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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
as of April 29, 1998 by and between Guardian Assets, Inc., a Delaware
corporation ("Buyer"), and the stockholders of AK Industries, Inc., a Texas
corporation (the "Company"), listed on Schedule A ("Sellers").
RECITALS
A. The Boards of Directors of Buyer believes it is in the best interests
of Buyer and its stockholders that Buyer acquire all of the outstanding capital
stock of the Company (the "Acquisition").
B. The Sellers desire to sell the capital stock of the Company held by
them to Buyer.
C. The Sellers and Buyer desire to make certain representations and
warranties and other agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the parties agree as follows:
ARTICLE I
THE PURCHASE AND SALE
1.1 The Purchase and Sale. At the Closing (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement Sellers agree to
sell and deliver to Buyer and Buyer agrees to purchase from Sellers all of the
outstanding shares of the Company's Common Stock (the "Shares") free and clear
of all liens, claims and encumbrances.
1.2 Purchase Price. The aggregate purchase price for the Shares shall be
$3,000,000.00. In lieu of cash Buyer may deliver to the Sellers promissory notes
(the "Notes") substantially in the form attached hereto as Exhibit A and in the
principal amounts indicated next to each Seller's name on Schedule A.
1.3 The Closing. The closing of the Acquisition (the "Closing") will take
place on the date hereof (the "Closing Date"), at the offices of Buyer at 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000.
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1.4 Deliveries by Sellers and the Company. At the Closing, each Seller
shall deliver, or cause to be delivered, share certificates representing the
Shares owned by such Seller as indicated on Schedule A, duly endorsed for
transfer to Buyer. With respect to the Company, Sellers shall deliver a properly
executed FIRPTA exemption certificate which meets the requirements of Treasury
Regulation Section 1.1445-2.
1.5 Deliveries by Buyer. At the Closing, Buyer shall deliver the Notes
required by Section 1.2 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller represents and warrants to Buyer as follows:
2.1 Each Seller has all power and authority to enter into this Agreement,
to perform each Seller's respective obligations hereunder and to consummate the
transactions contemplated hereby.
2.2 This Agreement has been duly executed and delivered by each Seller and
constitutes a legal, valid and binding obligation of each Seller enforceable
against each Seller in accordance with its terms, except as such enforceability
may be limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable principles.
2.3 Each Seller has good and valid title to the Shares held by such
Seller, as reflected on Schedule A, and at the Closing good valid title to such
Shares will pass to Buyer free and clear of any liens, claims, encumbrances,
security interests, options, charges and restrictions of any kind.
2.4 Representations as to the Company
(a) Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas. The Company has the corporate power to own its properties and to carry on
its business as now being conducted. The Company has delivered a true and
correct copy of its Certificate of Incorporation and Bylaws, each as amended to
date, to Buyer.
(b) Company Capital Structure. The authorized capital stock of the
Company consists of 10,000 shares of common stock, no par value (the "Company
Capital Stock"), 1000 shares of which are issued and outstanding. All
outstanding shares of the Company Capital Stock are held solely by Sellers and
are duly authorized, validly issued, fully paid and non-assessable. As of the
Closing, there shall be no existing options, convertible securities, warrants,
calls, pledges,
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transfer restrictions (except restrictions imposed by federal and state
securities laws), liens, rights of first offer, rights of first refusal,
antidilution provisions or commitments of any character relating to any issued
or unissued shares of Company Capital Stock. There are no preemptive or other
preferential rights applicable to the issuance and sale of securities of the
Company, including the Shares, created by statute, the Certificate of
Incorporation or Bylaws of the Company or any agreement, written or oral, to
which the Company is a party or by which it is bound.
(c) Subsidiaries. The Company holds 1000 shares of common stock,
no par value (the "Subsidiary Shares"), of Amkor-Anam, Inc., a Texas corporation
(the "Subsidiary"), which Subsidiary Shares represent all of the authorized and
outstanding shares of the Subsidiary. Except for the Subsidiary, the Company
does not have and has never had any subsidiaries or affiliated companies and
does not otherwise own and has never otherwise owned any shares of capital stock
or any interest in, or control, directly or indirectly, any other corporation,
partnership, association, joint venture or other business entity.
(d) No Undisclosed Liabilities. The Company does not have any
liability, indebtedness, obligation, expense, claim, deficiency, guaranty or
endorsement of any type, whether accrued, absolute, contingent, matured,
unmatured or other.
