EXHIBIT 99(5)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of this
4th day of October, 2001 by and among XXXXXXXX GROUP, INC., a Nebraska
Corporation (the "Seller") and , an individual resident of the state of
Nebraska (the "Buyer").
W I T N E S S E T H:
WHEREAS, the Seller owns 323,885 shares of the Class A Common Stock, par
value $0.01 per share (the "Stock") of Ballantyne of Omaha, Incorporated, a
Delaware corporation (the "Corporation"), which Stock represents approximately
2.5885% of the issued and outstanding voting shares of the Corporation as of the
date hereof; and
WHEREAS, the Buyer desires to purchase from the Seller a total of
of the 323,885 shares of the Stock, representing approximately % of the
issued and outstanding voting shares of the Corporation as of the date hereof
on the terms and subject to the conditions and in the manner reflected
herein; and
WHEREAS, Seller is willing to sell such shares of Stock on the terms and
subject to the conditions and in the manner reflected herein;
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties do hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF STOCK. The Seller agrees to sell to the
Buyer and the Buyer agrees to purchase from the Seller, shares of the
Stock for an aggregate purchase price of $ (the "Purchase Price").
SECTION 2. THE CLOSING. The closing (the "Closing") with respect to the
purchase and sale of the Stock hereunder shall, subject to the satisfaction or
waiver of the applicable conditions set forth in Sections 6 and 7 hereof, take
place on such date (the "Closing Date") as is agreed to by the Seller and the
Buyer; provided that in no event shall such Closing Date be later than October
8, 2001.
SECTION 3. DELIVERIES AT CLOSING. At the Closing, the Seller shall deliver
one or more certificates representing the shares of the Stock purchased by the
Buyer which shall be duly registered in the name of the Buyer or its designees.
At Closing, the Buyer shall deliver good funds to the Seller in an amount equal
to the Purchase Price as provided in Section 1 hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents, warrants and covenants to the Buyer as of the date of this Agreement
and as of the Closing Date, as follows:
(a) SOLE OWNER. Seller owns the shares of the Stock free and clear of
any (i) charge, claim, community property interest or similar right or
interest, (ii) lien (statutory of otherwise), security interest or other
encumbrance, (iii) option, pledge, right of first refusal or similar right
or (iv) other agreement or restriction of any kind affecting the
transferability or ownership of the Stock (collectively, "Encumbrances").
Seller will convey such Stock to the Buyer free and clear of any
Encumbrances at the Closing. Seller has not granted any proxy or other
right to vote the shares of the Stock owned by Seller to any other person
or assigned the right to receive the payment of dividends or any other
distributions made with respect to such shares of the Stock to any other
person. The Seller has full power and authority to consummate the
transactions contemplated by this Agreement and the execution, delivery and
performance by it of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary action.
(b) ENFORCEABILITY. This Agreement is a valid and binding obligation
of the Seller, enforceable upon and against the Seller in accordance with
the terms and conditions, except to the extent such enforceability may be
limited by bankruptcy or insolvency laws, public policy or general
principles of equity.
(c) NONCONTRAVENTION. The execution and delivery of the Agreement by
the Seller and the consummation of the transactions as contemplated on each
do not or will not violate or result, with the giving of notice or the
lapse of time or both, in a material violation of any provision of (i) any
existing law or regulation or any order, award or decree of any court,
arbitrator or governmental authority by which the Corporation or any Seller
is bound or (ii) any mortgage, indenture, security agreement, shareholders
agreement, contract, agreement or other undertaking to which the
Corporation or the Seller is a party or by which the Corporation or the
Seller is bound.
(d) CLAIMS AND PROCEEDINGS. There are no pending or, to the Knowledge
of the Seller, threatened claims, complaints, proceedings, demands,
liabilities, suits or actions against the Seller or the Corporation before
any court or governmental, administrative or regulatory agency or authority
which seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the transaction contemplated by the Agreement. There are no
attachments, executions, assignments for the benefit of creditors or
voluntary or involuntary proceedings in bankruptcy pending or, to the
Knowledge of Seller, threatened against the Seller.
(e) ACCESS TO INFORMATION. The Seller represents, warrants and agrees
that it shall not assert any claim of whatsoever nature against the Buyer
or its affiliates arising out of the Seller (i) not having been provided
sufficient access to all information concerning the Company, including
without limitation, its financial condition, business, results of
operations and prospects, that Seller have requested; (ii) not having been
properly able to evaluate the Company's financial condition and the value
of the Shares transferred hereunder; and/or (iii) not having been given the
opportunity to obtain any additional information or documents from, and to
ask questions and receive answers of the Company's officers and
representatives to the extent the Seller has deemed necessary or
appropriate.
(f) ALL STOCK. The Stock transferred hereunder represents all of
Seller's interest, directly or indirectly, of record and beneficially held,
individually or in trust.
