EXHIBIT 2
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of the _____ day of May, 2005, by and between Xxxxxx
Xxxx Xx., trustee of the Xxxxxx Xxxx Xx Revocable Trust UA
03/24/82 (the "Seller"), and Xxxxxx X. Xxxx, as trustee of the
Third Amended and Restated Xxxxxx Xxxxxx Xxxx Revocable Trust
dated August 18, 1982 and as trustee of the Xxxx Xxxxxxxx Xxxx
Trust dated October 24, 1991, and Xxxxx X. Xxxx, as trustee of
the Xxxxx X. Xxxx Revocable Trust dated January 31, 2002
(together with Xxxxxx X. Xxxx, the "Purchasers"). The Seller
and the Purchasers are referred to collectively herein as the
parties.
WHEREAS, the Seller holds certain shares of Common Stock of
SJW Corp., a California corporation (the "Company"), including
without limitation 440,000 shares of Common Stock represented by
stock certificate number SFU5958 (the "Certificate").
WHEREAS, the Seller desires to sell one hundred forty
thousand (140,000) shares of Common Stock of the Company (the
"Shares") to the Purchasers and the Purchasers desire to
purchase the Shares from the Seller at a price of $36.00 per
Share.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the parties
hereto agree as follows:
1. Sale of Shares. On the terms and subject to the conditions
set forth in this Agreement, upon execution of this Agreement,
the Seller shall sell and deliver to each of the Purchasers, and
each of the Purchasers shall purchase and accept from the
Seller, the number of Shares set forth opposite the name of each
of the Purchasers on Exhibit A hereto for $36.00 per Share and
for the aggregate purchase price of $5,040,000.00 (the "Purchase
Price").
2. Closing. Upon execution of this Agreement, the Purchasers
shall deliver to the Seller the Purchase Price by wire transfer
of immediately available funds to Seller in accordance with the
wire instructions set forth on Exhibit B hereto, and the Seller
shall deliver to the Purchasers the Certificate representing the
Shares, accompanied by a duly executed stock transfer power
authorizing the transfer of the number of Shares purchased by
each Purchaser to such Purchaser, as set forth on Exhibit A
hereto.
3. Representations and Warranties of Seller. The Seller hereby
represents and warrants to the Purchasers that:
3.1 Requisite Power and Authority. The Seller has all
necessary power and authority to execute and deliver this
Agreement and to carry out its provisions. All action on the
Seller's part required for the execution and delivery of this
Agreement has been taken. Upon its execution and delivery, this
Agreement will be valid and binding obligations of the Seller,
enforceable in accordance with its terms, except (a) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of
creditors' rights, and (b) as limited by general principles of
equity that restrict the availability of specific performance,
injunctive relief or other equitable remedies.
3.2 Title to Shares. The Seller owns of record and
beneficially all of the Shares, free and clear of all liens,
encumbrances and third party claims of any kind and any other
security interest or preferential arrangement of any kind
(collectively, the "Liens"). Good, marketable and unencumbered
title to the portion of the Shares to be acquired by each of the
Purchasers shall pass to such Purchaser upon consummation of the
transactions contemplated hereby and such Shares shall be free
and clear of all Liens.
3.3 Compliance with Other Instruments. The execution,
delivery and performance by the Seller of this Agreement does
not, and the consummation of the transactions contemplated
hereby will not, (i) conflict with or result in any violation of
any law, regulation or rule, or any order of, or any restriction
imposed by, any court or other governmental agency applicable to
the Seller, or (ii) conflict with or result in a breach of or
constitute a default (or an event which might, with the passage
of time or the giving of notice or both, constitute a default)
under any of the terms, conditions or provisions of any
agreement or instrument to which the Seller is a party or by
which Seller or any of Seller?s assets or the Shares may be
bound or affected.
3.4 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of the Seller is required in
connection with the execution, delivery or performance of this
Agreement by the Seller or the consummation by Seller of the
transactions contemplated hereby.
