Exhibit 10.2
Stock purchase agreement dated June 9, 1995 between the
Company and Renaissance Capital Growth & Income Fund III, Inc.
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of June 9, 1995, is
entered into by and between The Xxxxx Group, Inc. (the "Company") and
Renaissance Capital Growth & Income Fund III, Inc., a Texas corporation
(together with any assignees or successors in interest, individually or
collectively as the context may appear, referred to as the "Investor").
NOW THEREFORE, in consideration of the mutual promises herein contained and for
other valuable consideration, receipt and sufficiency of which is
acknowledged, the parties hereto agree as follows:
1. Sale and Purchase of Common Stock.
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Upon the terms and subject to the conditions herein contained, in
reliance on the representations and warranties of the Company contained herein,
the Investor agrees to purchase from the Company, and in reliance on the
representations and warranties of the Investor contained herein, the Company
agrees to sell to the Investor at the Closing (as hereinafter defined) on the
Closing Date (as hereinafter defined), 70,000 shares ("Shares") of common stock
$0.10 par value of the Company at $3.50 per share for an aggregate consideration
of $245,000 ("Purchase Price").
2. General Provisions.
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2.01 Closing
The closing of the sale to and purchase by the Investor of the Common
Stock (the "Closing") shall occur at the offices of Renaissance Capital Group,
Inc., 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, at the hour of
eleven o'clock A.M., on June 9, 1995 or at such different time or day or at
such other place as the Investor and the Company shall agree (the "Closing
Date"). At the Closing, the Company shall deliver to Renaissance a certificate
or certificates evidencing the Shares which shall be registered and styled River
Oaks Trust Company, FBO Renaissance Capital Growth & Income Fund III, Inc.,
against delivery to the Company of payment by check from the River Oaks Trust
Company.
2.02 Placement Fee
The Company shall be responsible for payment of any placement fees and
commissions, brokerage fees or finders fees in connection with the sale. The
Company and the Investor each represent and acknowledge, to the best of their
respective knowledge, that no placement fees or commissions brokerage fees or
finder fees are due or payable with respect to the sale of the Shares by the
Company or the purchase of the Shares by the Investor.
3. Representations and Warranties by the Company
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In order to induce the Investor to enter into this Agreement and to
purchase the Shares, the Company hereby covenants with, and represents and
warrants to the Investor as follows:
3.01 Ownership of Securities.
The Company is currently holds 192,425 shares of Common Stock as
treasury stock representing 2.7% of the Company's outstanding Common Stock. The
Shares are free from all encumbrances and liens and are not subject to any
restrictions other than under federal or state securities laws (except as
disclosed below) and the Shares are not subject to any voting restrictions or
trusts.
3.02 Organization and Qualification.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
authority and power (corporate and other), governmental licenses,
authorizations, consents and approvals to carry on its business as presently
conducted and as contemplated to be conducted, to own, hold and operate its
properties and assets as now owned, held and operated by it, to enter into this
Agreement, to sell the Shares to the investor and to carry out the provisions
hereof.
3.03 Authorization.
The execution, delivery and performance by the Company of this
Agreement and all related documents, and the offer, sale, issuance and delivery
of the Shares pursuant hereto, are within the Company's legal authority, require
no authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality of government, except for post-sale filings
with the SEC and the appropriate state securities regulatory agency.
3.04 Binding Obligations.
This Agreement and the related documents constitute the legal, valid and
binding obligations of the Company and are enforceable against the Company in
accordance with their respective terms.
3.05 Securities Laws.
The offer, issuance and sale of the Shares are and will be (i) exempt
from the registration and prospectus delivery requirements of the Securities Act
of 1933 (the "Securities Act"), (ii) have been registered or qualified (or are
exempt from registration and qualification) under the registration, permit or
qualification requirements of all applicable state securities laws and (iii)
accomplished in conformity with all other federal and applicable state
securities laws, rules and regulations.
3.06 Litigation.
Except as may be disclosed on Schedule 3.06 attached hereto, there is no
legal action, suit, arbitration or other legal, administrative or other
governmental investigation, inquiry or proceeding (whether federal, state, local
or foreign) pending or threatened against or affecting the Company. The
Company is not subject to any order, writ, judgment, injunction, decree,
determination or award of any court or of any governmental agency or
instrumentality (whether federal, state, local or foreign).
3.07 Disclosure
No representation or warranty contained in this Agreement or information
appearing in any writing furnished by the Company to the Investor or their
representatives pursuant hereto or in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading. The Company is not in
possession of any material, nonpublic information regarding the Company which
has not been disclosed to the Investor.
3.08 Survival of Representations and Warranties.
All representations and warranties by the Company herein shall survive
the Closing and any investigation at any time made by or on behalf of Investor
shall not diminish Investor's right to rely on the Company's representations and
warranties as herein set forth.
4. Representations and Warranties of Investor.
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In order to induce the Company to enter into this Agreement and to sell
the Shares, the Investor hereby covenants with the Company, and represents and
warrants to the Company as follows:
4.01 Restrictions on Transfer
The Investor understands and agrees that the Shares have not been
registered under the Securities Act and that accordingly they will not be fully
transferable except as permitted under various exemptions contained in the
Securities Act, or upon satisfaction of the registration and prospectus delivery
requirements of the Securities Act, and in compliance with applicable state
securities laws. The Investor acknowledges that it must bear the economic risk
of its investment in the Shares for an indefinite period of time since they have
not been registered under the Securities Act and therefore cannot be sold unless
they are subsequently registered or an exemption from registration is available.
