EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the
"Agreement"), made as of this 11 day of November, 1997, by and between The
Xxxxx Company, an Oklahoma corporation ("Xxxxx"), and Xxxxxx X. Xxxxxxx,
Republic National Bank of New York (Suisse) SA, Xxxxx Xxxxxx as XXX Custodian
F/B/O Xxxxx X. Xxxxxxx, and X. Xxxxxxxxxx (collectively, the "Sellers").
W I T N E S S E T H :
WHEREAS, the Sellers and Xxxxx
desire to provide for the purchase of all of the Xxxxx Series A Preferred Stock
("Preferred Stock") and Xxxxx Common Stock ("Common Stock") owned by the
Sellers;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants hereinafter set forth and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Sellers and Xxxxx hereby agree as follows:
1. STOCK PURCHASE. Subject to the
terms and conditions herein set forth, each of the Sellers hereby agrees to sell
and Xxxxx agrees to purchase (i) on the First Closing Date (as herein defined)
the number of shares of Common Stock Stock owned by the Sellers set forth on
Exhibit A hereto; and (ii) on the Second Closing Date (as hereinafter defined)
the number of shares of Preferred Stock as set forth on Exhibit A hereto.
2. PURCHASE PRICE. The purchase
price for the Common Stock shall be $5.00 per share, or an aggregate purchase
price for the Common Stock of $1,519,450. Because of the sale of assets by
Xxxxx'x subsidiary, Carbonic Reserves, as set forth in the Proxy Statement for
Xxxxx'x Annual Meeting of Shareholders held on October 10, 1997, (the "Proxy
Statement"), within ninety (90) days after December 31, 1997, Xxxxx will be
required to redeem a portion of Xxxxx'x outstanding Series A Preferred Stock out
of funds legally available therefor from not less than one-third of the
Company's "Consolidated Net Income" as defined in Xxxxx'x Certificate of
Incorporation. However, as Xxxxx'x audited financial statements will not be
available in January 1998, Xxxxx and the Sellers have agreed, based upon Xxxxx'x
good faith estimate of its Consolidated Net Income for fiscal year 1997
("Estimated CNI"), that at the Second Closing Xxxxx shall purchase in lieu of
redemption (x) 16,411.40 shares of Preferred Stock owned by the Sellers
(determined by multiplying 52.94% times one-third of Estimated CNI and dividing
Page 6 of 11 Pages
the product by $100) for an aggregate consideration of $1,641,140, ($100 per
share); plus (y) the remainder of the Preferred Stock owned by Sellers set forth
on Exhibit A for an aggregate consideration of $1,000,000. The purchase price
for the Common Stock and the aggregate consideration for the Preferred Stock
being herein sometimes collectively referred to as the "Purchase Price".
Notwithstanding the foregoing, $150,000 of the consideration which would
otherwise be payable to the Sellers shall instead be paid as a fee to Kanders &
Company for acting as investment banker to the Sellers, which fee shall be
allocated among Sellers pro rata to the total cash consideration each shall be
entitled to receive as purchase price for both Common Stock and Preferred Stock
hereunder, with the balance of the consideration being paid in accordance with
the Sellers' respective ownership of the Common Stock and Preferred Stock.
3. REPRESENTATIONS AND WARRANTIES OF
THE SELLERS. The Sellers severally and not jointly represent and warrant to
Xxxxx:
(a) Each Seller has the full legal
right, power and authority to enter
into this Agreement. This Agreement
has been executed and delivered by
each Seller and constitutes a legal,
valid and binding obligation of such
Seller, enforceable against such
Seller in accordance with its terms.
(b) The Common Stock and Preferred Stock
will be conveyed to Xxxxx at each
Closing free and clear of any and
all liens, claims, security
interests or encumbrances.
(c) Each Seller is the sole owner of the
Common Stock and the Preferred Stock
as reflected on Exhibit A hereto,
and has or will have at Closing full
right and lawful authority to
transfer such Stock as herein
contemplated, and to perform the
other obligations herein stated.
(d) Sellers have received the Proxy
Statement and have had the
opportunity to ask questions and
receive answers from officers of
Xxxxx which they deem relevant in
determining to sell the Common Stock
and the Preferred Stock.
4. REPRESENTATIONS AND WARRANTIES OF
XXXXX. Xxxxx has the full right, power and authority to enter
into this Agreement. This Agreement has been executed and
Page 7 of 11 Pages
delivered by Xxxxx and constitutes a legal, valid and binding obligation of
Xxxxx, enforceable in accordance with its terms, and does not violate Xxxxx'x
Certificate of Incorporation, By-laws or any material agreement to which Xxxxx
is a party, subject to the conditions in paragraph 7 hereof.
5. ADJUSTMENTS UPON CHANGES IN
CAPITALIZATION. The aggregate number of shares of Common Stock and Preferred
Stock under this Agreement, and the consideration payable hereunder, shall be
appropriately adjusted or modified to reflect any recapitalization, stock split,
merger, consolidation, reorganization, combination, liquidation, stock dividend
or similar transaction involving Xxxxx.
