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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered this 30 day of December, 1985, by and
among XXXXX INCORPORATED, a Delaware corporation (the "Corporation"), XXXXXXX
X. XXXXXX ("Xxxxxx"), XXXXX X. XXXXXX, Xxxxxx'x spouse, XXXX TRAIN ("Train")
and XXXX X. TRAIN, Train's spouse.
RECITALS
The parties acknowledge the following:
X. Xxxxxx owns 400 shares of the issued and outstanding $.10
par value voting common stock of the Corporation.
B. Train owns 300 shares of the issued and outstanding $.10
par value voting common stock of the Corporation.
X. Xxxxxx and Train (collectively, the "Shareholders") are
personally active in the management of the Corporation's business and the
Shareholders and the Corporation desire to promote the interests of the
Corporation by imposing certain restrictions and obligations on the stock
owned by the Shareholders in order to (1) stabilize the Corporation's
business; (2) prevent the separation of ownership from management of the
Corporation; (3) prevent the possibility of inexperienced shareholders
injecting themselves into the management of the Corporation's business; (4)
preclude, if possible, dissension, litigation or deadlock at the death of a
Shareholder; (5) assure continuity in the business of the Corporation for the
purpose of attracting key personnel; and (6) provide for the financial
stability of the Corporation.
AGREEMENTS
In consideration of the premises and mutual agreements contained
herein, IT IS AGREED:
1. General Restrictions on Stock - Applicability.
(a) Restrictions. The Shareholders shall not, during
their lives or upon their deaths, sell, transfer, give, assign, bequeath,
pledge or otherwise encumber or divest themselves of ownership or control of
all or any part of their Stock (as defined below), whether voluntarily or by
operation of law, except in accordance with the terms of this Agreement or by
written consent of the Corporation and the other Shareholder.
(b) Stock Subject to Agreement. The parties expressly
agree that this Agreement covers all shares of $.10 par value voting and
nonvoting common stock of the Corporation now owned or acquired in the future
by the Shareholders or their spouses while this Agreement remains in effect
(the "Stock"). "Stock" shall include, without limitation, all of the
Corporation's stock now owned or acquired in the future by the Shareholders
or their spouses as marital property or as their individual property and,
with respect to such Stock, the parties
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expressly agree that if a Shareholder's spouse shall predecease a Shareholder,
the interest of the deceased spouse in the Stock owned by the Shareholder shall
remain subject to the terms and provisions of this Agreement. The Stock shall
remain subject to this Agreement regardless of the termination of the marital
relationship of a Shareholder and his spouse for any reason.
The Shareholders' obligation to sell Stock shall include an
obligation on the part of their spouses to sell or offer to sell such spouses'
marital property interests in the Stock in the same manner.
2. Voluntary Transfers.
(a) Right of First Refusal in the Corporation. If a
Shareholder receives a written bona fide third-party offer to sell, transfer
or otherwise dispose of all or any part of his Stock (including any interest
of his spouse in such Stock), and such Shareholder desires to sell pursuant
to said offer, the Shareholder (the "Seller") shall immediately deliver a
copy of such written third-party offer to the President and Secretary of the
Corporation and to the other Shareholder and shall, simultaneously with the
delivery of such third-party offer, give written notice of his intention to
sell to the President and Secretary of the Corporation and to the other
Shareholder and, in such notice, shall offer to sell such Stock to the
Corporation at the price offered to Seller by the proposed third-party
purchaser of the Stock (the "Third-Party Price") and, at the Corporation's
option, upon the terms and conditions offered by the third-party purchaser of
the Stock (the "Third Party Terms") or upon the terms and conditions set
forth in paragraph 8 hereof (the "Terms and Conditions"). Within 45 days
after the receipt of said written notice, the Corporation may, by notice in
writing to Seller, elect to purchase all, but not less than all, of the Stock
thus offered.