3.5 Litigation. There are no losses, actions, suits,
proceedings, claims, complaints, disputes, arbitrations or
investigations (collectively, "Claims") pending or, to the
knowledge of Seller, threatened, at law, in equity, in
arbitration or before any governmental authority affecting for
Shares or the Seller's rights thereto or the Seller's ability to
consummate the transactions contemplated by this Agreement.
3.6 Broker's, Finder's or Similar Fees. There are no
brokerage commissions, finder's fees or similar fees or
commissions payable by Seller in connection with the
transactions contemplated hereby.
4. Representations and Warranties of the Purchaser. Each of
the Purchasers hereby represents and warrants with respect to
himself or herself only to the Seller that:
4.1 Requisite Power and Authority. Such Purchaser has all
necessary power and authority to execute and deliver this
Agreement and to carry out its provisions. All action on such
Purchaser's part required for the execution and delivery of this
Agreement has been taken. Upon its execution and delivery, this
Agreement will be valid and binding obligations of such
Purchaser, enforceable in accordance with its terms, except (a)
as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting
enforcement of creditors' rights, and (b) as limited by general
principles of equity that restrict the availability of specific
performance, injunctive relief or other equitable remedies.
4.2 Compliance with Other Instruments. The execution,
delivery and performance by such Purchaser of this Agreement
does not, and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in any violation of
any law, regulation or rule, or any order of, or any restriction
imposed by, any court conflict with or result in a breach of or
constitute a default (or an event which might, with the passage
of time or the giving of notice or both, constitute a default)
under any of the terms, conditions or provisions of any
agreement or instrument to which such Purchaser is a party or by
which such Purchaser's assets may be bound or affected.
4.3 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation,
declaration or filing with, any federal, state or local
governmental authority on the part of such Purchaser is required
in connection with the execution, delivery or performance of
this Agreement by such Purchaser or the consummation by such
Purchaser of the transactions contemplated hereby.
4.4 Litigation. There are no Claims pending or, to the
knowledge of such Purchaser, threatened, at law, in equity, in
arbitration or before any governmental authority affecting such
Purchaser's ability to consummate the transactions contemplated
by this Agreement.
4.5 Broker's, Finder's or Similar Fees. There are no
brokerage commissions, finder's fees or similar fees or
commissions payable by such Purchaser in connection with the
transactions contemplated hereby.
4.6 Accredited Investor. Such Purchaser is an "accredited
investor" as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
4.7 Investment Intent. Such Purchaser is purchasing the
Shares for his or her own account, for investment purposes only
and has no current arrangements or understandings for the resale
or distribution to others and will only resell such Shares or
any part thereof pursuant to a registration or an available
exemption under applicable law.
4.8 Restrictions on Transfer. Such Purchaser acknowledges
that the offer and sale of the Shares have not been registered
under the Securities Act or the securities laws of any state or
other jurisdiction, and that the Shares are being offered and
sold pursuant to an exemption from registration contained in the
Securities Act, and cannot be disposed of unless they are
subsequently registered under the Securities Act and any
applicable state laws or an exemption from such registration is
available.
4.9 Access to Information. Such Purchaser has had an
opportunity to discuss the Company's business, management and
financial affairs with the Company's management and the
opportunity to inspect Company facilities and such books and
records and material contracts as such Purchaser deemed
necessary to its determination to purchase the Shares.
4.10 Offer and Sale. Such Purchaser was not offered or
sold the Shares, directly or indirectly, by means of any form of
general solicitation or general advertisement, including (i)
any advertisement, article, notice or other communication
published in any newspaper, magazine or similar medium or
broadcast over television or radio or (ii) any seminar or other
meeting whose attendees had been invited by general solicitation
or general advertising.
