EXHIBIT 10.10
XXXXXXX'X MANAGEMENT CORPORATION, INC.
QUALIFIED SHAREHOLDERS AGREEMENT
This Agreement is made this 29th day of March, 1984, by and among
XXXXXXX'X MANAGEMENT CORPORATION, INC., a Texas corporation (hereinafter
referred to as the "Corporation") and the undersigned officers, Directors and
key employees of the Corporation or its subsidiaries, Xxxxxxx'x Management
Corporation of Nevada, Inc., Xxxxxxx'x Food Markets, Inc., Xxxxxxx'x Properties,
Inc., and Xxxxxxx'x Warehouse Corporation (hereinafter referred to as the
"Qualified Shareholders");
WHEREAS, the Corporation is incorporated under the laws of the State of
Texas, with the following authorized amount of Class B, Class C and Class D of
non-voting common stock, of which the following shares are issued and
outstanding; to-wit:
Authorized Issued
---------- ------
Class B 5,000,000 1,000,000
Class C 5,000,000 1,000,000
Class D 5,000,000 1,000,000
WHEREAS, by unanimous consent of the Board of Directors of the
Corporation, dated October 31, 1983, the Corporation authorized the then present
owners of the Class B, Class C and Class D non-voting common stock of the
Corporation ("Present Shareholders"), to sell to certain officers, directors and
key employees of the Corporation or its subsidiary corporations, as designated
by the Corporation's Board of Directors, shares of their Class B, Class C and
Class D non-voting common stock during the month of January, 1984, in a minimum
quantity of one hundred (100) shares and a maximum quantity of one thousand
(1,000) shares per person and subject to the provisions of this Agreement; and,
WHEREAS, the Qualified Shareholders are the owners of the amount of such
issued and outstanding Stock of the Corporation as follows each name of the
undersigned; and,
EXHIBIT "A"
WHEREAS, the Corporation and the Qualified Shareholders desire to promote
their mutual interest and the interest of the Corporation by imposing certain
restrictions and obligations on themselves and said shares of the Stock of the
Corporation; and,
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed as follows:
1. DEFINITIONS: As used in this Agreement:
a. The term "Stock" shall mean all issued and outstanding shares of
Class B, Class C and Class D common stock of the Corporation acquired from the
Present Shareholders by the Qualified Shareholders as authorized by the Board of
Directors on October 31, 1983, and that are hereafter authorized by the Board of
Directors and acquired by the Qualified Shareholders. Moreover, all references
herein to Stock owned by a Qualified Shareholder includes the community
interest, if any, of the spouse of such Qualified Shareholder in such Stock.
This Agreement shall not cover such shares of the Corporation stock that are
part of a class of shares that is being publicly traded in an established
securities market.
b. The term "Disposition" shall mean any inter vivos transfer,
pledge, assignment, hypothecation, mortgage or other encumbrance, or any other
disposition of Stock whatsoever, whether voluntary or involuntary.
2. INVESTMENT REPRESENTATIONS: In connection with the acquisition of the
Stock by the Qualified Shareholder, each Qualified Shareholder upon executing
this Agreement makes the following representations on which the Corporation and
present Shareholders may rely in aid of exemptions from the registration
requirements of the Securities Act of 1933, as amended ("the Act"):
"a. I am aware that the Stock will not be registered under the Act
on the grounds that the sale and issuance thereof were exempt under Section
4(a). I understand
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that reliance upon such exemption is predicated in part on the representation,
which is hereby confirmed, that I am acquiring the Stock for my own account, for
investment and without a view to the distribution thereof within the meaning of
such term as used in the Act; and upon the further representation, which is also
confirmed, that I will not take any action which will subject the acquisition or
issuance of the Stock to the registration requirements of the Act. I have been
fully advised with respect to and am familiar with the operations of the
Corporation and have obtained or had an opportunity to obtain all information
regarding its operations, financial condition and other matters as would allow
me to make a fully informed investment decision with respect to the acquisition
of the Stock.