(b) Right of First Refusal in Other Shareholder. If the
Corporation elects not to purchase the Stock thus offered, then the Stock
shall be offered for sale and shall be subject to an option on the part of
the other Shareholder to purchase all of the Stock at the Third-Party Price
and, at the option of the other Shareholder, upon the Third-Party Terms or
the Terms and Conditions. Such option shall be exercised by written notice
to Seller from the other Shareholder within 30 days from the date upon which
the Corporation's option period described above expires.
(c) Sale to Third Party. If the Seller's offer to sell
all of his Stock is not accepted by the Corporation or the other Shareholder
within the time limits stated above, Seller shall be free to make a bona fide
transfer of his Stock to any bona fide third-party purchaser at a price equal
to or greater than the Third-Party Price and upon the Third-Party Terms. If
the Seller shall fail to make and close the sale of his Stock within 60 days
after the date upon which the Shareholder's acceptance period described in
paragraph 2(b) expires, such Stock shall not be sold and shall again be
subject to the restrictions of this Agreement.
(d) Other Shareholder's Right to Sell. Within 30 days
after the Shareholder's acceptance period set forth in paragraph 2(b)
expires, the other Shareholder shall have the right, but not the obligation,
to elect by notice in writing to Seller to sell all, but not less than all,
of his Stock to the third-party purchaser at the same price per share and on
the same
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terms and conditions received by Seller at Seller's closing with the third-party
purchaser. Seller's agreement with the third-party purchaser shall contain a
provision requiring the third-party purchaser to purchase all of the shares
owned by the other Shareholder if he elects to sell pursuant to this paragraph
2(d).
(e) Sale to other Shareholder. Either Shareholder may
sell all or any part of his Stock (including any rights of his spouse in such
Stock) to the other Shareholder at a price and upon terms mutually agreeable
to the Shareholders.
3. Death. Upon the death of a Shareholder, the Corporation
shall purchase from the Shareholder's personal representative (the "Personal
Representative") and the Personal Representative shall sell to the
Corporation all of the Stock owned by the deceased Shareholder (including any
rights of his spouse in such Stock) at the purchase price described in
paragraph 7 hereof (the "Purchase Price") and upon the Terms and Conditions.
4. Disability of a Shareholder. In the event of a
Shareholder's Permanent Total Disability (as defined herein):
(a) The Corporation shall have an option to purchase from
the disabled Shareholder all of the Stock owned by him (including any rights
of his spouse in such Stock) at the Purchase Price and upon the Terms and
Conditions. The option to purchase by the Corporation may be exercised by
written notice to the disabled Shareholder at any time after the commencement
of Permanent Total Disability.
(b) Disabled Shareholder's Option. The disabled
Shareholder shall have an option to sell to the Corporation all of the Stock
owned by the disabled Shareholder (including any rights of his spouse in such
Stock) at the Purchase Price and upon the Terms and, Conditions. The option
to sell by the disabled Shareholder may be exercised by written notice to the
Corporation at any time one year after the commencement of Permanent Total
Disability.
(c) Definition of Permanent Total Disability. The term
"Permanent Total Disability" shall have the same meaning as that set forth in
those certain employment agreements dated December 30 , 1985 between the
Corporation and Xxxxxx and Train, respectively.
5. Termination of Shareholder's Employment.
(a) For Cause or Voluntary Termination On or Before
December 30, 1989. In the event that a Shareholder's employment with the
Corporation is terminated for Cause (as defined herein) or in the event that
a Shareholder terminates his employment with the Corporation for any reason
other than death or Permanent Total Disability on or before December 30,
1989, the Corporation shall purchase and the Shareholder shall sell all of
the Stock owned by the Shareholder (including any rights of his spouse in
such Stock) at the Purchase Price, less 25%, and upon the Terms and
Conditions. For purposes of this paragraph, the term "Cause" shall mean
fraud, dishonesty, acts of gross negligence in the course of employment,
material misrepresentation to shareholders of the Corporation and directors
of the Corporation,
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the commission of a felony or a failure to perform the duties set forth in that
certain employment agreement dated December 30, 1985 between the Corporation and
Xxxxxx or Train, as the case may be, or prescribed by the Board of Directors of
the Corporation to the reasonable satisfaction of the Board of Directors of the
Corporation.
