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EXHIBIT 10.29
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made this
28th day of February, 1995, between Xxxxxxxx-Xxxxxx Industries, Inc., a
Delaware corporation (the "Seller" or the "Company"), and Wachovia Bank of
North Carolina, N.A., not in its individual or corporate capacity, but solely
in its capacity as trustee (the "Trustee") of the Xxxxxxxx-Xxxxxx Industries,
Inc. Stock and Employee Benefit Trust (the "Trust", which is hereinafter
sometimes referred to as the "Purchaser") under a trust agreement between the
Seller and the Trustee dated as of February 28, 1995 (the "Trust Agreement").
W I T N E S S E T H:
WHEREAS, as contemplated by the Trust Agreement, the Purchaser is to
purchase from the Seller, and the Seller is to sell to the Purchaser,
15,000,000 shares of the Seller's Common Stock, par value $.16 2/3 per share
(the "Common Shares"), all as more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1. Purchase and Sale. Subject to the terms and conditions set
forth herein, the Seller will sell to the Purchaser, and the Purchaser will
purchase from the Seller, at the Closing (as hereinafter defined), the Common
Shares, and, in consideration for the Common Shares, the Purchaser will deliver
to the Seller (i) the note in the form of Appendix 1 to this Agreement in the
principal amount of $456,874,500 (the "Note") and (ii) cash in the amount of
$2,500,500.
1.2. Closing. The closing of the sale and purchase of the Common
Shares hereunder (the "Closing") will be held at the offices of the Seller at
10:00 a.m. Houston, Texas time, on the date of execution and delivery of this
Agreement by the Seller and the Purchaser, or at such other time, date and
place as may be mutually agreed upon by the Seller and the Purchaser.
1.3. Delivery and Payment. At the Closing, the Seller will deliver
to the Purchaser a certificate representing the Common Shares, which
certificate shall be registered in the name of the Trustee, or the name of its
nominee, against payment therefor by the Purchaser to the Seller of the
aggregate consideration set forth in Section 1.1 hereof. The Seller will pay
all stamp and other transfer taxes, if any, that may be payable in respect of
the sale and delivery of the Common Shares.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
2.1. Corporate Existence and Authority. The Seller (a) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, (b) has all requisite corporate power to
execute, deliver and perform this Agreement and (c) has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
2.2. No Conflict. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will
not, violate, conflict with or constitute a default under (a) the Seller's
certificate of incorporation or bylaws, (b) any agreement, indenture or other
instrument to which the Seller is a party or by which the Seller or its assets
may be bound or (c) any law, regulation, order, arbitration, award, judgment or
decree applicable to the Seller.
2.3. Validity. This Agreement has been duly executed and delivered
by the Seller and is a valid and binding agreement of the Seller enforceable
against the Seller in accordance with its terms, except as the enforceability
thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity.
2.4. The Common Shares. The Common Shares have been duly
authorized and, when sold as contemplated hereby, will be validly issued,
fully-paid and non-assessable shares of the Seller. No stockholder of the
Seller has any preemptive or other subscription right to acquire any shares of
Common Stock. The Seller will convey to the Purchaser, on the date of Closing,
good and valid title to the Common Shares free and clear of any liens, claims,
security interests and encumbrances.
2.5. Litigation. There are no actions, suits, proceedings,
arbitrations or investigations pending or, to the Seller's best knowledge,
threatened in any court or before any governmental agency or instrumentality or
arbitration panel or otherwise against or by the Seller which seek to or could
restrain, prohibit, rescind or declare unlawful, or result in substantial
damages in respect of, this Agreement or the performance hereof by the Seller
(including, without limitation, the delivery of the Common Shares).