"b. I hereby agree that the certificates representing the Stock may
be inscribed with a legend summarizing and giving notice of the representations
and agreements herein and the conditions upon which the Stock will be issued to
me, and that the Corporation may place a stop transfer order against any
transfer of the Stock to avoid any violation of such representations and
agreements.
"c. I hereby confirm that I have been advised that the Stock must be
held by me indefinitely unless they are subsequently registered under the Act or
any exemption from registration is available. I further confirm my understanding
that the Corporation has no obligation to me so to register the Stock or effect
compliance with Regulation A or any other exemption under the Act; and since the
Corporation is not subject to the reporting requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and does
not presently intend to make "publicly available" within the meaning of Release
No. 5223 under the Act, the information referred to in clauses (1) to (14)
inclusive, and clause (16) of paragraph (a)(4) of Rule 15c2-11 under the 1934
Act, it is unlikely that I will
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be able to make any public resale of the Stock under the provisions and within
the limitations specified in Rule 144 or Rule 237 under the Act. If such sales
under either of such Rules should become applicable, however, and should I then
endeavor to make routine sales of the Stock in reliance thereon, I fully
understand that in making such sales I must strictly comply with the limitations
imposed upon the number of Stock that can be sold and with the other terms and
conditions of such Rules as applicable.
"d. I do hereby further agree that the Stock will not be
transferred, pledged, sold or otherwise disposed of unless I shall have complied
with the provisions of this Agreement.
"e. I understand the nature of the investment being made by me and
the financial risks thereof. I agree to indemnify and hold the Corporation and
the Present Shareholders harmless in the event any loss or damage is sustained
by the Corporation or the Present Shareholders as a result of any violation by
me of the provisions of the foregoing representations."
3. STOCK TRANSFER RESTRICTIONS. Except as herein provided, no Qualified
Shareholder shall make any Disposition of any Stock or offer to sell any Stock
without the written consent of the Corporation, or, in the absence of such
written consent, except pursuant to the provisions hereinafter set forth:
a. Any Qualified Shareholder desiring to make a Disposition of Stock
shall first make an offer (the "Offer") to sell such Stock to the Company and to
the remaining Qualified Stockholders.
b. The Offer shall be sent by certified or registered mail, return
receipt requested, to the Corporation and to the remaining Qualified
Stockholders and shall state the number of shares involved. The date of the
Offer
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shall be the date on which a notice containing the Offer has been so sent to all
parties entitled to receive it.
c. The Corporation shall have the option for thirty (30) days
following the date of the Offer to purchase not less than all the Stock offered.
The selling Qualified Shareholder may withdraw the offer as to the Stock at any
time prior to the acceptance thereof by the Corporation.
d. If the Corporation does not exercise its option, the remaining
Qualified Shareholders shall have the option, for thirty (30) days following the
expiration of the Corporation's option, to purchase the Stock offered. Each
remaining Qualified Shareholder electing to purchase the Stock pursuant to the
Offer shall have the right to purchase that proportion of the number of shares
of such Stock which the number of shares of Stock owned by such remaining
Qualified Shareholders bears to the total number of shares of Stock owned by all
remaining Qualified Shareholders electing to purchase. The selling Qualified
Shareholder may withdraw the offer as to the Stock at anytime prior to the
acceptance thereof by the remaining Qualified Shareholders.
e. The price per share to be paid upon the purchase of the Stock
under paragraph 3(c) and 3(d) shall be the nearest date (to the date of the
Offer) of the evaluation of the Stock, made by Xxxxxxxxx, Nehaus & Co.,
Incorporated, an investment banking firm in Houston, Texas, or any other
comparable investment banking firm selected by the Corporation.
f. The closing shall be sixty (60) days from the date of the Offer.