(b) Without Cause or Voluntary Termination After December
30, 1989. In the event that a Shareholder terminates his employment with the
Corporation for any reason after December 30, 1989 or the event the
Shareholder's employment with the Corporation is terminated by the
Corporation at any time without Cause, the Shareholder shall sell and the
Corporation shall purchase all of the Stock owned by the Shareholder
(including any rights of his spouse in such Stock) at the Purchase Price and
upon the Terms and Conditions.
(c) Retirement of Shareholder. On a Shareholder's
retirement from active employment with the Corporation, the Shareholder shall
sell to the Corporation and the Corporation shall purchase from the
Shareholder all of the Stock owned by the Shareholder (including any rights
of his spouse in such Stock) at the Purchase Price and upon the Terms and
Conditions. For purposes of this Agreement, retirement shall mean
termination of employment at or after the Corporation's normal retirement age
of 65.
6. Termination of Marital Relationship - Involuntary
Disposition.
(a) If the marital relationship of a Shareholder is
terminated by death or divorce and the Shareholder does not succeed to his
spouse's marital property interest in the Stock, then the Shareholder shall
have an option to purchase all of his spouse's interest in the Stock and his
spouse or the executor or administrator of the spouse's estate, whichever is
applicable, shall be obligated to sell such interest in the Stock at the
Purchase Price and upon the Terms and Conditions. Such option must be
exercised in writing within 90 days after the death or divorce of such
Shareholder's spouse. If the Shareholder fails to exercise the option within
such 90-day period, the Corporation shall have the option to purchase the
spouse's interest in the Stock at the Purchase Price and upon the Terms and
Conditions for a period of 90 days after the lapse of the initial 90-day
period.
(b) Involuntary Disposition. Before any involuntary
disposition of the Stock, a Shareholder or a Shareholder's representative
shall give written notice to the Corporation disclosing in full the nature
and details of the involuntary disposition and the Corporation shall have the
option to purchase the Stock for 90 days after receipt of such notice at the
Purchase Price and upon the Terms and Conditions.
7. Purchase Price. Subject to paragraphs 2 and 5, the
purchase price ("Purchase Price") for any stock purchased and sold pursuant
to this Agreement shall be established by appraisal. Two appraisers shall be
chosen by agreement of the Corporation and the selling Shareholder or his
Personal Representative, as the case may be, within 30 days of the event
giving rise to the purchase and sale obligation. Each appraiser shall make
an independent appraisal as of the date of the Purchase Event (as defined
herein) in question and such appraisals shall not be discounted for minority
interests. The Purchase Price shall be the average of the two appraisals.
If the Corporation and selling Shareholder or his Personal Representative, as
the case
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may be, cannot agree upon two appraisers within such 30-day period, each party
shall select an appraiser within the next 15 days and the two appraisers shall
select two other appraisers and such other appraisers shall each determine the
Purchase Price of Stock being purchased and sold as soon thereafter as
practicable. The Purchase Price, as finally determined, shall be the average of
such two appraisals. The appraisals shall be conclusive and binding upon the
parties. The cost of any appraisals hereunder shall be shared equally by the
Corporation and the selling Shareholder or his estate, as the case may be. For
purposes of this Agreement, a Purchase Event shall occur upon the following
dates:
(a) In the event of purchases pursuant to paragraph 3,
the date of death of the Shareholder shall be the Purchase Event.
(b) In the event of purchases pursuant to paragraph 4
hereof, the date upon which Permanent Total Disability commences shall be the
Purchase Event.
(c) In the event of purchases pursuant to paragraph 5
hereof, the date of termination of employment of the Shareholder shall be the
Purchase Event.
(d) In the event of purchases pursuant to paragraph 6(a)
hereof, the date a spouse or such spouse's personal representative receives
notice of the exercise of an option under paragraph 6(a) shall be the
Purchase Event.
(e) In the event of purchases pursuant to paragraph 6(b)
hereof, the date a Shareholder receives notice of the Corporation's exercise
of its option under paragraph 6(b) shall be the Purchase Event.
