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EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of November 25, 1996 (the
"Agreement"), is by and among Pure World, Inc., a Delaware corporation
("Seller") and USAA Real Estate Company, a Delaware corporation ("Purchaser").
RECITALS:
WHEREAS, Seller is the beneficial and record owner of 907,000 issued and
outstanding Shares of Beneficial Interest, par value $0.10 per share (the
"Shares"), of American Industrial Properties REIT, a Texas real estate
investment trust (the "Company"); and
WHEREAS, Seller and the Company have been engaged in proxy contests, other
disputes, and a lawsuit styled American Industrial Properties REIT v. Pure
World, Inc., et. al., No. 3:96-CV- 0068-H, in the United States District Court
for the Northern District of Texas (the "Lawsuit"); and
WHEREAS, Seller and the Company have reached an agreement to resolve their
disputes and the Lawsuit (the "Settlement"), and the Company has required as a
condition to the Settlement that Seller sell its Shares to Purchaser for such
consideration and on other terms and conditions as to which Seller and Purchaser
may agree; and
WHEREAS, after arms'-length negotiations between Seller and Purchaser, or
their respective representatives, in which the Company did not participate,
Seller desires to sell to Purchaser and Purchaser desires to receive from Seller
the Shares for the consideration and upon the terms and conditions set forth
herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, Seller and Purchaser agree as follows:
1. Purchase and Sale of Shares.
1.1 Purchase and Sale. Upon the terms and subject to the conditions
contained in this Agreement, Seller shall sell, transfer, assign and deliver to
Purchaser the Shares at the Closing, and Purchaser shall pay and deliver to
Seller the purchase price referred to below in Section 1.2. The Closing shall be
held at the offices of Xxxxxxx & Xxxxx L.L.P., 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxx 00000 at 10:00 a.m., local time, on the third business day
following satisfaction of the conditions to Purchaser's obligations set forth in
Section 5.1.
1.2 Purchase Price. The consideration to be delivered to Seller as
payment for the Shares shall be $2.75 per Share (the "Purchase Price").
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1.3 Delivery of Shares. Seller agrees to deliver to Purchaser at the
Closing the certificate or certificates representing the Shares together with
the duly executed stock power attached hereto as Exhibit A.
1.4 Payment of Purchase Price. Purchaser shall pay the Purchase
Price for the Shares at the Closing to Seller by wire transfer of immediately
available funds to an account designated by Seller.
2. Representations and Warranties of Seller. Seller represents and
warrants to and agrees with Purchaser as follows:
2.1 Authorization of Transaction. Seller has full right, power and
authority (i) to execute and deliver this Agreement, (ii) to sell, assign,
transfer and deliver the Shares to be sold by Seller hereunder, and (iii) to
perform its obligations hereunder. Seller has taken all corporate action, and
has obtained all consents, approvals, authorizations and orders, required for it
to execute, deliver and perform this Agreement. This Agreement constitutes the
valid and legally binding obligation of Seller, enforceable in accordance with
its terms.
2.2 Noncontravention. The execution and delivery of this Agreement,
the sale of the Shares to be sold by Seller hereunder and the consummation of
the transactions contemplated hereby, will not (i) violate any statute,
regulation, injunction, judgment, order, decree, ruling or other restriction of
any government, governmental agency or court having jurisdiction over Seller,
(ii) conflict with, result in a breach or violation of any of the terms or
provisions of or constitute a default under any agreement, contract, lease,
license, instrument or other arrangement to which Seller is a party or by which
Seller or any of its assets is bound, or (iii) result in a violation of the
provisions of the Certificate of Incorporation or Bylaws of Seller. Seller is
not a party to any shareholder, voting trust or similar agreement relating to
the Shares or any agreement which may affect the transfer of the Shares. Except
for this Agreement, there is no option, warrant, call or other right or other
agreement, arrangement or commitment obligating Seller to transfer or sell the
Shares.