The purchase price determined under Paragraph 3(e) of the Stock being acquired
by each purchaser shall be paid by certified or cashier's check upon the
closing. Such check shall be actually delivered to the selling party or sent by
certified or registered mail, return receipt requested, to the address of the
selling party.
g. The Corporation and the remaining Qualified Shareholders shall
exercise their options to purchase the
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Stock hereunder by actual delivery to the selling party of a written notice of
intent to purchase such Stock or by sending such notice by certified or
registered mail, return receipt requested, properly stamped and addressed to the
address of the selling party. Upon the exercise of an option, the purchaser
shall be obligated to make payment as provided in Paragraph 3(f).
h. In the event that the aforementioned sale of Stock is unable to
be consummated under the aforestated terms, then the selling Qualified
Shareholder desiring to make a Disposition of his Stock may make written notice
to the Corporation that sale of his Stock has not been consummated by the
foregoing Offers and the Corporation shall then be obligated to purchase the
Stock under the terms of sale and purchase price of such Stock as provided in
this Agreement in Section 3 above. If such a sale is made, however, to a
remaining Qualified Stockholder, the transferee shall accept such Stock subject
to all the restrictions, terms and conditions contained in this Agreement. In no
case shall any share be transferable or assignable except to the Corporation or
a remaining Qualified Shareholder, as aforesaid.
4. SALE OF STOCK UPON DEATH OF QUALIFIED SHAREHOLDER.
Upon the death of a Qualified Stockholder, the Corporation shall be
obligated to purchase all of the decedent's Stock, and such deceased Qualified
Shareholder's spouse and executor or administrator shall be obligated to sell
such Stock to the Corporation. Such sale shall be consummated within six (6)
months after the date of death of the deceased Qualified Shareholder. The price
per share at which such Stock shall be purchased shall be an amount of the
purchase price determined as provided in Paragraph 3(e) and payable as provided
in Paragraph 3(f) hereof.
5. DISPOSITION UPON TERMINATION OF MARITAL RELATIONSHIP. If the marital
relationship of a Qualified Shareholder is
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terminated by death or divorce and such Qualified Shareholder does not succeed
to his spouse's community interest in the Stock, the Qualified Shareholder shall
be required to purchase all of the spouse's interest in the Stock, and the
spouse or the executor or administrator of the decedent's estate shall be
obligated to sell such Stock, at the price per share determined under Paragraph
2(e). Such purchase must be exercised and consummated within ninety (90) days
after such death or divorce. Should such Qualified Shareholder fail to
consummate the purchase within such ninety (90) day period, such failure shall
constitute an Offer and the provisions of Paragraph 3(c) through 3(h) shall
apply. The date of the Offer shall be the 91st day after such death or divorce.
Provided, however, if the surviving spouse is an employee of the Corporation at
the time the marriage is terminated, such spouse may retain the Stock subject to
the provisions of this Agreement.
6. DISPOSITION UPON TERMINATION OF EMPLOYMENT. If a Qualified Shareholder
becomes totally disabled to continue his employment, or if the employment of a
Qualified Shareholder is voluntarily or involuntarily terminated for any reason
other than death, such total disability or termination, for purposes of this
Section 6 only, shall be considered an Offer and, after written notice of the
total disability or termination of employment of such Qualified Shareholder is
sent to or by the Corporation by certified or registered mail, return receipt
requested, the provisions of Paragraphs 3(a) through 3(h) shall apply. The date
such written notice is deposited in the mails shall be the date of the Offer.
7. INVOLUNTARY DISPOSITION. Prior to any involuntary disposition of Stock,
the Qualified Shareholder who owns such Stock or their representative shall send
written notice thereof by certified or registered mail, return
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receipt requested, disclosing in full to the Corporation and the other Qualified
Shareholders the nature and details of such involuntary disposition and the
Corporation shall have the option to purchase any such Stock for ninety (90)
days after the sending of such written notice. The other Qualified Shareholders
shall have an option for thirty (30) days after the expiration of the
Corporation's option to purchase in the proportions set forth in Paragraph 3(d)
any Stock not purchased by the Corporation. The price per share to be paid upon
exercise of such options shall be an amount equal to the purchase price
determined as provided in Paragraph 3(e) and payable as provided in Paragraph
3(f), and such options shall be exercisable as provided in Paragraph 3(g). In
the event the other Qualified Shareholders do not purchase all of said Stock,
then the Corporation shall purchase all remaining Stock as provided in Paragraph
3(h).