5. Legends. Seller and the Purchasers agree to jointly request
that the Company cause the certificates representing the Shares
acquired by the Purchasers to bear a legend substantially
similar to the legend set forth below in addition to any other
legend that may be required by applicable law, by the Articles
of Incorporation or Bylaws of the Company, as the same may be
amended from time to time:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND REGISTRATION
OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS, OR (B)
IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND REGISTRATION OR
QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS."
6. Miscellaneous.
6.1 Binding Effect; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. This Agreement
shall be governed and interpreted under the laws of the State of
California without regard to principles of conflict of laws.
6.2 Nondisclosure. Neither the Purchasers nor the Seller
shall issue any press release or make any other public
disclosure (including disclosure to public officials) with
respect to this Agreement or the transactions contemplated by
this Agreement, except as required by law, without the prior
approval of the other party, which approval shall not be
unreasonably withheld.
6.3 Notice. Unless otherwise provided, any notice under
this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be
notified, (b) upon confirmation of receipt by fax by the party
to be notified, (c) one business day after deposit with a
reputable overnight courier, prepaid for overnight delivery and
addressed as set forth below, or (d) three days after deposit
with the United States Post Office, postage prepaid, registered
or certified with return receipt requested and addressed to the
party to be notified at the address indicated below, or at such
other address as such party may designate by 10 days' advance
written notice to the other party given in the foregoing manner.
If to the Purchaser, as set forth on Exhibit A.
If to Seller:
Xxxxxx Xxxx Xx., trustee of the Xxxxxx Xxxx Xx.
Revocable Trust UA 03/24/82
c/o Xxxxxx Xxxx Manufacturing Company
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax: ----------------
6.4 Amendments. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this
Agreement shall be effective against any party hereto unless
such modification, amendment or waiver is approved in writing by
each party hereto. The failure of any party to enforce any of
the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of
this Agreement in accordance with its terms.
6.5 Failure to Pursue Remedies. The failure of any party
to seek redress for violation of, or to insist upon the strict
performance of, any provision of this Agreement shall not
prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original
violation.
6.6 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, including
counterparts transmitted by telecopier or telefax, each of which
when so executed and delivered shall be taken to be an original;
but such counterparts shall together constitute one and the same
document.
6.7 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings.
6.8 Third Party Beneficiary. The Purchasers agree that the
Company may rely upon the representations and warranties of the
Purchasers in Sections 4.6, 4.7, 4.8, 4.9 and 4.10.
(This space intentionally left blank.)
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of
the date first stated above.
SELLER:
------
/s/ Xxxxxx Xxxx Xx.
------------------------
Xxxxxx Xxxx Xx., trustee of the Xxxxxx Xxxx Xx
Revocable Trust UA 03/24/82
PURCHASER:
---------
/s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx, as trustee of the Third
Amended and Restated Xxxxxx Xxxxxx
Xxxx Reovcable Trust dated August 18, 1982
/s/ Xxxxx X. Xxxx
------------------------
Xxxxx X. Xxxx, as trustee of the Xxxxx X.
Xxxx Revocable Trust dated January 31,
2002
/s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx, as trustee of the Xxxx Xxxxxxxx
Xxxx Trust dated October 24, 1991
EXHIBIT A
Purchaser and Notice Information Shares
-------------------------------- ------
Xxxxxx X. Xxxx, as trustee of the Third 80,000
Amended and Restated Xxxxxx Xxxxxx Xxxx
Revocable Trust dated August 18, 1982
c/o Xxxxxx Xxxx Manufacturing Company
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000.000.0000
Xxxxx X. Xxxx, as trustee of the Xxxxx X. Xxxx 20,000
Revocable Trust dated January 31, 2002
c/o Xxxxxx Xxxx Manufacturing Company
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000.000.0000
Xxxxxx X. Xxxx, as trustee of the Xxxx Xxxxxxxx 40,000
Xxxx Trust dated October 24, 1991
c/o Xxxxxx Xxxx Manufacturing Company
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000.000.0000
