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EXHIBIT D
STOCK PURCHASE AND
OPTION EXERCISE AGREEMENT
-------------------------
This Stock Purchase and Option Exercise Agreement (this "Agreement")
is dated as of December 30, 1996 and is made by and between BankAmerica Capital
Corporation, a Delaware corporation and successor to Continental Illinois Equity
Corporation ("BACC"), and ELX Limited Partnership, a Delaware limited
partnership (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Stock and Note Purchase
Agreement dated as of January 23, 1990 (the "Stock and Note Purchase Agreement")
by and among The Airlie Group L.P., a Delaware limited partnership ("Airlie"),
Xxxxxx & Company, a Delaware corporation ("Xxxxxx"), ELXSI Corporation, a
Delaware corporation ("ELXSI"), and BACC, BACC purchased from Airlie 5,510,000
shares of ELXSI's Common Stock, $.001 par value per share (the "Shares");
WHEREAS, ELXSI affected a 25 to 1 reverse stock split in May, 1992,
thereby reducing the Shares to 220,400;
WHEREAS, pursuant to the terms of that certain Option Agreement dated
as of January 23, 1990 (the "Option Agreement") between BACC and the Company,
BACC granted to the Company an option to purchase from BACC 110,200 shares
(after giving effect to the reverse stock split mentioned above) of ELXSI's
Common Stock, $.001 par value per share (the "Option Shares"), at a purchase
price of $3.125 per share (after giving effect to the reverse stock split
mentioned above);
WHEREAS, the Company desires to exercise the Option and purchase from
BACC the Option Shares on the terms and conditions set forth herein; and
WHEREAS, the Company desires to purchase from BACC and BACC desires to
sell to the Company the remaining 110,200 Shares owned by BACC on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the respective meanings given to such terms in the Option Agreement.
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2. Extension of Option Period. The Company and BACC hereby agree
that the termination date of the Option as set forth in Section 1 of the Option
Agreement is hereby amended to be "December 31, 1996".
3. Option Exercise; Purchase of Option Shares. The Company hereby
exercises the Option and agrees to pay to BACC on the date of this Agreement in
immediately available funds by wire transfer to an account specified by BACC in
writing the aggregate exercise price of Three Hundred Forty-Four Thousand Three
Hundred Seventy- Five Dollars ($344,375.00) (the "Option Exercise Price"). BACC
agrees to deliver the certificate evidencing the Option Shares to the Company
within 5 business days from the date hereof, together with such instruments of
transfer as the Company may reasonably request.
4. Purchase of 110,200 Shares. The Company agrees to pay BACC on the
date of this Agreement in immediately available funds by wire transfer to an
account specified in writing by BACC the amount of Five Hundred Sixty-Four
Thousand Seven Hundred Seventy-Five Dollars ($564,775.00) (the "Purchase
Price"). BACC agrees to deliver the certificate evidencing the 110,200 Shares to
the Company within 5 business days from the date hereof, together with such
instruments of transfer as the Company may reasonably request.
5. (a) Representations and Warranties of the Company. As a material
inducement to the execution by BACC of this Agreement, the Company hereby
represents and warrants to BACC as follows:
(i) The Company has all requisite power and authority
(partnership and otherwise) to execute, deliver and perform its
obligations under this Agreement.
(ii) The execution, delivery and performance by the
Company of this Agreement does not and will not (i) violate any
provisions of any law, rule, regulation, order, writ, judgment, decree,
determination or award having applicability to the Company or (ii)
conflict with or result in a breach of or constitute a default under
the partnership agreement of the Company or any indenture, loan
agreement or any other agreement or instrument to which the Company is
a party or by which the Company or any of its properties may be bound
or affected.
(iii) The execution and delivery of this Agreement
have been duly authorized by the Company and no other proceedings on
the part of the Company are necessary to authorize this Agreement. This
Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
(iv) The Company: (A) has sufficient knowledge, experience
and sophistication to enable it to properly and fully evaluate and
understand the merits and risks associated with its purchase of the
Shares hereunder, and (B) has, prior to
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the date hereof, received all information concerning ELXSI requested by
it, and had the opportunity to ask questions and receive answers
concerning the same. The Company is acquiring the Shares for investment
only and with no present intention of distributing or reselling such
Shares or any part thereof in any transaction that would constitute a
"distribution" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). The Company understands that the Shares
have not been registered under the Securities Act or any state
securities laws and may not be sold or transferred except in compliance
therewith or pursuant to an exemption thereunder and is being
transferred to the Company, in part, in reliance on the foregoing
representations and warranties.
(b) Representations and Warranties of BACC. As an
inducement to the execution by the Company of the Agreement, BACC
hereby represents and warrants to the Company as follows:
(i) BACC has all requisite power and authority
(corporate and otherwise) to execute, deliver and perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement
have been duly authorized by BACC. This Agreement constitutes the
legal, valid and binding obligation of BACC, enforceable against BACC
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws effecting
the enforcement of creditors' rights generally and to general equitable
principles.
(iii) BACC: (A) has sufficient knowledge, experience
and sophistication to enable it to properly and fully evaluate and
understand the merits and risks associated with its sale of the Shares
hereunder, (B) is an "accredited investor" (as such term is defined in
Rule 5.01(a) of Regulation D of the Securities Act), and (C) has, prior
to the date hereof, received all information concerning ELXSI requested
by it, and had the opportunity to ask questions and receive answers
concerning the same.
6. Assignment of Registration Rights. In consideration the sale by
BACC of the Shares to the Company, BACC hereby assigns to the Company all of its
rights with respect to the Shares under that certain Amended and Restated
Registration Rights Agreement, dated as of January 23, 1990, by and among the
ELXSI, Airlie, Xxxxxx and BACC.
7. Waiver of Exercise Conditions. In consideration of the sale by
BACC of the Shares to the Company, BACC and the Company hereby waive the
requirements of Section 3 of the Option Agreement, including, without
limitation, notice to BACC of the exercise of the Option and the simultaneous
exercise of the Airlie Option.
8. Survival of Representations and Warranties. All representations
and warranties contained in this Agreement shall survive the execution and
delivery of this Agreement.
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9. Notices. All notices and other communications shall be in writing
and shall be delivered by reputable overnight courier or first-class mail,
postage prepaid, to the Company or BACC at the respective addresses set forth on
the signature page hereto or to such other address as one party may have
furnished to the others in writing.
10. Assignment. This Agreement may not be assigned without the prior
written consent of the parties hereto.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws (excluding choice or conflicts of laws
rules) of the State of Illinois.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which taken together
constitute one instrument.
ELX LIMITED PARTNERSHIP
By: _______________________________
Name:______________________________
Title:_____________________________
Address:
0000 Xxxxxxxx Xxxx
Xxxxx X-0
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
BANKAMERICA CAPITAL CORPORATION
By: _______________________________
Name:______________________________
Title:_____________________________
Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Middle Market I
