STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is made and entered
into as of March 31, 1998 by and among Xxxxxx Industries, Inc., a Delaware
corporation ("Xxxxxx DE"), Xxxxxx Industries, Inc., a Louisiana corporation
("Xxxxxx LA"), Xxxx Xxxxxx Xxxxxx ("Xxxxxx Xxxxxx"); Xxxx Xxxxxx Xxxxxx, Jr.
("Xxxx Xxxxxx, Xx."), appearing herein individually and as trustee of The Xxxx
Xxxxxx Xxxxxx, Jr. Trust ("Xxxx Xxxxxx, Xx. Trust"), as trustee of The Xxxxx
Xxxx Xxxxxx Trust ("Xxxxx Xxxxxx Trust"), as trustee of The Xxxxxxx Xxxxxxx
Xxxxxx Trust ("Xxxxxxx Xxxxxx Trust"), and as trustee of The Xxxxxx Xxxxxx
Xxxxxx Trust ("Xxxxxx Xxxxxx Trust"); Xxxxxxxxx Xxxxxx Court ("Xxxxxxxxx
Court"), appearing herein individually and as trustee of The Xxxxxxxxx Xxxxxx
Court Trust ("Xxxxxxxxx Court Trust") and as trustee of The Xxxxx Xxxxxxx Court
Trust ("Xxxxxxx Court Trust"); Xxxxxxx X. Xxxxxxx; and Xxxxx X. Xxxxxxxxx.
WITNESSETH:
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WHEREAS, Xxxxxx DE has been organized to serve as a holding company
for Xxxxxx LA;
WHEREAS, Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xx., Xxxx Xxxxxx, Xx. Trust,
Xxxxx Xxxxxx Trust, Xxxxxxx Xxxxxx Trust, Xxxxxx Xxxxxx Trust, Xxxxxxxxx Court,
Xxxxxxxxx Court Trust, Xxxxxxx Court Trust, Xxxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxxxx (the "Participants") are the sole owners of the $.01 par value common
stock of Xxxxxx LA (the "Xxxxxx LA Common Stock");
WHEREAS, pursuant to Section 351 of the Internal Revenue Code of 1986,
as amended (the "Code"), each of the Participants desires to exchange all of
their shares of Xxxxxx LA Common Stock for shares of common stock, par value
$0.01 per share, of Xxxxxx DE (the "Xxxxxx DE Common Stock"), it being the
intent of Xxxxxx DE and each Participant that such exchange of shares pursuant
to this Agreement (the "Stock Exchange") shall satisfy the requirements of such
section;
WHEREAS, as part of the transaction qualifying under Section 351 of
the Code, it is contemplated that following the Stock Exchange, Xxxxxx DE will
make a public offering of Xxxxxx DE Common Stock (the "Public Offering")
pursuant to the Securities Act of 1933, as amended (the "Securities Act");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 1.1. Representation of Xxxxxx DE. (a) Xxxxxx DE hereby
represents and warrants to each of the Participants that it is a corporation
duly incorporated under the laws of Delaware and that it has 1,000 shares of its
capital stock issued and outstanding consisting of 1,000 shares of Xxxxxx DE
Common Stock issued to Xxxx Xxxxxx, Xx.
(b) Xxxxxx DE hereby represents and warrants to each of the
Participants that the shares of Xxxxxx DE Common Stock to be issued pursuant to
the Stock Exchange, when issued in exchange for the shares of Xxxxxx LA Common
Stock as set forth in this Agreement, will be duly issued, fully paid and
nonassessable.
Section 1.2. Representations of Xxxxxx LA and the Participants.