2.3 Ownership. Seller holds of record and beneficially owns (as such
term is defined under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, "beneficially owns" or "beneficial ownership")
the Shares, free and clear of any restrictions on transfer, security interests,
options, warrants, purchase rights, equities, claims, liens, encumbrances,
pledges and demands. Seller does not beneficially own any other securities of
the Company or any rights or options to acquire such beneficial ownership, and
none of the Shares were acquired after November 8, 1996.
2.4 Transfer of Title. Upon the delivery of the Shares and payment
therefor pursuant hereto, good and marketable title to such Shares, free and
clear of all adverse claims, liens, encumbrances, equities or other claims, will
pass to Purchaser.
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2.5 Professional and Consulting Fees. Neither the Company (except in
connection with the Settlement) nor Purchaser will directly or indirectly incur
any liability or expense as a result of undertakings or agreements of Seller for
accounting, consulting or legal fees, brokerage or finder's fees or agent's
commissions or other similar forms of compensation in connection with this
Agreement or any agreement or transaction contemplated hereby or thereby.
2.6 Litigation. As of the date hereof, except for the Lawsuit there
are no actions, suits, arbitrations or proceedings pending or, to the best of
Seller's knowledge, threatened, before any court or governmental or regulatory
authority or body to which Seller is or will be a party challenging or affecting
Seller's right or ability to execute or deliver this Agreement or to consummate
the sale of the Shares as contemplated by this Agreement.
2.7 Acknowledgment. Seller acknowledges that (i) the foregoing
representations and warranties shall survive the Closing and (ii) Purchaser is
making no representations or warranties other than those expressly set forth in
Section 3.
3. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller as follows:
3.1 Authorization of Transaction. Purchaser has full right, power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of Purchaser, enforceable in accordance with its terms.
3.2 Noncontravention. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby, will not (i)
violate any statute, regulation, injunction, judgment, order, decree, ruling or
other restriction of any government, governmental agency or court having
jurisdiction over Purchaser, (ii) conflict with, result in a breach or violation
of any of the terms or provisions of, constitute a default under any agreement,
contract, lease, license, instrument, or other arrangement to which Purchaser is
a party or by which Purchaser or any of its assets is bound, or (iii) result in
a violation of the provisions of the organizational documents of Purchaser.
3.3 Sophisticated Purchaser. Purchaser is a sophisticated investor
and has had the opportunity to make such investigation as it deems necessary to
purchase the Shares. Purchaser acknowledges that Seller is making no
representations or warranties other than those expressly set forth in Section 2.
4. Covenants of Seller.
4.1 Standstill Agreement. During the period beginning from the date
hereof and continuing to and including the date that is the earlier of (a) 5
years after the date hereof, (b) such
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time as Purchaser no longer owns at least 2% of the capital stock of the Company
or (c) the date on which either Purchaser or Seller delivers written notice to
the other that the stock purchase contemplated by this Agreement will not be
consummated because of the non-occurrence of a condition precedent to the
obligations of the party giving notice, Seller agrees that neither Seller nor
any affiliate of Seller or nor any entity owned or controlled by them or under
common ownership or control with any of them will (i) acquire, offer to acquire,
or agree to acquire, directly or indirectly, by purchase or otherwise, any
securities or direct or indirect rights or options to acquire (through purchase,
exchange, conversion or otherwise) any securities or properties of the Company,
(ii) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Securities and Exchange Commission) to vote (including by the execution of
actions by written consent) or seek to advise, encourage or influence any person
or entity with respect to the voting of any securities of the Company, (iii)
form, join or in any way participate in any "group" (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any
securities of the Company, (iv) otherwise act, alone or in concert with others,
to seek to control or influence the management, board of trust managers or
policies of the Company, (v) initiate, propose or otherwise solicit stockholders
for the approval of one or more stockholder proposals (as described in the
Securities Exchange Act of 1934) seeking to acquire or affect control of the
Company, or (vi) acquire any interest in any claims, mortgages, notes or any
other legal or financial obligations of the Company.
