STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 14th day
of January, 1997, by and among X.X. XXXXXXX COMPANY (the "Company"), a Missouri
corporation, AHI METNALL L.P. ("AHI"), a Delaware limited partnership, Mr. Xxxx
Xxxxx, an individual, and Xx. Xxxxx X. Xxxxx, an individual.
WHEREAS, AHI owns beneficially and of record 948,880 shares of common stock
of the Company (the "Shares") and Xx. Xxxxx and Xx. Xxxxx own indirectly an
interest in AHI and are members of the Board of Directors of the Company;
WHEREAS, the Company desires to purchase and AHI desires to sell the Shares
for the consideration set forth below, subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereby agree as follows:
1. SALE OF THE SHARES.
1.1 SALE OF SHARES BY AHI. Subject to the terms and conditions set forth
in this Agreement, AHI hereby agrees to sell, assign, transfer and deliver to
the Company the Shares, free and clear of all security interests, encumbrances,
mortgages, charges, liens, options and pledges of every kind.
1.2 FURTHER ASSURANCES BY AHI. At any time and from time to time after
the Closing (as defined below), at the Company's request and without further
consideration, AHI shall promptly execute and deliver such instruments of sale,
transfer, conveyance, assignment and confirmation, and take all such other
actions as the Company may reasonably request, to more effectively transfer,
convey and assign to the Company and to confirm the Company's title to all the
Shares owned by AHI, in order to carry out the purposes and intent of this
Agreement.
1.3 FURTHER ASSURANCES BY COMPANY. At any time and from time to time
after the Closing, at AHI's request and without further consideration, the
Company shall promptly execute and deliver such documents, and take all such
other actions as AHI may reasonably request, to more effectively carry out the
purposes and intent of this Agreement, the Note (as defined below) and the
Pledge Agreement (as defined below).
2. PURCHASE PRICE.
The total purchase price for the Shares shall be Twenty-Five Million Eight
Hundred Fifty-Six Thousand Nine Hundred Eighty Dollars ($25,856,980.00) (the
"Purchase Price") and shall be payable as follows:
(a) At the Closing (as defined below), the Company shall deliver
to AHI the sum of Twelve Million Eight Hundred Nine Thousand Eight Hundred
Eighty Dollars ($12,809,880.00) by wire transfer of immediately available
funds to an account that shall be designated by AHI at least two (2) business
days prior to the Closing. In the event the Closing occurs subsequent to
January 15, 1997, the amount wire transferred by the Company shall be
increased by interest payable thereon from January 15, 1997 to the Closing
Date, payable at the rate of eight percent (8%) per annum.
(b) At the Closing, the Company shall deliver to AHI a promissory
note in the amount of Thirteen Million Forty-Seven Thousand One Hundred
Dollars ($13,047,100.00), as adjusted by the amount due from AHI to the
Company pursuant to Section 12.2 of this Agreement, in the form attached as
Exhibit A hereto (the "Note"). The Note shall bear interest at the rate of
eight percent (8%) per annum, commencing on January 15, 1997, and shall have
the benefits of the Pledge Agreement.
3. CLOSING.
The purchase and sale of the Shares provided for in this Agreement (the
"Closing") shall take place at the offices of Xxxxxxxxx Xxxxxxx Xxxxxxx Weary
& Xxxxxxxx X.X., in Kansas City, Missouri, at 10 a.m. local time on January
31, 1997, or at such other place, time or date as may be mutually agreed upon
by the parties. The Closing shall take place prior to January 31 if the
Company is prepared for a closing prior to such date. The transfer of the
Shares by AHI to the Company shall be deemed to occur at 12:01 a.m. on the
date of the Closing (the "Closing Date").
4. CONDITIONS TO COMPANY CLOSING.
The obligations of the Company described in this Agreement are subject
to the conditions precedent of receipt by the Company of the following items
as of the Closing Date:
(a) Stock certificates representing the Shares, duly executed by AHI
for transfer to the Company or with stock powers duly endorsed by AHI to the
Company.