(g) NO BROKERS. The Seller has not engaged any broker, finder,
commission agent or other such intermediary in connection with the sale of
the Stock to the Buyer or is otherwise obligated to pay any broker's or
finder's fee or commission or similar payment in connection therewith.
SECTION 5. REPRESENTATIONS OF THE BUYER. The Buyer represents, warrants and
covenants to the Seller as of the date of this Agreement and the Closing Date,
which representations, warranties and covenants shall survive Closing, as
follows:
(a) AUTHORITY. The Buyer has full power and authority to consummate
the transactions contemplated by this Agreement and the execution, delivery
and performance by it of this Agreement and the consummation of the
transaction contemplated hereby have been duly authorized by all necessary
action.
(b) ENFORCEABILITY. This Agreement and all other agreements and
instruments to be executed in connection with this Agreement are valid and
binding and enforceable upon and against the Buyer in accordance with their
respective terms, except to the extent such enforceability may be limited
by bankruptcy or insolvency laws, public policy, or general principles of
equity.
(c) NONCONTRAVENTION. The execution and delivery of this Agreement by
the Buyer and the consummation of the transactions as contemplated on its
part does not or will not violate or result, with the giving of notice or
the lapse of time or both, in a material violation of any provision of (i)
any existing law or regulation or any order, award or decree of any court,
arbitrator or governmental authority by which it is bound or (ii) any
mortgage, indenture, security agreement, contract, agreement or other
undertaking to which it is a party or by which it is bound.
(d) PURCHASING FOR OWN ACCOUNT-ACKNOWLEDGEMENT OF RISKS. The Buyer
represents, warrants and acknowledges that the Shares are being sold to
Buyer without the sale being registered under the Securities Act of 1933,
as amended, or any state securities law. Buyer represents and warrants that
it is purchasing the Stock solely for its own account for investment
purposes only and not as nominee or agent for any other person and not with
a view to, or for offer or sale in connection with, any current
distribution thereof. Buyer represents and warrants that it has evaluated
the risks of investing in the Corporation and have determined that the
investment is suitable for the Buyer. The Buyer represents that it can bear
the economic risk of the investment and can afford a complete loss of the
investment. Buyer is knowledgeable and experienced in evaluating
investments and experienced in financial and business matters and is
capable of evaluating the merits and risks of investing in the Corporation.
Buyer is an "Accredited Investor" as that term is defined in Rule 501 of
Regulation D of the Securities and Exchange Commission under the Securities
Act of 1933, as amended.
(e) ACCESS TO INFORMATION. The Buyer represents, warrants and agrees
that it shall not assert a claim of whatsoever nature against the Seller or
its affiliates arising out of the Buyer (i) not having been provided
sufficient access to all information concerning the Company, including
without limitation, its financial condition, business, results of
operations and prospects, that Buyer has requested; (ii) not having been
properly able to evaluate the Company's financial condition and the value
of the Shares transferred hereunder; and/or (iii) not having been given the
opportunity to obtain any additional information or documents from, and to
ask questions and receive answers of the Company's officers and
representatives to the extent the Buyer has deemed necessary or
appropriate.
(f) NO BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
purchase of the Stock by the Buyer under this Agreement.
SECTION 6. CONDITIONS TO BUYER'S OBLIGATIONS AT CLOSING. The obligation of
the Buyer to purchase the Stock shall be subject to the fulfillment of each of
the following conditions at or prior to the Closing Date, unless the Buyer shall
waive fulfillment of such condition:
(a) Each of the representations and warranties of the Seller set forth
in this Agreement shall have been true in all material respects as of the
date of this Agreement and as of the Closing Date;
(b) The Seller shall have performed each of his agreements and
obligations under this Agreement required to be performed on or prior to
the Closing Date;
(c) The Seller shall have obtained all consents of, or waivers by,
third parties necessary to perform the obligations hereunder including, but
not limited to, any consent or waiver required to be obtained from the
Corporation or other shareholders of the Corporation concerning the
Corporation's Rights Agreement, and
(d) The Seller shall have delivered to the Buyer one or more
certificates representing the Stock which shall be duly registered in the
name of the Buyer or its designee
SECTION 7. CONDITIONS TO SELLER'S OBLIGATIONS AT CLOSING. The obligation of
the Seller to sell the Stock shall be subject to the fulfillment of each of the
following conditions at or prior to the Closing Date, unless the Seller shall
waive fulfillment of such condition:
(a) Each of the representations and warranties of the Buyer set forth
in this Agreement shall have been true in all material respects as of the
date of this Agreement and as of the Closing Date;
(b) The Buyer shall have performed each of its other agreements and
obligations under this Agreement required to be performed on or prior to
the Closing Date; and
(c) The Buyer shall have delivered good funds to the Seller for the
Purchase Price as provided in Section 1 hereof;
SECTION 8. COVENANTS OF THE BUYER. The Buyer agrees that unless otherwise
agreed to in writing by both parties hereto:
(a) The shares of Stock transferred hereunder shall not be assigned
or pledged in any manner.