8. ENDORSEMENT ON STOCK CERTIFICATES. The Certificates evidencing shares
of the Stock in the Corporation owned by the Qualified Shareholders shall be
endorsed as follows:
"This certificate is transferable only in accordance with the terms
and provisions of that certain Qualified Shareholders Agreement,
dated _______________________, 198__, between XXXXXXX'X MANAGEMENT
CORPORATION, INC., the Qualified Shareholders, and their spouses;
that such Shares are subject to an Agreement among the Qualified
Shareholders of the Corporation and that the Corporation will
furnish to the holder of a certificate without charge upon written
request to the Corporation at its principal place of business or
registered office, a copy of such Qualified Stockholders Agreement.
Said Agreement restricts the sale or transfer of the shares of Stock
evidenced by this certificate and imposes certain obligations with
respect to such sale or transfer, to all of which restrictions and
obligations the holder hereof, by acceptance of this certificate,
assents and agrees."
Such certificates shall be endorsed on the front thereof as follows:
"See restrictions on transfer hereof on reverse side."
Upon termination of this Agreement for any reason, the Corporation
will cause to be issued, in exchange for
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certificates bearing the above legend, new certificates without such
endorsements.
9. NOTICES. In the event a notice or other document is required to be sent
hereunder to the Corporation or to any Qualified Shareholder or spouse of a
Qualified Shareholder, such notice or other document shall be sent by registered
or certified mail, return receipt requested, to the party entitled to receive
such notice or other document at the address reflected below or at such other
address as such party shall request in a written notice sent to the Corporation
and all Qualified Shareholders and spouses of Qualified Shareholders:
Xxxxxxx'x Management Corporation, Inc.
00000 Xxxxxx'x Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Qualified Shareholder: See address beneath signature
10. MISCELLANEOUS PROVISIONS.
a. This Agreement shall be subject to and governed by the laws of
the State of Texas.
b. Whenever the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter, and the number of all
words shall include the singular and plural.
c. This Agreement shall be binding upon the Corporation, the
Qualified Shareholders, the spouses of the Qualified Shareholders and their
heirs, executors, administrators, successors and assigns. The Qualified
Shareholders by the signing hereof direct their personal representatives to open
their Estates promptly in the courts of proper jurisdiction and to execute,
procure and deliver all documents as shall be required to effectuate this
Agreement.
d. This Agreement may be amended from time to time by an instrument
in writing signed by all those who are parties to this Agreement at the time of
such amendment, such instrument being designated on its face as an "Amendment"
to this Agreement.
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e. This Agreement shall terminate automatically upon the bankruptcy
or dissolution of the Corporation, upon the occurrence of any event which
reduces the number of Qualified Shareholders to zero or upon the deaths of all
the Qualified Shareholders. This Agreement may also be terminated by an
instrument in writing signed by all those who are parties to this Agreement.
f. Any Qualified Shareholder who sells all of his Stock shall cease
to be a party to this Agreement and shall have no further rights hereunder.
g. The spouses of the Qualified Shareholders are fully aware of,
understand, and fully consent and agree to the provisions of this Agreement and
its binding effect upon any community property interests they may now or
hereafter own, and agree that the termination of their marital relationship with
any Qualified Shareholder for any reason shall not have the effect of removing
any Stock of the Corporation otherwise subject to this Agreement from the
coverage hereof and that their awareness, understanding, consent and agreements
are evidenced by their signing this Agreement. Any Qualified Shareholder who
marries or remarries shall be obligated to have his spouse sign this Agreement
or an identical agreement.
h. This Agreement shall pertain to and cover any and all shares of
Stock which may hereafter be issued to or held by the Qualified Shareholders.
i. The parties to this Agreement hereby declare that the Stock are
unique chattels and each party to this Agreement shall have all the available
remedies for the violation of this Agreement, including, but not limited to the
equitable remedy of specific performance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in multiple counterparts, each of
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which shall be deemed an original, on this the 29th day of March, l984.