(b) A pledge agreement in form and content (including as to covered
collateral) mutually acceptable to the parties hereto and executed by AHI (the
"Pledge Agreement").
(c) A copy of resolutions adopted by the general partner of AHI,
in a form acceptable to the Company, authorizing the execution of this
Agreement and the agreements and documents contemplated hereby, and the
consummation of the transactions contemplated herein by AHI, duly certified
as of the date hereof by the Secretary of such general partner.
(d) The written resignations of Xx. Xxxxx X. Xxxxx and Mr. Xxxx Xxxxx
from the Board of Directors of the Company, in a form acceptable to the Company.
(e) A legal opinion from counsel for AHI, dated the Closing Date,
addressed to the Company, in form and substance acceptable to the Company, and
(subject to customary
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exceptions) generally covering the legal matters set forth in Sections 6.1,
6.2, 6.3, 6.4, 6.5, and 6.7 hereof.
(f) An opinion from Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, financial
advisor to the Board of Directors of the Company, dated on or before the
Closing Date, and (i) expressing the opinion that the price described above
for the Shares is within a range of fair value for the Shares and (ii) not
concluding that the proposed transaction will meaningfully detract from the
ability of the Company to complete a public offering of its common stock
within twelve months.
5. CONDITIONS TO AHI CLOSING.
The obligations of AHI described in this Agreement are subject to the
conditions precedent of receipt by AHI of the following items as of the
Closing Date:
(a) Evidence from the bank designated by AHI that Twelve Million
Eight Hundred Nine Thousand Eight Hundred Eighty Dollars ($12,809,880.000),
as increased by the interest payable pursuant to Section 2(a), has been wire
transferred to the account or accounts designated by AHI.
(b) The Note, duly executed by the Company.
(c) The Pledge Agreement, duly executed by the Company.
(d) The deed of trust referred to in the Pledge Agreement (the "Deed
of Trust"), duly executed by the Company.
(e) An allonge reflecting the collateral assignment to AHI of the
mortgage note described in the Pledge Agreement (the "Mortgage Note") and
documents described in the Pledge Agreement assigning to AHI the collateral
for such mortgage note (the "Collateral Document Assignments"), all duly
executed by the Company and in a form mutually acceptable to the parties
hereto.
(f) A copy of resolutions duly adopted by the Board of Directors
of the Company, in a form acceptable to AHI, authorizing the execution of
this Agreement and the other agreements and documents contemplated hereby,
and the consummation of the transactions contemplated herein by the Company,
duly certified as of the date hereof, by the Secretary of the Company.
(g) A legal opinion from counsel for the Company, dated the
Closing Date, addressed to AHI, in form and substance acceptable to AHI, and
(subject to customary exceptions and explaining to the extent appropriate its
analysis under Missouri corporate law relating to the ability of a Missouri
corporation to repurchase outstanding shares under certain circumstances)
generally covering the legal matters set forth in Sections 7.1, 7.2, 7.4, and
7.5 hereof.
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6. REPRESENTATIONS OF AHI.
AHI represents and warrants to the Company as follows:
6.1 ORGANIZATION AND AUTHORITY. AHI is a limited partnership duly
organized, validly existing and in good standing under the laws of the State
of Delaware, and has all requisite power and authority to own its properties
and carry on its business as now being conducted. AHI has full power to
execute and deliver this Agreement and the agreements contemplated herein,
and to consummate the transactions contemplated hereby.
6.2 AUTHORIZATION. The execution and delivery of this Agreement by
AHI, and the agreements provided for herein, and the consummation by AHI of
the transactions contemplated hereby and thereby, have been duly authorized
by all requisite limited partnership action. This Agreement and all such
other agreements and written obligations entered into and undertaken in
connection with the transactions contemplated hereby constitute the valid and
legally binding obligations of AHI, enforceable against AHI in accordance
with their respective laws.
6.3 TITLE TO SHARES. AHI has legal and beneficial title to the Shares
free and clear of any and all covenants, conditions, restrictions, voting
trust arrangements, pledges, liens, charges, encumbrances, options and
adverse claims or rights whatsoever.