2.6. Business and Financial Information. Seller has heretofore
delivered to the Purchaser copies of the audited consolidated balance sheets,
statements of stockholders' equity, statements of income and statements of cash
flows of Seller and its consolidated subsidiaries as of and for the fiscal
years ended September 30, 1993 and 1994 and the unaudited consolidated balance
sheet, statement of stockholders' equity, statement of income and
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statement of cash flows of Seller and its consolidated subsidiaries as of and
for the three months ended December 31, 1994 (including the related notes and
schedules, the "Seller Financial Statements"). The Seller Financial Statements
fairly present the consolidated results of operations, changes in stockholders'
equity and cash flows for the periods set forth therein and the consolidated
financial position as at the dates thereof of Seller and its consolidated
subsidiaries, in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in
the notes thereto and subject, in the case of unaudited financial statements,
to the omission of certain notes not ordinarily accompanying such unaudited
financial statements and to normal year-end audit adjustments which in each
case will not be material to Seller and its consolidated subsidiaries taken as
a whole. Since September 30, 1994, Seller has filed with the Securities and
Exchange Commission all forms, reports and documents required pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), to be filed by it (the
"Disclosure Documents"). At the time filed, all of the Disclosure Documents
complied as to form in all material respects with all applicable requirements
of such Acts. None of the Disclosure Documents, at the time filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
3.1. Authority; Validity. The Purchaser has full power and
authority under the Trust to execute and deliver this Agreement and the Note
and to consummate the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Trustee on behalf of the
Trust and is a valid and binding agreement of the Purchaser enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by any applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws affecting the enforcement of creditors'
rights generally, and by general principles of equity. The Note has been duly
authorized by the trustee on behalf of the Trust and, upon execution and
delivery by the Trustee on behalf of the Trust, the Note will be a valid and
binding agreement of the Purchaser enforceable in accordance with its terms,
except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws affecting the enforcement of creditors' rights generally, and by
general principles of equity.
3.2. No Conflict. The execution and delivery of this Agreement do
not, and the execution and delivery of the Note and
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the consummation of the transactions contemplated hereby and thereby will not,
violate, conflict with or constitute a default under (a) the terms of the
Trust, (b) any agreement, indenture or other instrument to which the Trust is a
party or by which the Trust or its assets may be bound or subject or (c) any
law, regulation, order, arbitration award, judgment or decree applicable to the
Trust.
ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
4.1. Restricted Securities. The Purchaser acknowledges that the
Purchaser is acquiring the Common Shares pursuant to a transaction exempt from
registration under the 1933 Act. The Purchaser represents, warrants and agrees
that all Common Shares acquired by the Purchaser pursuant to this Agreement are
being acquired for investment without any intention of making a distribution
thereof, or of making any sale or other disposition thereof which would be in
violation of the 1933 Act or any applicable state securities law, and that the
Purchaser will not dispose of any of the Common Shares, except that the Trustee
will, from time to time, convey to certain Plans (as defined in the Trust
Agreement) or sell pursuant to an effective Registration Statement under the
1933 Act or an exemption therefrom, a portion of the Common Shares to satisfy
the obligations of the Company or affiliate of the Company under such Plans,
and except upon termination of the Trust to the extent that the Trust then
holds any Common Shares, all in compliance with all provisions of applicable
federal and state law regulating the issuance, sale and distribution of
securities and then only in compliance with the Trust Agreement.
4.2. Legend. Until such time as the Common Shares are registered
pursuant to the provisions of the 1933 Act or may be sold without registration
in accordance with Rule 144 under the 1933 Act, any certificate or certificates
representing the Common Shares delivered pursuant to Section 1.1 will bear a
legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, transferred or otherwise disposed of unless they have first
been registered under such Act or unless an exemption from
registration is available."
The Seller may place stop transfer orders against the registration or transfer
of any shares evidenced by such a certificate or certificates until such time
as the requirements of the foregoing are satisfied.
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ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
5.1. Compliance and Filings. The Seller will comply with all
federal, state, local and foreign laws, regulations or orders, and all the
rules of any stock exchange or similar entity which are applicable to it or to
the conduct of its business, and, without limiting the generality of the
foregoing, shall make such filings, distributions and disclosures as are
required by the 1933 Act, the 1934 Act or any of the regulations, rules or
orders promulgated thereunder, insofar as the failure to comply would
materially and adversely affect the Company and its subsidiaries taken as a
whole. The Seller will maintain complete and accurate books, records and
accounts in accordance with the requirements of Section 13(b)(2) under the 1934
Act.
5.2. Registration; Listing. As soon as practicable after the
Closing, the Seller shall cause the Common Shares to be listed on the New York
Stock Exchange, Inc. The Seller will, after a written request by the Committee
(as such term is defined in the Trust Agreement) to register under the 1933 Act
such number of Common Shares as the Committee may from time to time direct,
prepare for filing at the Seller's expense a registration statement with the
Securities and Exchange Commission sufficient to permit the public offering of
such Common Shares in accordance with the terms of this Agreement, and the
Seller will use its best efforts in all matters necessary or advisable to cause
such registration statement to become effective as promptly as practicable and
to remain effective for a reasonable period, all to the extent requisite to
permit the sale or other disposition of such Common Shares. The Seller shall
also use its best efforts to register or qualify the Common Shares so
registered under the securities and blue sky laws of such jurisdictions within
the United States as the Trustee may reasonably request, provided, however,
that the Seller shall not be required to consent to general service of process
for all purposes in any jurisdiction where it is not then qualified.