Xxxxxx LA represents and warrants to Xxxxxx DE that Xxxxxx LA is a corporation
duly incorporated under the laws of Louisiana. Xxxxxx LA and each of the
Participants represent and warrant to Xxxxxx DE that the only shares of the
capital stock issued and outstanding consist of 2,265 shares of Xxxxxx LA Common
Stock issued to the following persons in the amounts set forth opposite their
names:
Number of Shares
Shareholders Issued and Outstanding
J. Xxxxxx Xxxxxx 508
Xxxx X. Xxxxxx, Xx. 248
Xxxx Xxxxxx, Xx. Trust 163
Xxxxx Xxxxxx Trust 117
Xxxxxxx Xxxxxx Trust 117
Xxxxxx Xxxxxx Trust 117
Xxxxxxxxx Xxxxxx Court 000
Xxxxxxxxx Xxxxx Trust 000
Xxxxxxx Xxxxx Trust 120
Xxxxxxx X. Xxxxxxx 168
Xxxxx X. Xxxxxxxxx 67
-----
Total 2,265
=====
Each of the Participants represents and warrants to Xxxxxx DE that the
shares set forth opposite his name are owned by such Participant and upon the
consummation of the Stock Exchange shall be free and clear of all liens,
encumbrances, options, calls, voting trusts and other charges ("Encumbrances")
(other than shares owned by Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxxx, which
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shares are currently pledged as collateral in connection with notes payable by
such Participants to Xxxxxx LA), and no other person has any ownership interest
in such shares.
Section 1.3. Representations of Participants. (a) Each Participant
represents and warrants that such Participant (i) has the requisite authority to
enter into this Agreement and to perform his obligations under this Agreement,
(ii) he has duly executed and delivered this Agreement, (iii) all filings,
approvals and consents necessary for the execution, delivery and performance of
this Agreement by such Participant have been made or obtained or shall have been
made or obtained prior to the Closing (as defined in Section 4.1 hereof), (iv)
this Agreement, when executed and delivered by such Participant, will be a valid
and binding agreement of such Participant, (v) the execution, delivery and
performance of this Agreement by such Participant and the consummation of the
transactions contemplated hereby by such Participant will not (A) conflict with
or result in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) or require consent under the terms of any agreement,
instrument, franchise, license or permit to which such Participant is a party or
by which such Participant may be bound or (B) violate or conflict with any
provision of any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over such Participant, and (vi) no consent, approval,
authorization, order, registration, filing, qualification, license or permit of
or with any court or any public governmental or regulatory agency or body having
jurisdiction over such Participant is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, except such as have been obtained or will be obtained by
such Participant prior to the Closing (as defined herein).
(b) Each Participant acknowledges receipt of (i) a copy of the
Certificate of Incorporation and Bylaws of Xxxxxx DE, (ii) the historical
financial statements of Xxxxxx LA for the three years ended December 31, 1995,
1996 and 1997, (iii) the historical financial statements of Orange Shipbuilding
Company, Inc., a Texas corporation ("Orange"), for the twelve-month period ended
December 31, 1997, (iv) the pro forma financial statements of Xxxxxx DE for the
year ended December 31, 1997 that give effect to the Stock Exchange as if it had
occurred on January 1, 1997 and (v) certain other information concerning Xxxxxx
DE and the Stock Exchange, and each Participant acknowledges that he received
all information necessary in order to make an informed decision concerning his
participation in the Stock Exchange.
(c) Each Participant acknowledges that such Participant has such
knowledge and experience in financial and business matters so that such
Participant is capable of evaluating the merits and risks of an investment in
Xxxxxx DE. Based upon such Participant's own knowledge, such Participant
recognizes the speculative nature of such an investment.
(d) Each Participant hereby acknowledges that the issuance of the
shares of Xxxxxx DE Common Stock being acquired or received by such Participant
hereunder is not and will not be registered under the Securities Act. Each
Participant represents that the shares of Xxxxxx DE Common Stock being acquired
or received hereunder is being acquired or received for such
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Participant's own account, for investment purposes only and not with a view for
distribution or resale to others, except as set forth in paragraph (e) below.
Each Participant agrees that such Participant will not sell or otherwise
transfer any shares of Xxxxxx DE Common Stock being acquired or received
hereunder unless such shares of Xxxxxx DE Common Stock are registered under the
Securities Act or unless an exemption from such registration is available.