XXXXXXX'X MANAGEMENT
CORPORATION, INC.
By /s/ Xxx Xxxxxx
------------------------
SHAREHOLDERS:
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------------------
Xxxxxx
Xxxxxxx 00000 [ILLEGIBLE]
Xxxxxxx, Xx 00000
/s/ Xxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- ---------------------------
Spouse
Address 4503 Acidia
Xxxxxxxx, Xx 00000
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------- ---------------------------
Spouse
Address 00000 Xxxxx Xxxx Xx.
Xxxxxx, Xx 00000
/s/ Xxxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
----------------------------- ---------------------------
Spouse
Address 3619 Blalock
Xxxxxxx, Xxxxx 00000
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------- ---------------------------
Spouse
Address 0000 Xxxxxxxxx
Xxxxxxx, Tex. 77079
/s/ Xxxxx Xxxx Xxxxxx
----------------------------- ---------------------------
Spouse
Address 000 X. 00xx
Xxxxxxx, Xxxxx 00000
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/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ---------------------------
Spouse
Address 000 Xxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
/s/ Xxxxxx P, Frewin custodian
----------------------------- -------------------------------
Spouse for Xxxxxxx Xxxxxx
Address
/s/ Xxxxxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------------- ---------------------------
Spouse
Address 7030 Stone [ILLEGIBLE]
Xxxxxx, Xxxxx 00000
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
----------------------------- ---------------------------
Spouse
Xxxxxxx Xx 0 Xxx 0000
Xxxxxxxx, Xxxxx 00000
/s/ Xxxxxxxxx Xxxxxxx /s/ Wm. X. Xxxxxxx Xx
----------------------------- ---------------------------
Spouse
Address 0000 Xxx Xxxxxx
Xxxxxx, Xxxxx
00000
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------------------- ---------------------------
Spouse
Address X.X. Xxx 000
Xxxxxxxx, Xx 00000
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxxxxx
----------------------------- ---------------------------
Xxxxxx
Xxxxxxx 00000 Xxxxxxxx
Xxxxxxxx, Xxxxx 00000
/s/ Xxxxxx Xxxxx /s/ Xxxx X. Xxxxx
----------------------------- ---------------------------
Xxxxxx
Xxxxxxx 00000 Bakrest
Xxxxxxx, 00000
/s/ Xxxxxx X. Wiggant /s/ Xxxxxxx X. Wiggant
----------------------------- ---------------------------
Spouse
Address 0000 Xxxxxxxxxx
Xxxx, Xx 00000
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/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- ---------------------------
Spouse
Address 000 Xxxxxxxx Xxxxx
Xxxxx, Xx 00000
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- ---------------------------
Spouse
Address 00000 Xx Xxxxxx
Xxxxxxx, Xx 00000
/s/ XX Xxxx /s/ Xxxxx Xxxx
----------------------------- ---------------------------
Spouse
Address 00 Xxxx Xx.
Xxxxxxx, Xx 00000
/s/ [ILLEGIBLE] /s/ Xxxxxxxx Xxxxxx Xxxxx
----------------------------- ---------------------------
Spouse
Address 0000 Xxxx Xxxx
Xxxx, Xx 00000
/s/ Xxxx Xxxxxx
----------------------------- ---------------------------
Spouse
Address 0000 Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xx 00000
/s/ Xxxxxxx X. Xxxxxxx
----------------------------- ---------------------------
Spouse
Address
/s/ Xxxx X. Xxxxx
----------------------------- ---------------------------
Spouse
Address X.X. Xxx 000
Xxxxxx, Xx 00000
/s/ Xxxxx X. Xxxx /s/ Xxxxxxx X. Xxxx
----------------------------- ---------------------------
Spouse
Address 00000 Xxx Xxx Xx.
Xxxxxx, Xxxxx 00000
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxxxx
----------------------------- ---------------------------
Spouse
Address 000 Xxxxxxxxx Xxx
Xxxx, Xx 00000
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