8. Payment of Purchase Price.
(a) Sales Upon Death of a Shareholder. In the event of
(i) the death of a Shareholder and (ii) the Corporation receives the proceeds
of any insurance policy upon the life of the deceased Shareholder, the
Corporation shall, subject to the provisions of this paragraph 8(a), pay the
Personal Representative the amount of the proceeds of said policy at Closing
(as defined herein) as partial or complete payment for the Stock. In the
event the Purchase Price is less than the proceeds of the insurance policy,
the excess insurance shall be retained by the Corporation. In the event the
Purchase Price exceeds the amount of insurance proceeds, the proceeds shall
constitute the initial installment and the balance shall be paid As follows:
In the event the unpaid balance of the Purchase Price is less than $5,000,
the balance shall be paid in full on the first anniversary date of Closing.
In the event the unpaid balance exceeds $5,000, the unpaid balance shall be
paid in four equal installments, the first installment to be made on the
later of the first anniversary date of Closing or December 30, 1987 and the
remaining installments to be made on the three successive anniversary dates
of the first installment. In the event the Corporation receives no insurance
proceeds, the Corporation shall pay the Personal Representative 20% of the
Purchase Price on the later of Closing or December 30, 1987 (the "Initial
Installment") and shall pay the balance of the Purchase Price in four equal
annual installments, the first installment to be made on the first
anniversary date of the Initial
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Installment and the remaining installments to be made on the three successive
anniversary dates thereof.
(b) Voluntary Transfers, Termination of Employment and
Disability. In the event of a sale pursuant to paragraphs 2 (except
paragraph 2(e)), 4, 5 or 6, the Corporation or other Shareholder, as the case
may be ("Purchaser") shall, subject to the terms of paragraphs 2 and 5, pay
the Shareholder 20% of the Purchase Price on the later of Closing or December
30, 1987 (the "Initial Installment") and shall pay the balance in four equal
annual installments, the first installment to be made on the first
anniversary date of the Initial Installment and the remaining installments to
be made on the three successive anniversary dates thereof.
(c) Promissory Note. The unpaid balance of the Purchase
Price shall be represented by a promissory note (the "Note") delivered to the
Shareholder or the Personal Representative, as the case may be, at Closing.
The Note shall bear interest on the outstanding principal balance as of
Closing at the rate equal to the rate of interest charged by the Bank of
Boston its most creditworthy customers on 90-day unsecured loans as of
Closing (the "Prime Rate"), which rate shall be adjusted on each anniversary
date of the Note to the Prime Rate as of such anniversary date. Interest
shall be paid simultaneously with each payment of principal. The Note shall
provide for acceleration of maturity of the unpaid principal and interest
upon default of the payment of any installment of principal or interest. The
Purchaser shall have the right to prepay without penalty all or any part of
the unpaid balance at any time.
(d) Security. Except for a Note delivered pursuant to
paragraph 5(a) hereof, the Note shall be secured by a pledge of the Stock
purchased hereunder. Purchaser shall execute a collateral pledge agreement
("Collateral Pledge Agreement") in form and content satisfactory to the
selling Shareholder, or his estate, as the case may be, granting a security
interest for payment of the purchase price in an amount of the Stock,
purchased equal in value to the balance of the purchase price remaining
unpaid. For purposes of valuing the shares of Stock as collateral, each
share of Stock shall be deemed to have a value equal to the purchase price
paid per share of Stock. Certificates representing the shares of Stock so
pledged shall be delivered to Shareholder or his estate at Closing along with
stock powers signed in blank by the Purchaser. Upon payment of each
installment under the Note, Shareholder or his estate shall, within five days
after receipt of such installment, release to Purchaser a portion of the
shares of Stock so pledged in an amount equal in value to the amount of the
purchase price so paid. Shareholder or his estate shall not be entitled to
vote the shares of Stock so pledged or to receive dividends, if any, declared
thereon as long as the Purchaser is not in default in payment of the purchase
price and has not breached this Agreement.