4.01A Investment Representations
(a) The Investor hereby represents and warrants to the Company
that it is acquiring the Shares for investment purposes only, for its own
account, and not as nominee or agent for any other Person, and not with a view
to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act. The Investor represents and warrants that it has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of its investment.
(b) The Investor has performed such due diligence regarding the
Company and the Shares as to enable it to make an informed investment decision
with respect to the Shares.
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(c) The Investor has carefully reviewed and understands the risks of,
and other consideration relating to, a purchase of the Shares. The Investor has
determined that the purchase of the Shares is consistent with the Investor's
investment objective.
4.02 Legend
The Investor understands and agrees that each certificate issued in this
transaction will bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE
SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT OR LAWS COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY (WHICH MAY BE COUNSEL FOR THE COMPANY) STATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SUCH ACT AND LAWS."
4.03 Accredited Investor.
The Investor is an "Accredited Investor" within the meaning of Rule 501 of
the Securities Act.
4.04 Authorization; Binding Obligations
The execution, delivery and performance of this Agreement and all other
related documents to which the Investor is party have been duly authorized by
the Investor and this Agreement and the related documents constitute legal,
valid binding obligations of the Investor enforceable against the Investor in
accordance with their respective terms.
4.05 Survival of Representations and Warranties.
All representations and warranties by the Investor herein shall survive the
Closing and any investigation at any time made by or on behalf of Company shall
not diminish the Company's right to rely on the Investor's representations and
warranties as herein set forth.
5. Affirmative Covenants.
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The Company agrees that so long as the Investor is the holder of Shares or
shares purchased pursuant to the Stock Purchase Agreement by the between the
Estate of Xxxxxx X. Xxxxx and Renaissance Capital Growth & Income Fund III, Inc.
dated June 9, 1995, the Company will do the following:
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5.01 Registration of Securities.
Register shares of restricted Common Stock held by the Investor pursuant to
the Registration Rights Agreement by and between the Company and the Investor
dated June 9, 1995.
5.02 Removal of Transfer Restrictions.
Any legend endorsed on the shares and the stop transfer instructions and
record notations with respect thereto shall be removed and the Company shall
issue a certificate without such legend to the holder thereof at such time as
the securities evidenced thereby cease to be restricted from transfer in
accordance with the provisions of the Securities Act.
6. Enforcement.
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6.01 Remedies at Law or in Equity.
If any default shall occur or if any representation or warranty made by the
Company or the Investor (in either case the defaulting party) in this Agreement
or other document delivered under or pursuant to any term hereof shall be untrue
or misleading in any material respect as of the date of this Agreement or as of
the Closing Date or as of the date it was made, furnished or delivered, the
non-defaulting party may proceed to protect and enforce its rights by suit in
equity or action at law.
In the event the non-defaulting party brings such an action against the
defaulting party, the prevailing party in such dispute shall be entitled to
recover from the losing party all fees, costs and expenses of enforcing any
right of such prevailing party under or with respect to this Agreement,
including without limitation such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and
expenses of appeals.
6.02 Cumulative Remedies.
None of the rights, powers or remedies conferred upon any party to this
Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to every other rights, power or remedy,
whether conferred hereby or hereafter available at law, in equity, by statute or
otherwise.
7. Miscellaneous.
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7.01 Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, mailed by
certified mail (return receipt requested) or sent by overnight delivery service,
cable, telegram, facsimile transmission or telex to the parties at the following
addresses or as such other addresses as shall be specified by the parties by
like notice:
(a) if to the Company:
The Xxxxx Group, Inc.
Attn: President
0000 X. Xxxxxxxxxx Xxxxx Dr.
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X.X. Xxx 0000
Xxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxx X. Xxxx, Esq.
Gardere & Xxxxx, L.L.P.
3000 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Investor:
Renaissance Capital Growth & Income Fund III, Inc.
c/o Renaissance Capital Group, Inc.
Attn.: Xxxxxxx Xxxxxxxxx, President
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Notice so given shall, in the case of notice so given by mail, be deemed to
be given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
7.02 Severability.
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable under any applicable law, then such illegality, invalidity or
unenforceability shall not invalidate the entire Agreement. Such provision shall
be deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification shall render it legal, valid and
enforceable, then this Agreement shall be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.
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7.03 Parties in Interest.
All the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, whether so expressed or not. This Agreement shall
not run to the benefit of or be enforceable by any Person other than a party to
this Agreement and its successors and assigns.
7.04 CHOICE OF LAW; VENUE
THIS AGREEMENT WILL BE GOVERNED BY THE LAW OF TEXAS. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT AND THE OBLIGATIONS AND UNDERTAKINGS
OF THE PARTIES HEREUNDER WILL BE PERFORMABLE IN DALLAS, TEXAS. IF ANY ACTION IS
BROUGHT TO ENFORCE OR INTERPRET THIS AGREEMENT, VENUE FOR SUCH ACTION SHALL BE
IN DALLAS, TEXAS.
7.05 Complete Agreement.
This Agreement, those documents expressly referred to herein and other
documents of even date herewith embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
IN WITNESS WHEREOF, the Company and the Investor have caused this Agreement
to be executed as of the date first written above.
THE XXXXX GROUP, INC.
By: (Signature Appears Here)
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Its
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
President
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