5. Conditions to Obligations of Purchaser. The obligations of Purchaser to
purchase the Shares at the Closing shall be subject to the satisfaction of the
following conditions unless waived by Purchaser:
5.1 Settlement of Litigation. Any and all claims and litigation
currently pending or subsequently filed prior to the Closing, either in their
own name or in a derivative action, including without limitation the Lawsuit,
among either (i) the Company and the Seller or (ii) the Company and any other
beneficial owner of shares of capital stock of the Company, shall have been
settled and a binding order of the court or such other governmental regulatory
body or agency shall have been entered by December 31, 1996, so that no such
claims shall be pending as of the Closing.
5.2 Compliance by Seller. Purchaser shall be satisfied as to (i) the
accuracy of the representations and warranties of Seller at and as of the
Closing and (ii) the performance by Seller of all its obligations hereunder to
be performed at or prior to the Closing.
6. Conditions to Obligations of Seller. The obligations of Seller to sell
the Shares at the Closing shall be subject to the satisfaction of the following
condition unless waived by Seller:
6.1 Settlement of Litigation. Any and all claims and litigation
between the Company and Seller, including without limitation the Lawsuit, shall
have been settled and a binding order of the court or such other governmental
regulatory body or agency shall have been entered by December 31, 1996, so that
no such claims shall be pending as of the Closing.
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7. Indemnification.
7.1 Indemnification by Seller. Seller shall indemnify and hold
harmless Purchaser and its successors and assigns from and against any losses,
damages or expenses (including reasonable attorney's fees and expenses, such as
expert and accounting fees, and interest accrued on all such indemnified
amounts, computed at ten percent per annum) which are caused by or arise out of
(a) any breach or default in the performance by Seller of any covenant or
agreement of Seller contained in this Agreement, (b) any breach of warranty by
Seller or inaccurate or erroneous representation made by such Seller herein or
in any other instrument delivered by or on behalf of such Seller pursuant hereto
or (c) any and all actions, suits, proceedings, claims, demands or judgments
incident to or alleged to be incident to any of the foregoing.
7.2 Indemnification by Purchaser. Purchaser shall indemnify and hold
harmless the Seller and its successors and assigns from and against any losses,
damages or expenses (including reasonable attorney's fees and expenses, such as
expert and accounting fees, and interest accrued on all such indemnified
amounts, computed at ten percent per annum) caused by or arising out of (a) any
breach or default in the performance by Purchaser of any covenant or agreement
of Purchaser contained in this Agreement, (b) any breach of warranty by
Purchaser or inaccurate or erroneous representation made by Purchaser herein or
in any other instrument delivered by or on behalf of Purchaser pursuant hereto
or (c) any and all actions, suits, proceedings, claims, demands or judgments
incident to or alleged to be incident to any of the foregoing.
7.3 Procedure. In the event that, from and after the Closing, a
third party asserts any claim against Purchaser or Seller, as the case may be,
with respect to any matter which is covered by the indemnities contained in this
Agreement, the party against whom the claim is asserted (the "Indemnitee"),
shall give prompt written notice to the other party (the "Indemnitor"), and the
Indemnitor shall have the right, at its election, to take over the defense or
settlement of such claim at its own expense by giving prompt written notice to
the Indemnitee; provided, however, that (a) the Indemnitee shall at all times
have the right, at its option and expense, to participate fully therein and (b)
if the Indemnitor does not give such notice and does not proceed diligently to
defend the claim within 30 days after receipt of such notice of the claim, the
Indemnitee shall have the right, but not the obligation, to undertake the
defense of any such claim for the account of and at the risk of the Indemnitor
and the Indemnitor shall be bound by any defense or settlement that the
Indemnitee, may make as to such claim. The parties shall cooperate in defending
any such third party's claim, and the defending party shall have reasonable
access to the books and records and personnel in the possession or control of
the other party that are pertinent to the defense. The parties agree that the
Indemnitee may join the Indemnitor in any action, claim or proceeding brought by
a third party, as to which any right of indemnity granted to the Indemnitee
pursuant to this Agreement would or might apply, for the purpose of enforcing
such right of indemnity.
