Exhibit 10.2
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of November 30,
1999, between Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P. ("BRS") and the
individuals whose signatures appear on the signature pages hereto (collectively,
the "EXECUTIVES" and each individually, an "EXECUTIVE").
WHEREAS, BRS and the Executives desire to enter into an
agreement to provide for (i) the sale by each Executive of the number of shares
of common stock of X'Xxxxxxxx Industries Holdings, Inc. (the "STOCK"), set forth
opposite each Executive's name on SCHEDULE 1 hereto, and (ii) the purchase by
BRS of such Stock, in each case upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual undertakings
contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF STOCK
(a) Upon the execution of this Agreement, each Executive
will sell and BRS will purchase the number of shares of Stock set forth opposite
each Executive's name on the attached SCHEDULE 1 for a per share purchase price
equal to (x) $16.75 in cash and (y) subject to "Note (A)" to SCHEDULE 1, one
share of Senior Preferred Stock of OSI Acquisition, Inc. having a liquidation
value of $1.50 per share (the "PREFERRED STOCK"). In furtherance thereof, at the
closing of such purchase and sale, each Executive will deliver to BRS a
certificate (or certificates) representing the number of shares of Stock set
forth opposite such Executive's name on the attached SCHEDULE 1, and BRS will
deliver to each Executive, (i) a certified or cashier's check or wire transfer
of immediately available funds in the aggregate amount set forth opposite such
Executive's name in the attached SCHEDULE 1, and (ii) a certificate representing
the number of shares of Preferred Stock set forth opposite such Executive's name
in the attached SCHEDULE 1.
2. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVES. In
connection with the transactions contemplated hereunder, each Executive
represents and warrants to the Company that:
(a) THE STOCK. The shares of Stock held by such Executive
are held of record and owned beneficially by the Executive, free and clear of
any liens, restrictions on transfer, Taxes, options, warrants, purchase rights,
contracts, commitments, equities, claims and demands
(b) PREFERRED STOCK.
(i) The Preferred Stock to be acquired by such Executive
will be acquired for such Executive's own account and not with a view
to, or any present intention of, distribution thereof in violation of
the Securities Act of 1933, as amended from time to time (the
"SECURITIES ACT"), or any applicable state securities laws, and the
Preferred Stock will
not be disposed of in contravention of the Securities Act or any
applicable state securities laws.
(ii) no commission, fee or other remuneration is to be paid
or given, directly or indirectly, to any Person for soliciting such
Executive to purchase the Preferred Stock.
(iii) such Executive is an officer or employee of the
Company or one of its Subsidiaries, is sufficiently sophisticated in
financial matters to analyze the investment in the Preferred Stock, is
able to evaluate the risks and benefits of the investment in the
Preferred Stock, and has determined that such investment in the
Preferred Stock is suitable for such Executive, based upon such
Executive's financial situation and needs, as well as such Executive's
other securities holdings.
(iv) such Executive:
(A) has not been convicted within the last five years of
any felony or misdemeanor in connection with the offer, purchase, or
sale of any security or any felony involving fraud or deceit,
including, but not limited to, forgery, embezzlement, obtaining
money under false pretenses, larceny, or conspiracy to defraud;
(B) is not currently subject to any state administrative
enforcement order or judgment entered by a state securities
administrator within the last five years or is subject to any
state's administrative enforcement order or judgment in which fraud
or deceit, including, but not limited to, making untrue statements
of material facts and omitting to state material facts, was found
and the order or judgment was entered within the last five years;
(C) is not subject to any state's administrative
enforcement order or judgment which prohibits, denies or revokes the
use of any exemption from registration in connection with the offer,
purchase or sale of securities; or
(D) is not currently subject to any order, judgment or
decree of any court of competent jurisdiction, entered within the
last five years, temporarily or preliminarily restraining or
enjoining such Executive from engaging in or continuing any conduct
or practice in connection with the purchase or sale of any security
or involving the making of any false filing with the state.
(v) such Executive is able to bear the economic risk of
such Executive's investment in the Preferred Stock for an indefinite
period of time and the Executive understands that the Preferred Stock
has not been registered under the Securities Act and cannot be sold
unless subsequently registered under the Securities Act or an exemption
from such registration is available.
(vi) such Executive has had an opportunity to ask questions
and receive answers concerning the terms and conditions of the offering
of Preferred Stock and has had full access to
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such other information concerning the Company as the Executive has
requested. The Executive has reviewed, or has had an opportunity to
review the Company's Amended and Restated Certificate of Incorporation
and Bylaws;
(c) MISCELLANEOUS. This Agreement constitutes the legal,
valid and binding obligation of such Executive, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement by such
Executive does not and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Executive is a party or any
judgment, order or decree to which such Executive is subject.