6.4 TITLE CONVEYED. AHI has the full right, power and authority to
transfer, convey and sell to the Company at the Closing the Shares and, upon
consummation of the purchase contemplated hereby, the Company will acquire
from AHI legal and beneficial title to such Shares, free and clear of all
covenants, conditions, restrictions, voting trust arrangements, pledges,
liens, charges, encumbrances, options and adverse claims or rights whatsoever.
6.5 RESTRICTIONS ON TRANSFER. AHI is not a party to, subject to or
bound by any agreement or any judgment, order, writ, prohibition, injunction
or decree of any court or other governmental body that would prevent the
execution or delivery of this Agreement by AHI or the transfer, conveyance
and sale of the Shares to be sold by AHI to the Company pursuant to the terms
hereof.
6.6 BROKERS. No broker or finder has acted for AHI in connection with
this agreement or the transactions contemplated hereby, and, except as set
forth in Section 12.2 below, no person or entity is entitled to any fee or
other commissions in respect of such transactions based upon agreements,
arrangements or understandings made by or on behalf of AHI.
6.7 REGULATORY APPROVALS. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation that must be
obtained or satisfied by AHI and that are necessary for the consummation of
the transactions contemplated by this Agreement have been, or will be prior
to the Closing Date, obtained and satisfied.
6.8 ACCESS TO INFORMATION. Except as expressly set forth herein, AHI is
not relying on any representations or warranties of the Company in deciding to
sell the Shares. AHI has had
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full and complete access to the books and records of the Company in making
its decision to sell the Shares, and has had the opportunity to ask of
management of the Company all questions deemed necessary to a decision to
sell the Shares and has received answers to such questions satisfactory to
AHI.
7. REPRESENTATIONS OF THE COMPANY.
The Company represents and warrants to AHI as follows:
7.1 ORGANIZATION AND AUTHORITY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Missouri and has all requisite power and authority to own its properties
and carry on its business as now being conducted. The Company has full power
to execute and deliver this Agreement, the Note, and the agreements
contemplated herein, and to consummate the transactions contemplated hereby.
7.2 AUTHORIZATION. The execution and delivery by the Company of this
Agreement, the Note, and the agreements and other instruments provided for
herein, and the consummation by the Company of the transactions contemplated
hereby and thereby, have been duly authorized by all requisite corporate
action. This Agreement and all such other agreements and written obligations
(including the Note) entered into and undertaken in connection with the
transactions contemplated hereby constitute the valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms.
7.3 BROKERS. No broker or finder has acted for the Company in
connection with this agreement or the transactions contemplated hereby, and,
except as set forth in Section 12.2 below, no broker or finder is entitled to
any fee or other commissions in respect of such transactions based upon
agreements, arrangements or understandings made by or on behalf of the
Company.
7.4 REGULATORY APPROVALS. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation that must be
obtained or satisfied by the Company and that are necessary for the
consummation of the transactions contemplated by this Agreement have been, or
will be prior to the Closing Date, obtained and satisfied.
7.5 SECURITY INTEREST. Upon execution of the Pledge Agreement and
delivery to AHI at Closing of the Mortgage Note and the Collateral Document
Assignments: (i) AHI will have a valid and enforceable first priority
security interest in the Mortgage Note, and (ii) upon proper recordation of
the Collateral Document Assignments in Xxxxxxx County, Kansas, will have
obtained a valid and enforceable assignment of the documents securing the
obligations set forth in the Mortgage Note. Upon execution and delivery to
AHI of the Deed of Trust and recordation thereof in the appropriate real
estate records in Xxxxxxx County, Missouri, the Deed of Trust will create a
valid and enforceable first priority lien on the property described therein.
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8. NOTICES.