(e) Each Participant has no present plan, intention, arrangement or
understanding to dispose of any of the shares of Xxxxxx DE Common Stock to be
received pursuant to the transactions described in Article III hereof.
(f) Each Participant agrees not to sell, transfer, convey, pledge,
encumber or otherwise dispose of such Participant's shares of Xxxxxx LA Common
Stock from the date hereof until the Closing, except with the written consent of
Xxxxxx DE or as contemplated by this Agreement.
(g) Each Participant consents to the placement of a legend on any
certificate or other document evidencing the shares of Xxxxxx DE Common Stock to
be received hereunder stating that such shares of Xxxxxx DE Common Stock have
not been registered under the Securities Act and setting forth or referring to
the restrictions on transferability and sale hereof.
ARTICLE II
WAIVER OF RIGHTS UNDER
XXXXXX LA ARTICLES OF INCORPORATION
Section 2.1. Xxxxxx LA Articles of Incorporation. Each of the
Participants hereby acknowledge notice of the offer, exchange and transfer
provided for herein, and hereby waive any preemptive rights to purchase shares
of Xxxxxx LA Common Stock provided for in Article V of the Restated Articles of
Incorporation of Xxxxxx LA (the "Xxxxxx LA Articles of Incorporation") with
respect to such offer, exchange and transfer of the shares of Xxxxxx LA Common
Stock, and further waive any preemptive rights to purchase shares of Xxxxxx LA
Common Stock pursuant to Article V of the Xxxxxx LA Articles of Incorporation in
connection with any and all prior sales, encumbrances, pledges, donations or
other dispositions of the shares of Xxxxxx LA Common Stock prior to the
consummation of the Stock Exchange. Each of the Participants understands and
agrees that the waiver of preemptive rights to purchase shares of Xxxxxx LA
Common Stock under Article V of the Restated Articles of Incorporation involves
a waiver of a valuable right that, if not waived, may otherwise entitle such
Xxxxxx LA Shareholder the right to acquire Xxxxxx LA Common Stock previously
distributed from certain of the Xxxxxx LA Shareholders to other Participants and
that the preemptive right purchase price for such shares may be substantially
lower than the fair market value of such shares as of the date hereof.
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ARTICLE III
TERMINATION OF STOCK PURCHASE
AND SALE AGREEMENT
Section 3.1. Participants - Xxxxxx LA Stock Purchase and Sale
Agreement. Effective immediately prior to the consummation of the Stock
Exchange, each of the Participants who are party thereto and Xxxxxx LA (i)
hereby terminates the Stock Purchase and Sale Agreement dated March __, 1991, by
and among the Participants named therein and Xxxxxx LA and (ii) hereby waives
any rights and remedies pursuant to the Xxxxxx LA Stock Purchase and Sale
Agreement becomming executory or accruing prior to the effective date of its
termination in connection with any and all sales, conveyances, assignments,
exchanges, pledges, donations or other transfers or encumbrances of shares of
Xxxxxx LA Common Stock.
ARTICLE IV
STOCK EXCHANGE
Section 4.1. Stock Exchange. Effective immediately prior to the
consummation of the Public Offering, each of the Participants shall exchange all
of his shares of Xxxxxx LA Common Stock for the number of shares of Xxxxxx DE
Common Stock set forth opposite his name (collectively, the "Exchange Stock"):
Stockholders Number of Shares
------------ ----------------
J. Xxxxxx Xxxxxx 1,166,270
Xxxx X. Xxxxxx, Xx. 569,360
Xxxx Xxxxxx, Xx. Trust 374,216
Xxxxx Xxxxxx Trust 268,609
Xxxxxxx Xxxxxx Trust 268,609
Xxxxxx Xxxxxx Trust 268,609
Xxxxxxxxx Xxxxxx Court 1,010,155
Xxxxxxxxx Court Trust 459,161
Xxxxxxx Court Trust 275,497
Xxxxxxx X. Xxxxxxx 385,695
Xxxxx X. Xxxxxxxxx 153,819
---------
Total 5,200,000
=========
Certificates representing the number of shares of Xxxxxx DE Common Stock set
forth above will be issued to the Participants upon the presentation of
certificates representing the shares of Xxxxxx LA Common Stock to be exchanged
therefor. The exchange of shares of Xxxxxx DE Common Stock
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for shares of Xxxxxx LA Common Stock shall all occur simultaneously.
