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EXHIBIT 10.31
PREFERRED STOCK REDEMPTION AGREEMENT
THIS PREFERRED STOCK REDEMPTION AGREEMENT (this "Agreement")
is entered into effective as of the 31st day of January, 1997, by and between
Xxxxx Instruments Corp., a California corporation (the "Company"), and Xxxxxxxxx
ESOP Capital Partners, A Minnesota Limited Partnership ("Xxxxxxxxx").
RECITALS
WHEREAS, pursuant to that certain Securities Purchase
Agreement ("Purchase Agreement") dated as of April 23, 1996, between Xxxxxxxxx
and the Company, Xxxxxxxxx purchased from the Company and the Company issued and
sold to Xxxxxxxxx, 1,000 shares of the Company's Series A Preferred Stock (the
"Preferred Shares"); and
WHEREAS, the Company desires to repurchase from Xxxxxxxxx, and
Xxxxxxxxx desires to sell to the Company, the Preferred Shares on the terms and
conditions set forth below; and
WHEREAS, pursuant to Section 7.24 of the Purchase Agreement,
if the Company repurchases the Preferred Shares prior to April 23, 2001, the
Company is obligated to pay an early redemption premium of up to 5% of the
liquidation value of the Preferred Shares ("Early Redemption Premium").
AGREEMENT
In consideration of the foregoing and the representations,
warranties and covenants set forth in this Agreement, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of Shares. Subject to the terms and
conditions set forth in this Agreement, Xxxxxxxxx hereby agrees to sell,
transfer and deliver to the Company, and the Company hereby agrees to purchase,
acquire and accept from Xxxxxxxxx, the Preferred Shares for the Purchase Price
as determined below.
1.2 Purchase Price. The Purchase Price shall be the amount
equal to the sum of (a) $6,000,000 plus (b) all accrued, but unpaid dividends on
the Preferred Shares, through and including the Closing Date (as defined below).
The Purchase Price shall not include the Early Redemption Premium under
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Section 7.4 of the Purchase Agreement and Xxxxxxxxx hereby waives any right to
such payment.
1.3 Closing. The closing of the purchase and sale of the
Purchased Securities (the "Closing") will be effective as of the earlier of (i)
three days after notice (at the location specified in the Purchase Agreement) of
a Closing date is given by the Company to Xxxxxxxxx and (ii) April 14, 1997, or
at such other time, date and place as the parties hereto may agree upon (the
"Closing Date").
1.4 Conditions to Purchase. The Company's obligation to
purchase the Purchased Securities pursuant to this Agreement is expressly
subject to the Company being able to obtain the consent of the Company's
principal lender, Fleet Capital Corporation ("Fleet") to the redemption.
ARTICLE II
DELIVERIES
2.1 Delivery by Xxxxxxxxx. On the Closing Date, Xxxxxxxxx
shall deliver to the Company the following: the stock certificate representing
the Preferred Shares, which certificate shall be either duly endorsed in blank
or accompanied by stock powers duly executed in blank.
2.2 Delivery by the Company. On the Closing Date, the Company
shall deliver to Xxxxxxxxx the following: (i) the Purchase Price in immediately
available funds by wire transfer to an account specified by Xxxxxxxxx; and (ii)
resolutions of the Board of Directors of the Company approving and authorizing
this Agreement and the transactions contemplated hereby, certified as of the
Closing Date by the Company's secretary or assistant secretary as being in full
force and effect without modification or amendment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to Xxxxxxxxx as
follows:
3.1 Authority. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of California,
and the Company has full corporate power and authority to execute and deliver
this Agreement and to perform its obligations under and to consummate the
transactions contemplated by the Agreement, and all corporate action of the
Company necessary for such execution, delivery and performance
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has been or will be duly and validly taken and remains or will remain in full
force and effect. This Agreement has been duly and validly executed and
delivered by the Company.