Any notice, request, demand, consent or other communication required or
permitted hereunder shall be in writing, signed by a duly authorized
representative of the party giving notice and given to the other party by
delivery in person; by recognized national overnight courier service; or by
facsimile transmission at the following addresses (or to such other person or
at such other address as either party may subsequently furnish the other by
notice in accordance with this section):
If to the Company:
Attention: Xx. Xxxxxxx Xxxxx
Chief Executive Officer
X. X. Xxxxxxx Company
000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
and by facsimile to: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx X.X.
Two Pershing Square
2300 Main, Suite 1100
Post Office Box 419777
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
and by facsimile to: (000) 000-0000
If to AHI:
Attention: Xx. Xxxxx X. Xxxxx
AHI Metnall L.P.
c/o Allen & Company, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and by facsimile to: (000) 000-0000
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with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Carnelutti
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
and by facsimile to: (000) 000-0000
Any such notice or other communication addressed as provided herein will
be deemed duly and validly given upon delivery if in person; upon delivery by
a recognized national overnight courier service; and upon receipt of a
confirmation slip evidencing satisfactory transmission if by facsimile
transmission.
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that
neither the Company nor AHI may assign their respective obligations hereunder
without the prior written consent of the other party. Any assignment in
contravention of this provision shall be void. No assignment shall release
the Company or AHI from any obligation or liability hereunder, unless
expressly agreed to by the other party.
10. ENTIRE AGREEMENT; AMENDMENTS; ATTACHMENTS.
This Agreement, all Exhibits hereto, and all agreements and instruments
to be delivered by the parties pursuant hereto represent the entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between
such parties. The Company, by the consent of its Board of Directors or
officers authorized by such Board, and AHI, by its general partner, may amend
or modify this Agreement, in such manner as may be agreed upon, by a written
instrument executed by the Company and AHI.
11. NON-DISCLOSURE.
This Agreement, all Exhibits hereto, all agreements and instruments to
be delivered by the parties pursuant hereto, and the negotiations between the
parties that preceded execution of such documents shall remain confidential
until such time as the Company, in its sole discretion, determines to make a
public announcement, the text of which shall be prepared by the Company and,
as to matters other than those required to be disclosed as a matter of law,
be subject to the consent of AHI.
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12. EXPENSES.
12.1 GENERAL. Except as otherwise expressly provided herein, the
Company and AHI will pay all of their own fees and expenses (including,
without limitation, legal and accounting fees and expenses) incurred by them
in connection with the negotiation and consummation of the transactions
contemplated hereby. AHI shall be responsible for payment of all sales or
transfer taxes arising out of the conveyance of the Shares owned by AHI.
12.2 INVESTMENT BANKING FIRM. The Company and AHI agree that upon the
Closing of the transactions contemplated by this Agreement, they shall each
be responsible for paying one-half of the fees of the investment banking firm
engaged by the Board of Directors of the Company to provide the opinion
referred to in Section 4(g) above. AHI's share of such fees, which shall not
exceed $57,500, shall be deducted from the original principal amount of the
Note to be delivered by the Company on the Closing Date.
13. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Missouri.
14. SECTION HEADINGS.
The section headings are for the convenience of the parties and in no
way alter, modify, amend, limit, or restrict the contractual obligations of
the parties.
15. TERMINATION.
If the Closing has not occurred on or before January 31, 1997, this
Agreement shall terminate and be of no force and effect, except for the
provisions of Section 11, unless extended by the mutual agreement, in writing,
by the Company and AHI.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of and on the date first above written.
COMPANY
X. X. Xxxxxxx Company
ATTEST:
By: /s/ XXXXXXX XXXXX
----------------------------
/s/ PRICE X. XXXXX Name: Xxxxxxx Xxxxx
-------------------------- ----------------------------
Secretary Title: President
----------------------------
AHI
AHI Metnall L.P.
By: AHI Kansas, Inc.
Its: General Partner
By: /s/ XXXXX X. XXXXX
----------------------------
Name: Xxxxx X. Xxxxx
----------------------------
Title: President
----------------------------
/s/ XXXX XXXXX
----------------------------
Xxxx Xxxxx, individually
/s/ XXXXX X. XXXXX
----------------------------
Xxxxx X. Xxxxx, individually
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