Restrictions applicable to shares of Xxxxxx LA Common Stock owned by Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxxxx shall continue with respect to shares of Xxxxxx
DE Common Stock issued in exchange for such restricted shares.
Section 4.2. Cancellation of Previously Issued Xxxxxx DE Common Stock.
Simultaneously with the Stock Exchange specified in Section 3.1 of this
Agreement, all of the 1,000 shares of Xxxxxx DE Common Stock issued to Xxxx
Xxxxxx, Xx. in connection with the original organization of Xxxxxx DE shall be
canceled.
ARTICLE V
CLOSING
Section 5.1. Closing. The consummation of the transactions contemplated by
Article III and Article IV shall occur in the order set forth herein
substantially concurrently and shall close immediately prior to the closing of
the Public Offering at the offices of the Company, unless another place or time
is agreed upon in writing by the Company (the consummation of such transactions
is herein called the "Closing").
Section 5.2. Conditions. The Closing shall be contingent upon satisfaction
of the following conditions:
(a) An underwriting agreement relating to the Public Offering shall have been
entered into among Xxxxxx DE and a group of underwriters and all conditions
precedent to the consummation of the transactions contemplated thereby shall
have been satisfied.
(b) All consents and approvals by, or filings with, any governmental
authority, agency or official, or any other person required in connection with
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby shall have been received or made and
shall be in full force and effect.
Section 5.3. Termination. In the event that the Closing does not occur by
June 30, 1998 by reason of the failure of any of the conditions set forth in
Section 4.2 hereof to be satisfied, this Agreement shall thereafter become null
and void and have no effect, and no party hereto shall have any liability to the
other parties hereto.
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ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Further Assurances. At any time, and from time to time,
each party will execute such additional instruments and take such action as may
be reasonably requested by any other party to confirm or perfect title to any
shares of Xxxxxx LA Common Stock to be transferred hereunder or otherwise to
carry out the intent and purposes of this Agreement, including, without
limitation, giving any consents required under any applicable agreements
affecting the parties necessary to consummate the transactions specified in this
Agreement.
Section 6.2. Waivers. Any failure on the part of any party hereto to
comply with any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
Section 6.3. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
Section 6.4. Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 6.5. Governing Law. This Agreement shall be construed under
and in accordance with the laws of the State of Delaware without giving effect
to the principles of conflict of laws thereof.
Section 6.6. Amendment. No amendment of this Agreement shall be
effective without the written consent of any party affected adversely thereby.
Section 6.7. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 6.8. Notice. Any notice or other communication given
hereunder shall be deemed sufficient in writing and sent by registered or
certified mail, return receipt requested, or hand delivered and addressed to any
party at Xxxxxx DE's offices at 0000 Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx Xxxx,
Xxxxxxxxx 00000, or such other address as may be specified by a party by like
notice. Notices shall be deemed to have been given on the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
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Section 6.9. Successors and Assigns. This Agreement shall be binding
on the parties hereto and their permitted successors and assigns. None of the
parties hereto shall assign their rights under this Agreement without the prior
written consent of Xxxxxx DE.
Section 6.10. Unenforceable Provisions. If any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, in lieu of such invalid provision there shall be added a provision
which is as similar in terms as possible to such invalid provision and which is
valid and enforceable; such invalid provision shall not affect any other
provision of this Agreement, and, as so modified, this Agreement shall remain in
full force and effect.
Section 6.11. Expenses. Xxxxxx DE shall pay its own and each of the
parties' pre-approved expenses incurred in connection with the transactions
specified herein, other than separate legal, accounting or investment banking
counsel independently retained by a Participant, which shall be for the
Participant's own account.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date set forth above.