9. Closing. The closing of purchases and sales of Stock
pursuant to this Agreement shall take place at the offices of the
Corporation. For purchases under this Agreement, the date of Closing shall
be as follows:
(a) In the event of purchases under paragraph 2 hereof
(except paragraph 2(e)), the date of Closing shall be within 30 days after
the date upon which the Shareholder is in receipt of all written acceptances
of his offer to sell.
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(b) In the event of purchases under paragraph 3 hereof,
the date of Closing shall be within 90 days after the date upon which the
Personal Representative is appointed.
(c) In the event of purchases under paragraph 4 hereof,
the date of Closing shall be within 40 days after the exercise- of an option
described in paragraph 4.
(d) In the event of purchases under paragraph 5 hereof,
the date of Closing shall be within 30 days after the date upon which
Shareholder's employment with the Corporation finally terminates.
(e) In the event of purchases under paragraph 6 hereof,
the date of Closing shall be within 40 days after the exercise of an option
described in paragraph 6.
10. Registration Rights.
(a) The Corporation agrees that if, at any time, it
purposes to file a registration statement with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Act"), covering any shares of its common stock, whether as a primary or
secondary offering, it will give written notice to the Shareholders of its
intention to do so and, on the written request of a Shareholder, made within
30 days after the notice of the Corporation, to include the shares of Stock
held by such Shareholder in such registration, the Corporation shall, subject
to the terms and conditions hereinafter set forth and the limitations herein
contained, use its best efforts to cause all shares of Stock referred to in
the written request to be registered under the Act so as to permit the sale
or other disposition thereof by the Shareholder in accordance with the terms
of such written request provided at least 50% of the shares of Stock held by
the Shareholder are included in the request. The Corporation shall not be
required to effect more than one registration under this paragraph 10(a).
(b) Each written request submitted to the Corporation
pursuant to the provisions of paragraph 10(a) shall be signed by the
Shareholder requesting registration and shall state the number of shares of
Stock with respect to which registration is requested and shall state the
intended method of distribution of such shares of Stock by the Shareholder.
(c) The Corporation shall be required to register or use
its best efforts to effect a registration pursuant to paragraph 10(a) only if
all of the following conditions are satisfied:
(i) The Shareholder shall undertake and agree with
the Corporation to complete the sale or other disposition of such Stock (in
accordance with the intended methods of distribution thereof set forth in the
written request) except that the Corporation shall have the right to select
the underwriter (as such term is defined in section 2(11) of the Act) and the
method of distribution, subject to approval by the Shareholder (which
approval shall not be unreasonably withheld) or withdraw from sale any unsold
Stock within nine months from the effective date of the registration and in
such event, such shares of Stock may be deregistered by the Corporation;
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(ii) the Shareholder shall furnish to the
Corporation such information and representations regarding the Stock held by
the Shareholder and the intended method or methods of disposition thereof as
the Corporation shall reasonably request and as shall be required under the
then existing law in connection with actions to be taken by the Corporation;
(iii) the Shareholder shall undertake, by an
agreement reasonably satisfactory to the Corporation, to indemnify and hold
harmless the Corporation, each of its directors, each of its officers who
have signed such registration statement and each person, if any, who controls
the Corporation within the meaning of the Act, against such losses, claims,
damages or liabilities to which the Corporation, any director, officer or
controlling person may become subject under the Act, or otherwise, in so far
as such losses, claims, damages or liabilities (or actions in respect
thereof), arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in such registration
statement, any prospectus or preliminary prospectus, or any amendment or
supplement thereto, or arise out of are based on an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was so made in reliance on information furnished
to the Corporation by the Shareholder specifically for use in the preparation
of such registration statement, prospectus, preliminary prospectus or
amendment or supplement thereto; and will reimburse the Corporation or any
such director, officer or controlling party for any reasonable legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof. It is agreed that the obligations of the Shareholder
hereunder shall be limited to an amount equal to the proceeds to the
Shareholder of shares sold pursuant to which a loss, claim, damage, liability
or action relates.
(d) If the Corporation proposes to file a registration
and written requests are submitted by the Shareholder pursuant to paragraph
10(a), the Shareholder and the Corporation agree to jointly xxxxx their
offerings pro rata (in proportion to the number of shares intended to be
sold) if either is requested to do so by the principal underwriter for the
offering.