ARTICLE VI
CONDITIONS TO CLOSING
6.1. Conditions to Obligations of Purchaser. The obligation of the
Purchaser to purchase the Common Shares is subject to the satisfaction of the
following conditions on the date of Closing:
(a) The representations and warranties of the Seller set
forth in Article II hereof shall be true and correct; and if the
Closing shall occur on a date other than the date of this Agreement,
the Purchaser shall have been furnished with a certificate, dated the
date of the Closing, to such effect, signed by an authorized officer
of the Seller; and
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(b) All permits, approvals, authorizations and consents
of third parties necessary for the consummation of the transactions
herein shall have been obtained, and no order of any court or
administrative agency shall be in effect which restrains or prohibits
the transactions contemplated by this Agreement, and no suit, action
or other proceeding by any governmental body or other person shall
have been instituted which questions the validity or legality of the
transactions contemplated by this Agreement.
6.2. Conditions to Obligations of the Seller. The obligation of
the Seller to issue, sell and deliver the Common Shares to the Purchaser is
subject to the satisfaction of the following conditions on the date of Closing;
(a) The representations and warranties of the Purchaser
set forth in Article III hereof shall be true and correct; and if the
Closing shall occur on a date other than the date of this Agreement,
the Seller shall have been furnished with a certificate dated the date
of the Closing, to such effect, signed by an authorized officer of the
Trustee; and
(b) No order of any court or administrative agency shall
be in effect which restrains or prohibits the transactions
contemplated by this Agreement, and no suit, action or other
proceeding by any governmental body or other person shall have been
instituted which questions the validity or legality of the
transactions contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. Expenses. The Seller shall pay all of its expenses, and it
shall pay the Purchaser's expenses, in connection with the authorization,
preparation, execution and performance of this Agreement, including, without
limitation, the reasonable fees and expenses of the Trustee, its agents,
representatives, counsel, financial advisors and consultants.
7.2. Survival of Seller's Representations and Warranties. All
representations and warranties made by the Seller to the Purchaser in this
Agreement shall survive the Closing.
7.3. Notices. All notices, requests, or other communications
required or permitted to be delivered hereunder shall be in writing, delivered
by registered or certified mail, return receipt requested, telecopier or hand
delivery as follows:
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(a) To the Seller:
Xxxxxxxx-Xxxxxx Industries, Inc.
000 X. Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Treasurer
Telecopier: (000) 000-0000
Assistant Secretary
Telecopier: (000) 000-0000
(b) To the Purchaser:
Wachovia Bank of North Carolina, N.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Any party hereto may from time to time, by written notice given as aforesaid,
designate any other address to which notices, requests or other communications
addressed to it shall be sent.
7.4. Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder shall be
specifically enforceable, and neither party will take any action to impede the
other from seeking to enforce such rights or specific performance.
7.5. Successors and Assigns; Integration; Assignment. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective legal representatives, successors and
assigns. This Agreement (a) constitutes, together with the Note, the Trust
Agreement and any other written agreements between the Purchaser and the Seller
executed and delivered on the date hereof, the entire agreement between the
parties hereto and supersedes all other prior agreements and understandings,
both written and oral, among the parties, with respect to the subject matter
hereof, (b) shall not confer upon any person other than the parties hereto any
rights or remedies hereunder and (c) shall not be assignable by operation of
law or otherwise, except that the Trustee may assign all its rights hereunder
to any corporation or other institution exercising trust powers in connection
with any such institution assuming the duties of a trustee under the Trust.
7.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
7.7. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or
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advisable to consummate and make effective the transactions contemplated by
this Agreement.
7.8. Amendment and Waiver. No amendment or waiver of any provision
of this Agreement or consent to departure therefrom shall be effective unless
in writing and signed by the Purchaser and the Seller.
7.9. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if the signatures thereto were upon one
instrument.
7.10. Certain Limitations. The execution, delivery and performance
by the Trustee of this Agreement have been, and will be, effected by the
Trustee solely in its capacity as Trustee under the terms of the Trust and not
in its individual or corporate capacity. Nothing in this Agreement shall be
interpreted to increase, decrease or modify in any manner any liability of the
Trustee to the Seller or to any trustee, representative or other claimant by
right of the Seller resulting from the Trustee's performance of its duties
under the constituent instruments of the Trust, and no personal or corporate
liability shall be asserted or enforceable against the Trustee by reason of any
of the covenants, statements or representations contained in this Agreement.