(b) The shares of Stock transferred hereunder shall be registered in
the name of the Buyer but shall remain in the physical possession of
the Seller.
(c) At all times during which the Buyer owns, either directly or
beneficially, the Stock, the Seller, or the Seller's designee shall
vote all shares of said Stock in all matters that require the vote of
the shareholders. Buyer agrees to execute any and all documents at any
and all times as may be required designating transferring or assigning
such voting right to the Seller.
(d) It shall not sell the Stock without the written approval of the
Seller, which may be withheld for any reason.
(e) For the purposes of Regulation 13D of the Securities Exchange Act
of 1934, as amended ("The Act"), Buyer shall be included as part of
the group, as that term is defined in The Act, which includes the
Seller. As such, Buyer agrees to cooperate with the Seller in all
respects concerning the filing of all required material, forms and
reports regarding the ownership of the Stock by the Buyer, the Seller
or other members of the group as that term is defined by The Act, and
agrees not to sell, acquire, transfer, pledge or hypothecate any
shares of the Corporation either for its own account or for the
account of others without the written consent of the Seller.
SECTION 9. TERMINATION. This Agreement and all other documents and
agreements delivered in connection herewith and the transaction contemplated
herein may be terminated at any time prior to the Closing Date by either party
hereto if the Closing Date has not occurred by October 8, 2001.
SECTION 10. REPRESENTATIONS, WARRANTIES AND COVENANTS TO SURVIVE/KNOWLEDGE.
(a) The representations and warranties of the Seller and the Buyer
contained in this Agreement shall survive the Effective Date indefinitely.
(b) No party to this Agreement shall be entitled to rely on or seek
recovery from breach of a representation or warranty contained in or made
pursuant to this Agreement if such party had Knowledge of the inaccuracy of
the same prior to or as of the Closing Date.
(c) Each of the parties hereto agree to indemnify each other and each
others managers, members, controlling persons and employees and hold each
of them harmless
from and against any loss, damage, liability, cost or expense (including
reasonable attorneys' fees and disbursements) arising out of or in
connection with a breach of any representation, warranty or agreement made
by the respective party in this Agreement.
(d) As used throughout this Agreement, the term "Knowledge", when
capitalized, shall mean actual knowledge of the person(s) indicated.
SECTION 11. EXPENSES. Each party shall be responsible for the payment of
such party's own costs and expenses, including legal fees.
SECTION 12. NOTICES. All notices and other communications delivered
hereunder (whether or not required to be delivered hereunder) shall be deemed to
be sufficient and duly given if contained in a written instrument (a) personally
delivered, (b) sent by telecopier, (c) sent by nationally recognized overnight
courier guaranteeing next Business Day delivery or (d) sent by first class
registered or certified mail, postage prepaid, return receipt requested, in each
case addressed to the other party at such address as the party to whom such
notice or other communication is to be given may have furnished to each other
party in writing.
SECTION 13. ENTIRE AGREEMENT. This Agreement contains and constitutes the
entire agreement of the parties regarding the purchase and sale of the Stock
from the Seller to the Buyer, and there are no other agreements, written or
oral, between the parties affecting the subject matter hereof.
SECTION 14. WAIVERS. Any party hereto may waive any of the conditions
contained herein or any of the obligations of the other parties hereunder, but
any such waiver shall be effective only if it is in writing and signed by the
party waiving such condition or obligation.
SECTION 15. ASSIGNMENT OR DELEGATION. No rights, obligations or duties of
any party hereto may be assigned or delegated without the prior written consent
of the other parties hereto other than by operation of law with respect to a
deceased Seller. This Agreement shall bind and inure to the benefit of the
Seller and the Buyer and their respective successors, assigns, heirs, devisees
and personal representatives who shall each be bound by, and entitled to the
benefits of, this Agreement.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one in the same agreement.
SECTION 17. GOVERNING LAW. This agreement shall be construed and
interpreted in accordance with the laws of the State of Nebraska without giving
effect to its conflict of laws principles.
SECTION 18. FURTHER ASSURANCES. Each of the parties hereto agrees to take
such further action and to execute such further instruments as may be reasonably
required by any of the other parties in order to consummate the transactions
contemplated by this Agreement and to carry out the intentions expressed in this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SELLER:
XxXxxxxx Group, Inc., A Nebraska
Corporation
By /s/ XXXXXXXX X. XXXXX
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Xxxxxxxx X. Xxxxx
Chief Financial Officer
BUYER
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