(e) The Shareholder shall not be liable under the
indemnity agreement referred to in paragraph 10(c) unless, promptly after
written communication asserting a claim in respect of which payment may be
sought pursuant to such indemnity agreement shall have been received by any
party indemnified hereunder, either the indemnified party shall give written
notice thereof to the Shareholder or the Shareholder received actual notice
thereof. The Shareholder shall be entitled to participate at his own expense
in the defense or, if he so elects, jointly with any other indemnifying party
similarly notified, to assume the defense of any such suit or administrative
or other proceeding brought to enforce or determine any such liability.
After notice by the Shareholder of his election to assume the defense of any
such suit or administrative or other proceedings, the Shareholder shall not
be liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs for investigation. The Shareholder shall not be required to
indemnify any person for any payment made in settlement of any suit or claim
unless such payment is consented to by the Shareholder.
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(f) The Corporation's obligation to register or use its
best efforts to effect registration of or make a prospectus available with
respect to any Stock shall terminate in the event the Shareholder has
heretofore transferred any shares of Stock in violation of this Agreement.
11. Acts of Corporation. If and whenever the Corporation is
required by this Agreement to use its best efforts to effect the registration
under the Act of any Stock, it will:
(a) prepare and file with the Commission a registration
statement with respect to the Stock and use its best efforts to cause such
registration to become effective;
(b) use its best efforts to prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus comprised therein as may be necessary to keep such
registration effective and to comply with the provisions of the Act with
respect to the sale or other disposition of all stock covered by such
registration statement, in accordance with the intended method or methods of
distribution thereof set forth in such registration statement, for a period
of not more than nine months after the original effective date of such
registration statement; and
(c) furnish to the Shareholder such number of copies of a
summary prospectus or other prospectus, including the preliminary prospectus,
in conformity with the requirements of the Act, and such other documents as
the Shareholder may reasonably request pursuant to the terms hereof in order
to facilitate the public sale or other disposition of the Stock owned by the
Shareholder in accordance with the intended method or methods of distribution
thereof set forth in the registration statement.
12. Expenses. If and whenever the Corporation is required by
the provisions of paragraph 10(a) of this Agreement to use its best efforts
to effect the registration of any of the Stock under the Act, the Corporation
shall pay all expenses (other than underwriters' commissions and discounts)
of every kind and character (including, but without limitation, registration
fees, qualification fees, printing fees, legal and accounting fees and the
services of the regular full-time employees of the Corporation) of such
registration (and the qualification and sale of the Stock so registered).
13. Delay of Sales. The Shareholder agrees that if he submits
a written request pursuant to paragraph 10(a) hereof, he will not, without
the Corporation's written consent, sell any of such Stock from the date of
receipt by him of a written notice from the Corporation that it proposes to
file a registration statement as set forth in paragraph 10(a) hereof until
the earlier of four months thereafter or the expiration of 90 days after the
effective date of such registration statement except to the extent that his
shares are included in such registration statement.
14. Limitation Upon Ability of Corporation to Purchase. If, at
any time when the Corporation is required to purchase Stock hereunder, it
cannot satisfy the conditions precedent to acquisition of its shares under
any applicable loan agreement, covenant or statute, the Corporation shall
purchase as many shares of Stock as it shall have legal capacity so to do
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and the purchase commitment hereunder shall remain in effect as to any
unpurchased shares of Stock. If the Corporation is unable to complete any such
purchase because it cannot satisfy the conditions for acquisition of its own
shares under such agreement, covenant or statute, the Corporation and its
officers, directors and shareholders shall promptly take all steps reasonable
necessary to satisfy the requirements of such agreement, covenant or statute,
including, without limitation, the procurement of current appraisals on the
assets of the Corporation.