6. METHOD OF PAYMENT. The Purchase
Price for all of the Common Stock and Preferred Stock to be sold hereunder shall
be paid by wire transfer to such account or accounts as each Seller shall
designate.
7. CONDITIONS TO OBLIGATIONS OF
XXXXX. The obligation of Xxxxx to purchase all of the Common Stock and Preferred
Stock shall be subject to satisfaction of the following conditions at or prior
to Closing.
(a) Xxxx Xxxxxxx Mutual Life Insurance
Company shall have consented in
writing to the transactions
contemplated by this Agreement.
(b) The Board of Directors of Xxxxx
shall have approved this Agreement.
(c) There shall be no injunction or
other court ordered equitable relief
issued voiding or prohibiting
consummation of this Agreement or
any litigation pending seeking
material damages as a result of this
Agreement.
8. CLOSING. Subject to the terms and
conditions hereof, the First Closing shall be at 10:00 a.m., New York City time,
on the second business day following receipt of written notice by Sellers from
Xxxxx that all conditions set forth in Section 7 hereof have been satisfied. The
Second Closing shall be at 10:00 a.m., New York City time, on such date in
January, 1998 as shall be designated in writing by the Sellers not less than two
business days in advance. At each Closing, Sellers shall deliver, against
payment of the Purchase Price as set forth in this Agreement, certificates duly
endorsed for transfer representing the Stock purchased pursuant hereto. At the
First Closing, Sellers shall, in addition, deliver all consents necessary as
holders of the Preferred Stock to permit the consummation of the Merger and
related transactions contemplated in the Proxy Statement dated September 12,
1997.
Page 8 of 11 Pages
9. SPECIFIC PERFORMANCE. Each of the
parties agree that the remedy at law of the other party for any breach of this
Agreement would be inadequate, that damages in respect of any such breach would
be difficult or impossible to determine, and that both parties shall be entitled
to specific performance of this Agreement, in addition to all other remedies to
which either party may be entitled, at law or in equity.
10. NOTICES. All notices or other
communications required or permitted under this Agreement shall be in writing,
and may be delivered in person, or may be given by mail, telex, telegram or
facsimile transmission, and shall be deemed to have been duly made or given,
unless otherwise herein specifically provided, when actually received, or,
whether or not actually received, if deposited in the United States mail, by
registered or certified mail, postage prepaid, addressed as follows:
If to the Sellers: Kanders & Company
c/o Kane Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Xxxxx: The Xxxxx Company
Xxxxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxx, Xx.
President.
Facsimile No. (000) 000-0000
Any party may, by written notice so delivered to the other, change the address
to which delivery of notice shall thereafter be made.
11. MISCELLANEOUS.
(a) Applicable Law. This agreement
shall be governed by and construed in accordance with the laws of the State of
Oklahoma applicable to contracts made and to be performed entirely therein.
(b) Headings. The titles to
paragraphs in this Agreement are intended solely for convenience, and no
provision in this Agreement shall be construed by reference to any title of any
paragraph.
(c) Entire Agreement. This Agreement
contains the entire agreement between the parties regarding the subject matter
hereof and supersedes any prior written or oral
Page 9 of 11 Pages
agreements between them concerning such subject matter.
(d) Amendments. No provision of this
Agreement may be amended, modified, or waived except by a written agreement
signed by the Seller and Xxxxx.
(e) Counterparts. This Agreement may
be executed in any number of counterparts, each of which shall constitute an
original and all of which shall constitute only one agreement.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the day and year
first above written.
"XXXXX"
THE XXXXX COMPANY
By: s/ Xxxx Xxx
------------------------------
Xxxx Xxx, Xx., President
"SELLERS"
s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxx Xxxxxx as XXX Custodian
F/B/O Xxxxx X. Xxxxxxx
X. Xxxxxxxxxx
---------------------------------
X. Xxxxxxxxxx
REPUBLIC NATIONAL BANK OF NEW
YORK (SUISSE) SA
By: s/ Xxxxxx Xxxxx
------------------------------
Page 10 of 11 Pages
EXHIBIT A
Shares of $ Value Shares of $ Value
Name Common Stock Net of Fee Preferred Stock Net of Fee
---- ------------ ---------- --------------- ----------
Xxxxxx X. Xxxxxxx 171,274 $ 825,496 25,188.7592864 $1,343,604
Xxxxx Xxxxxx as XXX -0- -0- 9,016 480,926
Custodian F/B/O
Xxxxx X. Xxxxxxx
X. Xxxxxxxxxx -0- -0- 4,508 240,463
Republic National Bank 66,308 319,587 9,016 480,926
of New York (Suisse) SA
(formerly Mercury Bank)
Xxxxx X. Xxxxxxx 66,308 319,587 -0- -0-
----------- --------
$1,464,670 $2,545,919
========== ==========
Page 11 of 11 Pages