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8. Miscellaneous.
8.1 Notices. All notices or other communications given or made
hereunder shall be in writing and shall be deemed to be duly given when received
if delivered in person or by telex, facsimile, telegram or cable or mailed by
registered or certified mail, return receipt requested, postage prepaid to any
party at the address and to the addressee for such party set forth on the
signature page of this Agreement or such other address or addressee as the party
to whom notice is to be given furnishes in writing to the other party in the
manner set forth above.
8.2 Entire Agreement. This Agreement, including the Exhibits hereto,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings, oral or written, between the parties hereto with respect to
such transactions.
8.3 Governing Law. This Agreement shall be construed in accordance
with and governed by the internal laws (and not the law of conflicts) of the
State of Texas applicable to contracts made and performed in the State of Texas.
8.4 Headings. The section, paragraph and other headings contained in
this Agreement are for reference purposes only and shall not be deemed to be a
part of this Agreement or to affect the meaning or interpretation of this
Agreement.
8.5 Assignment. Neither this Agreement nor any interest herein or
right or obligation hereunder may be assigned by Purchaser or Seller in any
manner, by operation of law or otherwise, without the prior written consent of
the other party hereto except that Purchaser may assign this Agreement without
Seller's consent to any person (except the Company) which is wholly owned or
controlled, directly or indirectly, by Purchaser, if that person agrees in
writing to be bound by all of Purchaser's obligations hereunder; provided,
however, that no assignment of any kind shall release Purchaser from any
liabilities or obligations hereunder.
8.6 Successors Bound. Subject to the provisions of Section 8.5, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
8.7 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or the application
thereof to any person or under any circumstances, shall be invalid or
unenforceable to any extent under applicable law, and the extent of such
invalidity or unenforceability does not destroy the basis for the bargain
between the parties as expressed herein, then such provision shall be deemed
severed from this Agreement with respect to such person or such circumstance,
without invalidating the remainder of this Agreement or the application of such
provision to other persons or circumstances, and a new provision shall be
automatically substituted
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in lieu of the provision so severed which new provision shall be as similar in
terms to the invalid or unenforceable provision as may be possible.
8.8 Remedies. Seller acknowledges that Purchaser would not have an
adequate remedy at law for money damages in the event that Section 4.1 were not
performed in accordance with its terms and therefore agree that Purchaser shall
be entitled to specific enforcement of, and injunctive relief to prevent any
violation of, Section 4.1 hereof, in addition to any other remedy or relief
available at law or in equity.
8.9 Expenses. Seller and Buyer shall each pay their own expenses
(including, without limitation, counsel and accounting fees and expenses)
incident to the preparation and carrying out of this Agreement and the sale of
the Shares contemplated hereby.
8.10 Amendment. This Agreement may be amended only by an instrument
in writing executed by all the parties hereto.
8.11 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the date first above written.
PURCHASER SELLER
USAA Real Estate Company Pure World, Inc.
By:________________________________ By:_____________________________
Name: T. Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Senior Vice President - Operations Title: Chairman
Address: 8000 Xxxxxx X. XxXxxxxxx Freeway Address: X.X. Xxx 00,
XX-00 Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000
Xxx Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto ____________________, the Shares of Beneficial Interest, par
value $0.10 per share, of American Industrial Properties REIT (the "Company")
represented by Certificate No. ___ registered on the books of said Company, and
does hereby irrevocably constitute and appoint ________________________ as
attorney to transfer the foregoing on the books of said Company, with full power
of substitution in the premises, hereby ratifying and confirming all that said
attorney shall lawfully do by virtue hereof. Dated: _________________, 1996.
__________________________________*
Witness:
By:________________________________
________________________________ Name:
Title:
* The signature to this assignment must correspond with the name as written
on the face of the certificate in every particular without alteration or
enlargement or any change whatever.
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