3. REPRESENTATIONS AND WARRANTIES OF BRS. In connection with
the transactions contemplated hereunder BRS represents and warrants to each
Executive that the Preferred Stock to be transferred to such Executive is held
of record and owned beneficially by BRS, free and clear of any liens,
restrictions on transfer, taxes, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands.
4. RESTRICTIONS ON TRANSFERS.
(a) Each of the Executives hereby agrees that he will not
transfer any of the shares of Preferred Stock he receives pursuant to Section 2
hereof, other than any transfers contemplated by that certain Agreement and Plan
of Merger date as of May 17, 1999, between OSI Acquisition, Inc. and X'Xxxxxxxx
Industries Holdings, Inc. (as in effect from time to time).
(b) Any transfer or attempted transfer of any Securities in
violation of any provision of this Agreement shall be null and void, and the
Company shall not record such transfer on its books or treat any purported
transferee of such Securities as the owner of such Securities for any purpose.
5. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally,
mailed by certified or registered mail, return receipt requested and postage
prepaid, or sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient (followed by telephone confirmation to the receiving
party). Such notices, demands and other communications will be sent to the
address indicated below:
TO BRS:
Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
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WITH A COPY, WHICH SHALL NOT CONSTITUTE NOTICE TO BRS, TO:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
TO EACH EXECUTIVE:
[EXECUTIVE]
c/o X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx, 00000 - 1899
Attention: Secretary
Facsimile: 000-000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
7. MISCELLANEOUS.
(a) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) COMPLETE AGREEMENT. This Agreement embodies the
complete agreement and understanding among the parties and supersede and preempt
any prior under standings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(c) COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
(c) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Executive, the Company and their respective successors and assigns
(including subsequent holders of Executive Stock); provided, that the rights and
obligations of the Executive under this Agreement shall not be assignable except
in connection with a permitted transfer of Executive Stock hereunder.
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(d) GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF
DELAWARE WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY
AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY
AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(e) REMEDIES. Each of the parties to this Agreement will be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorneys' fees) caused by any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(f) AMENDMENT AND WAIVER. The provisions of this Agreement
may be amended and waived only with the prior written consent of the Company and
the Executives.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Purchase Agreement as of the date first written above.
BRUCKMANN, XXXXXX, XXXXXXXX & CO. II,
L.P.
By: B.R.S.E., L.L.C.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Its:
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX
/s/ XXXXX X. XXXXXXX
-------------------------------------
XXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXX
-------------------------------------
XXXXXX X. XXXXXX
/s/ XXX X. XXXXXX
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XXX X. XXXXXX
/s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX
/s/ XXXXXX X. X'XXXXXXXX
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XXXXXX X. X'XXXXXXXX
/s/ XXXXX X'XXXXXXXX
-------------------------------------
XXXXX X'XXXXXXXX
X'XXXXXXXX PROPERTIES, INC.
By: /s/ XXX X'XXXXXXXX
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Name: Xxx X'Xxxxxxxx
Its:
SCHEDULE 1
CONSIDERATION TO BE RECEIVED FOR STOCK
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CASH FOR
FRACTIONAL
SHARES IN LIEU
OF RECIEVING
PREFERRED PREFERRED
EXECUTIVE STOCK TO BE SOLD CASH STOCK STOCK (A)
------------------------- ----------------------- ------------------- --------------------- - ---------------------
Xxxxxx X. Xxxxxx 12,273.668 shares $205,583.939 12,273 shares $1.02
Xxxxx X. Xxxxxxx 28.239 shares $473.003 28 shares $.36
Xxx X. Xxxxxx 855.279 shares $14,325.923 855 shares $.42
Xxxxxx X. Xxxxxxx 1,714.279 shares $28,714.173 1,714 shares $.42
Xxxxx X. Xxxxxx 7,609.465 shares $127,458.539 7,609 shares $.70
Xxxxxx X'Xxxxxxxx 34,870 shares $584,072.50 34,870 shares $.00
Xxxxxx X'Xxxxxxxx and 3,012 shares $50,451.00 3,012 shares $.00
Xxxxx X'Xxxxxxxx, joint
tenants
X'Xxxxxxxx Properties, 112,958.404 shares $1,892,053.267 112,958 shares $.61
Inc.
TOTAL 173,321.334 SHARES $2,903,132.34 173,319 SHARES $3.53
(A) In lieu of issuing fractional shares of Preferred Stock, fractional
shares of Stock will be paid an additional cash amount equal to the
product of (i) $1.50 MULTIPLIED BY (ii) the fractional share.