7.11. Incorporation. The terms and conditions of the Trust
Agreement relating to the nature of the responsibilities of the Trustee and the
indemnification of the Trustee by the Seller are incorporated herein by
reference and made applicable to this Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
on the date and year first above written.
XXXXXXXX-XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
as Trustee
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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APPENDIX 1
PROMISSORY NOTE
$456,874,500.00
Houston, Texas February 28, 1995
FOR VALUE RECEIVED, the undersigned, Wachovia Bank of North
Carolina, N.A., not in its individual or corporate capacity but solely in its
capacity as Trustee of the Xxxxxxxx-Xxxxxx Industries, Inc. Stock and Employee
Benefit Trust (the "Trust") hereby promises on behalf of the Trust to pay to
the order of Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation (the
"Company"), at the principal offices of the Company in Houston, Texas or at
such other place as the Company shall designate in writing, the aggregate
principal amount of FOUR HUNDRED FIFTY SIX MILLION EIGHT HUNDRED SEVENTY FOUR
THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($456,874,500.00), as shown on Annex A
attached hereto as such may be amended from time to time, with interest in
arrears thereon, as hereinafter provided.
Principal shall be paid in installments in the amounts and on
the dates set forth on the maturity schedule attached hereto as Annex A, the
last such installment due on September 30, 2000; provided, however, that this
Note may be prepaid in whole or in part at any time without penalty in
accordance with Section 2.2 of the Trust Agreement creating the Trust (the
"Trust Agreement"); and provided further, in accordance with Section 2.1 or 2.2
of the Trust Agreement, that all or any portion of the principal of this Note
outstanding at any time, together with any accrued but unpaid interest on this
Note, may be deemed forgiven; and provided further in the event that the Trust
shall have been terminated in accordance with Section 8.2 of the Trust
Agreement and the Trustee shall have complied with the requirements of Section
8.3 of the Trust Agreement, then any remaining principal of this Note then
outstanding, together with any accrued but unpaid interest on this Note, shall
be deemed forgiven. Interest on the unpaid principal balance, at an annual
interest rate equal to 8.5%, shall be paid annually, in arrears, on or before
each October 15 for interest accrued and unpaid as of the previous September
30, such payments commencing October 15, 1995, and shall be calculated on the
basis of a 360-day year of 30-day months. Payments received within any Trust
Year (as defined in the Trust Agreement) shall be applied (i) first to interest
accrued and unpaid as of the date of any such payment and then, to the extent
that any such payment exceeds such accrued and unpaid interest, (ii) to prepay
interest that accrues after such payment through the end of such Trust Year,
and then, (iii) to pay principal installments due within such Trust Year, and
then, (iv) to the extent not otherwise distributed in accordance with Section
2.3 of the Trust Agreement, to additional installments of principal in the
order of their scheduled maturity. Whenever any payment falls due on a
Saturday, Sunday or public holiday, such
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payment shall be made on the next succeeding business day. Upon termination of
the Trust, the entire unpaid balance of principal and interest shall be
immediately payable.
This Note shall be construed under the laws of the State of
Delaware.
The undersigned represents and warrants that the indebtedness
represented by this Note was incurred for the purpose of purchasing shares of
Common Stock, par value $.16 2/3 per share, of the Company.
The Note may not be assigned by the Company, other than by
operation of law, without the prior express written consent of the undersigned.
The Company shall have no recourse whatsoever to any assets of
the Trustee in its individual or corporate capacity for repayment. The Trustee
is entering into this Note not in its individual or corporate capacity but
solely as Trustee, and no personal or corporate liability or personal or
corporate responsibilities are assumed by, or shall at any time be asserted or
enforceable against, the Trustee in its individual or corporate capacity under,
or with respect to, this Note.
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
on behalf of
XXXXXXXX-XXXXXX INDUSTRIES, INC.
STOCK AND EMPLOYEE BENEFIT TRUST
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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ANNEX A
PRINCIPAL PAYMENT DATES
Principal Principal
Payment Date Payments
------------ -------------
30-Sep-1995 $ -0-
30-Sep-1996 -0-
30-Sep-1997 -0-
30-Sep-1998 -0-
30-Sep-1999 -0-
30-Sep-2000 456,874,500
------------
$456,874,500
============
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