3.2 Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of the Company enforceable in accordance with its
terms against the Company, except that (i) such enforcement may be limited by
the effect of applicable bankruptcy, reorganization, insolvency, moratorium, or
other laws of general application to or affecting the enforcement of creditors,
rights from time to time in effect; and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
3.3 No Violation. The consummation of the transactions
contemplated by this Agreement and fulfillment of the terms hereof will not
breach any of the terms and provisions of, or constitute a default by the
Company under, any agreement or instrument to which it is a party or by which it
is bound, or any statute, ruling, decree, judgment, order or regulation of any
governmental authority having jurisdiction over the Company or its property; and
no consent (other than the consent of Fleet), approval, authorization or order
of any court or governmental agency or body is required for the consummation by
the Company of the transactions on its part contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF XXXXXXXXX
Xxxxxxxxx hereby represents and warrants to the Company as
follows:
4.1 Title to Shares. Xxxxxxxxx is the owner of the Preferred
Shares. No other person or entity has any right, title, or interest,
beneficially or of record, in or to the Preferred Shares owned by Xxxxxxxxx, and
such Preferred Shares are free and clear of any claims, liens, encumbrances,
security agreements, equities, options, charges, restrictions, or other adverse
interests created or suffered to exist by Xxxxxxxxx, and can be delivered and
surrendered to the Company pursuant hereto without obtaining the consent or
approval of any other person or governmental authority. Upon the transfer and
delivery of such Preferred Shares to the Company in accordance with this
Agreement, the Company will become the owner and holder of all of such Preferred
Shares free and clear of all liens, encumbrances, pledges, claims, charges,
restrictions, and other adverse interest (to the extent that such Preferred
Shares do not revert to unissued shares of the authorized capital of the Company
pursuant to this Agreement).
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4.2 Authority. Xxxxxxxxx is a limited partnership duly formed,
validly existing and in good standing under the laws of the State of Minnesota,
and has full partnership power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated by the Agreement. All partnership action of Xxxxxxxxx
necessary for such execution, delivery and performance has been duly and validly
taken and remains in full force and effect. This Agreement has been duly and
validly executed and delivered by Xxxxxxxxx.
4.3 Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of Xxxxxxxxx enforceable in accordance with its
terms, except that (i) such enforcement may be limited by the effect of
applicable bankruptcy, reorganization, insolvency, moratorium, or other laws of
general application to or affecting the enforcement of creditors, rights from
time to time in effect; and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
4.4 No Violation. The consummation of the transactions
contemplated by this Agreement and fulfillment of the terms hereof will not
breach any of the terms and provisions of, or constitute a default by Xxxxxxxxx
under, any agreement or instrument to which it is a party or by which it is
bound, or any statute, ruling, decree, judgment, order or regulation of any
governmental authority having jurisdiction over Xxxxxxxxx or its property; and
no consent, approval, authorization or order of any court or governmental agency
or body is required for the consummation by Xxxxxxxxx of the transactions on its
part contemplated hereby.
ARTICLE V
GENERAL PROVISIONS
5.1 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
5.2 Governing Law. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the
State of California applicable to agreements made and to be performed wholly
within the State of California.
5.3 Entire Agreement. This Agreement hereto contains all of
the agreements between the parties with respect to the matters contained herein
and supersede all prior written or oral and all contemporaneous oral agreements
or understandings between the parties pertaining to any such matters. No
provision of this
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Agreement may be amended or added to except by an agreement in writing signed by
the parties to this Agreement or their respective successors in interest and
expressly stating that it is an amendment of this Agreement. If Fleet has not
consented to the Company's purchase of the Preferred Shares on the terms
specified herein on or before April 14, 1997, then this Agreement, including the
waiver of the Early Redemption Premium shall thereafter be of no further force
and effect.
5.4 Third Party Rights. The parties do not intend to confer
any benefit hereunder on any person, firm or corporation other than the parties
hereto.
5.5 Further Assurances. The parties agree to do such further
acts and things and to execute and deliver such additional agreements and
instruments as the other may reasonably require to consummate, evidence or
confirm the agreements contained herein in the manner contemplated hereby.
5.6 Assignment. This Agreement and the rights, duties, and
obligations hereunder may not be assigned by any party without the prior written
consent of the other parties, and any attempted assignment is void.
5.7 Successors and Assigns. Subject to Section 5.6 hereof,
this Agreement shall be binding upon each of the parties to it and their
respective permitted successors and assigns.
5.8 Severability. In the event any provision of this Agreement
shall finally be determined to be unlawful, such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect.
5.9 Costs and Expenses. Each Party shall pay the costs and
expenses incurred by it in connection with the entering and the completion of
this Agreement.
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The parties hereto have executed this Agreement as of the day
and year first above written.
"THE COMPANY"
XXXXX INSTRUMENTS CORP., a
California corporation
By: /s/ XXXXX XXXXXXX
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Title:President
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"XXXXXXXXX"
XXXXXXXXX ESOP CAPITAL PARTNERS,
A Minnesota Limited Partnership
By: XXXXXXXXX CAPITAL INVESTMENT
PARTNERS, A Minnesota Limited
Partnership
Its: General Partner
By: XXXXXXXXX CAPITAL, INC.
Its: General Partner
By: /s/ XXXXXX X. XXXXX
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Title: Vice President
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