XXXXXX INDUSTRIES, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX INDUSTRIES, INC.,
A LOUISIANA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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/s/ J. XXXXXX XXXXXX
--------------------------------
J. XXXXXX XXXXXX
/s/ XXXX X. XXXXXX, XX.
--------------------------------
XXXX X. XXXXXX, XX.
/s/ XXXXXXXXX XXXXXX COURT
--------------------------------
XXXXXXXXX XXXXXX XXXXX
0
XXXX XXXXXX XXXXXX, XX. TRUST
/s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
By: Xxxx X. Xxxxxx, Xx., Trustee
XXXXX XXXX XXXXXX TRUST
/s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
By: Xxxx X. Xxxxxx, Xx., Trustee
XXXXXXX XXXXXXX XXXXXX TRUST
/s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
By: Xxxx X. Xxxxxx, Xx., Trustee
XXXXXX XXXXXX XXXXXX TRUST
/s/ Xxxx X. Xxxxxx, Xx.
------------------------------------
By: Xxxx X. Xxxxxx, Xx., Trustee
XXXXXXXXX XXXXXX COURT TRUST
/s/ Xxxxxxxxx Xxxxxx Court
------------------------------------
By: Xxxxxxxxx Xxxxxx Court, Trustee
XXXXX XXXXXXX COURT TRUST
/s/ Xxxxxxxxx Xxxxxx Court
------------------------------------
By: Xxxxxxxxx Xxxxxx Court, Trustee
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SPOUSAL CONSENT
I, the undersigned, spouse of J. Xxxxxx Xxxxxx, a party to that certain
agreement entitled "Stock Exchange Agreement" dated as of March 31, 1998,
acknowledge that I have read said agreement and do fully understand it, and, in
consideration of the provisions and benefits thereof, I agree and consent
thereto and to any disposition made thereunder of an interest I may have or may
come to have in the shares of common stock of either Xxxxxx Industries, Inc., a
Delaware corporation, or Xxxxxx Industries, Inc., a Louisiana corporation,
whether as community or separate property, dower rights or otherwise, pursuant
to the terms and conditions stated therein, effective as of March 31, 1998, at
Morgan City, Louisiana.
/s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
SPOUSAL CONSENT
I, the undersigned, spouse of Xxxx X. Xxxxxx, Xx., a party to that
certain agreement entitled "Stock Exchange Agreement" dated as of March 31,
1998, acknowledge that I have read said agreement and do fully understand it,
and, in consideration of the provisions and benefits thereof, I agree and
consent thereto and to any disposition made thereunder of an interest I may have
or may come to have in the shares of common stock of either Xxxxxx Industries,
Inc., a Delaware corporation, or Xxxxxx Industries, Inc., a Louisiana
corporation, whether as community or separate property, dower rights or
otherwise, pursuant to the terms and conditions stated therein, effective as of
March 31, 1998, at Morgan City, Louisiana.
/s/ Xxxx Xxx Xxxxxxx Xxxxxx
-----------------------------
Xxxx Xxx Xxxxxxx Xxxxxx
SPOUSAL CONSENT
I, the undersigned, spouse of Xxxxxxxxx Xxxxxx Court, a party to that
certain agreement entitled "Stock Exchange Agreement" dated as of March 31,
1998, acknowledge that I have read said agreement and do fully understand it,
and, in consideration of the provisions and benefits thereof, I agree and
consent thereto and to any disposition made thereunder of an interest I may have
or may come to have in the shares of common stock of either Xxxxxx Industries,
Inc., a Delaware corporation, or Xxxxxx Industries, Inc., a Louisiana
corporation, whether as community or separate property, dower rights or
otherwise, pursuant to the terms and conditions stated therein, effective as of
March 31, 1998, at Morgan City, Louisiana.
/s/ Xxxxx X. Court
-----------------------------
Xxxxx X. Court