Any shares of Stock which the Corporation is unable to
purchase hereunder, because of the limitations stated in this paragraph 14
shall, for a period of five years be held for transfer by the owner thereof
subject to the provisions of this Agreement without in any way relieving the
Corporation of its purchase commitment or the owner or transferee thereof of
the duty to sell. The Purchase Price of such Stock shall be reestablished
pursuant to paragraph 7 at such time as the Corporation is able to complete
the purchase without violating the above-mentioned agreements, covenants or
statutes and Closing shall take place within 30 days of the reestablishment
of the Purchase Price. The owner or transferee of Stock not redeemed by the
Corporation within five years after the purchase obligation arose shall have
the option after such period to continue to require the Corporation to
purchase such shares of Stock for successive one-year periods as provided
above or to transfer such shares of Stock free of the restrictions contained
in this Agreement.
15. Legend on Certificate. Each certificate representing
shares of Stock in the Corporation issued and delivered to Shareholders shall
have endorsed thereon the following legend:
The shares of stock represented by this certificate
are restricted and subject to the terms of a stock purchase
agreement dated December _, 1985, a copy of which is on file with
the Secretary of the Corporation and will be furnished to any
interested party upon written request.
16. Specific Performance. The Stock cannot be readily
purchased or sold on the open market and, for that reason, among others, the
parties would be irrevocably damaged in the event that this Agreement is not
specifically enforced Should any dispute arise concerning the sale or
disposition of the Stock, an injunction may be issued restraining any sale or
disposition pending the determination of such controversy. In the event of
any controversy concerning the right or obligation to purchase or sell any of
the Stock, such right or obligation shall be enforceable in a court of equity
by a decree of specific performance. Such remedy shall, however, be
cumulative and nonexclusive and shall be in addition to any other remedy
which the parties may have.
17. Marriage of a Shareholder. The Shareholders agree that,
during the term of this Agreement, if a Shareholder marries and his spouse
fails to sign a counterpart to this Agreement which shall bind whatever
interest such spouse shall then or thereafter acquire in this Stock,
Shareholder shall offer his Stock to the Corporation at the price and on the
terms specified above as if Permanent Total Disability commenced on the date
of his marriage. On the execution of a counterpart to this Agreement, such
new spouse shall become a party to this Agreement together with all of the
then present parties to this Agreement as though such spouse were an
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original party hereto. For this purpose, all parties to this Agreement hereby
expressly bind themselves to such counterpart agreement by the Corporation's
execution of that agreement without further action on their part.
18. Notices. Any and all notices, offers and acceptances or
other communications provided for herein shall be in writing and shall be
delivered in person or by registered or certified mail, return receipt
requested, addressed in the case of the Corporation to its principal office
or, in the case of the Shareholders, to their respective addresses as they
appear on the records of the Corporation, or to such other address designated
in writing by them. Notice given in accordance with these provisions shall
be deemed given when delivered or mailed.
19. Modification. No change, modification or amendment to this
Agreement shall be valid unless the same shall be in writing and signed by
the parties hereto.
20. Termination. This Agreement shall terminate upon the
occurrence of any of the following events:
(a) bankruptcy, receivership or dissolution of the
Corporation; or
(b) voluntary agreement of the parties hereto;
provided, however, that the occurrence of the above-mentioned events shall
not affect payment due under purchases, arising prior to said occurrences.
Upon termination of this Agreement, the Shareholders shall be
entitled to have certificates representing their Stock reissued without the
endorsement, provided in paragraph 15 hereof.
21. Governing Laws. This Agreement shall be subject to and
governed by the laws of the State of Wisconsin.
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22. Benefits and Obligations. This Agreement shall inure to
the benefit of and shall be binding upon the Corporation, its successors and
assigns, including, without limitation, any person, partnership or
corporation which may acquire all or substantially all of the Corporation's
assets or business or into which the Corporation shall be consolidated or
merged and upon the Shareholders and, their spouses, their heirs, successors,
assigns and personal representatives.
XXXXX INCORPORATED
BY
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Xxxxxxx X.,Xxxxxx, President
Attest:
/s/ Xxxx Train
----------------------------
Xxxx Train, Secretary
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx Train
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Xxxx Train
/s/ Xxxx X. Train
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Xxxx X. Train
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