer of each of the Companies, he is familiar with the
business, operations, financial condition and prospects of each of the
Companies and that he has all information regarding the Companies necessary for
him to make an informed business decision regarding the purchase of the Shares.
Section 4.3 Acquisition of Shares for Investment. Purchaser is acquiring
the Shares for investment only and not with a view to resale or distribution
thereof. Purchaser will not sell or otherwise dispose of the Shares in
violation of applicable Federal and state securities laws.
ARTICLE 5
CONDITIONS TO CLOSE
Section 5.1 Tender Offer. The respective obligation of each party hereto
to consummate the transaction contemplated hereby shall be subject to the
satisfaction (or waiver by each party) at or prior to the Closing of the
condition that Parent shall have completed its tender offer for the issued and
outstanding shares of Common Stock of Seller and accepted for payment
("Acceptance for Payment") shares of Common Stock of Seller pursuant to such
tender offer.
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ARTICLE 6
GENERAL PROVISIONS
Section 6.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Seller, to:
Graphic Industries, Inc.
0000 Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: President
(b) If to Purchaser, to:
Xxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Section 6.2 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 6.3 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.4 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
Section 6.5 Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Georgia (without giving effect to the provisions thereof relating to
conflicts of the law).
Section 6.6 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
Section 6.7 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interest, or obligations hereunder shall be assigned by any
party hereto without the prior written consent of the other
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party, except that Purchaser may assign this Agreement to a corporation of
which he owns a majority of the issued and outstanding stock.
Section 6.8 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
signed as of the date first written above.
PURCHASER:
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
SELLER:
Graphic Industries, Inc.
By: /s/ Xxxx X. Xxxx III
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Name: Xxxx X. Xxxx III
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Title: Chairman and Chief
Executive Officer
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