(e) Operations. The Company has no employees, business or
operations, agreements with any third parties, governmental permits or licenses,
or, except for the Subsidiary Shares, assets or property of any kind.
(f) Litigation. There is no action, suit, claim or proceeding of
any nature pending or to Sellers' knowledge threatened against the Company, its
properties or any of its officers or directors (with respect to the operations
of the Company), nor, to the knowledge of Sellers, is there any basis therefor.
There is no investigation pending or threatened against the Company, its
properties or any of its officers or directors (nor, to the best knowledge of
Sellers, is there any basis therefor) by or before any governmental entity. No
governmental entity has at any time challenged or questioned the legal right of
the Company to own the Subsidiary Shares.
(g) Minute Books. The minute books of the Company made available
to counsel for Buyer are the only minute books of the Company and contain a
reasonably accurate summary of all meetings of directors (or committees thereof)
and stockholders or actions by written consent since the time of incorporation
of the Company.
2.5 Representations Complete. None of the representations or warranties
made by Sellers contains any untrue statement of a material fact, or omits to
state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
3.1 Organization, Standing and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the corporate power to own its properties and to carry on
its business as now being conducted and is duly qualified to do business and is
in good standing in each jurisdiction in which the failure to be so qualified
would have a material adverse effect on the ability of Buyer to consummate the
transactions contemplated hereby.
3.2 Authority. Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes the valid and binding obligations of Buyer,
enforceable in accordance with its terms, except as such enforceability may be
limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Expenses. All fees and expenses incurred in connection with the
Acquisition including, without limitation, all legal, accounting, financial
advisory, consulting and all other fees and expenses of third parties ("Third
Party Expenses") incurred by a party in connection with the negotiation and
effectuation of the terms and conditions of this Agreement and the transactions
contemplated hereby, shall be the obligation of Buyer.
4.2 FIRPTA Compliance. On the Closing Date, Sellers shall cause the
Company to deliver to Buyer a properly executed statement in a form reasonably
acceptable to Buyer for purposes of satisfying Buyer's obligations under
Treasury Regulation Section 1.1445-2(c)(3).
4.3 Additional Documents and Further Assurances. Each party hereto, at the
request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
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ARTICLE V
GENERAL PROVISIONS
5.1 Amendment. This Agreement may be amended by the parties hereto at any
time by execution of an instrument in writing signed on behalf of each of the
parties hereto.
5.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Buyer, to:
Xxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx XxXxxxxx
(b) if to Sellers, to:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
5.3 Interpretation. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words "without
limitation." The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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5.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5.5 Entire Agreement; Assignment. This Agreement, the schedules and
Exhibits hereto, and the documents and instruments and other agreements among
the parties hereto referenced herein: (a) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof; (b) are not intended to confer upon any
other person any rights or remedies hereunder; and (c) shall not be assigned by
operation of law or otherwise except as otherwise specifically provided, except
that Buyer may assign their respective rights and delegate their respective
obligations hereunder to their respective affiliates.
5.6 Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
5.7 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
5.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
5.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
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IN WITNESS WHEREOF, Buyer and Sellers have caused this Agreement to be
signed by their duly authorized respective officers, all as of the date first
written above.
BUYER
GUARDIAN ASSETS, INC.
/s/ Xxxxx X. Xxx
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Xxxxx X. Xxx, Chief Executive Officer
SELLERS
Xxxx X. Xxx Trust of December 31, 1987
/s/ Xxxxx X. Xxxxxxxxx, Attorney-in-Fact
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for Xxxx X. Xxx, Trustee
Name (print): Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxx Trust of December 31, 1987
/s/ Xxxxx X. Xxxxxxxxx, Attorney-in-Fact
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for Xxxxx X. Xxx, Trustee
Name (print): Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxx Trust of December 31, 1987
/s/ Xxxxx X. Xxxxxxxxx, Attorney-in-Fact
---------------------------------------
for Xxxxx X. Xxx
Name (print): Xxxxx X. Xxxxxxxxx
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***STOCK PURCHASE AGREEMENT***
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Schedule A
AK Industries, Inc. Stockholders
NAME COMPANY SHARES PRINCIPAL AMOUNT OF
---- -------------- -------------------
PROMISSORY NOTE TO BE
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RECEIVED
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Xxxx X. Xxx Trust of 333.33 $1,000,000.00
December 31, 1987
Xxxxx X. Xxx Trust of 333.34 $1,000,000.00
December 31, 1987
Xxxxx X. Xxx Trust of 333.33 $1,000,000.00
December 31, 1987
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