STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 30, 1998 (the
"Agreement"), between XXXXXXX INDUSTRIES, INC., a Delaware corporation
("Parent"), XXXXXXX ACQUISITION CORP., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the stockholder of XXXXXXXX
INDUSTRIES, INC., a Delaware corporation (the "Company"), whose name
appears on the signature page hereto (the "Stockholder").
RECITALS
WHEREAS, the Stockholder own shares (the "Shares") of the Company's
common stock, par value $.10 per share ("Company Common Stock"), which,
together with shares of Company Common Stock being purchased by Merger Sub
on the date hereof, represent more than 50% of the issued and outstanding
Company Common Stock;
WHEREAS, Merger Sub desires to purchase the Shares and the Stockholder
desires to sell the Shares, in each case, upon the terms and subject to the
conditions herein; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Sub and the Company are entering into an Amended
and Restated Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into the Company.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
1. Purchase and Sale of Shares.
(a) Subject to the terms and conditions set forth in this Agreement
and in reliance upon the representations and warranties of the Stockholder
set forth below, on the date hereof Merger Sub shall purchase from the
Stockholder and the Stockholder shall sell to Merger Sub, the number of
Shares set forth opposite the Stockholder's name on Schedule 1 hereto, free
and clear of all mortgages, pledges, security interests, encumbrances,
liens (statutory or other), conditional sale agreements, claims, charges,
limitations or restrictions ("Liens"). The aggregate purchase price for
the Shares being sold by the Stockholder (the "Purchase Price") shall be
the cash amount set forth opposite the Stockholder's name on Schedule 1
hereto.
(b) The purchase and sale referred to in Section 1(a) shall be
effected on the date hereof by the Stockholder delivering to Merger Sub
stock certificate(s) evidencing the Shares being purchased by Merger Sub
from the Stockholder, duly endorsed for transfer, against delivery by
Parent to the Stockholder of the Purchase Price for such Shares. Payment
of the Purchase Price shall be made by wire transfer of immediately
available funds to the Stockholder to the account or accounts set forth
opposite the Stockholder's name on Schedule 1 hereto.
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2. Representation and Warranties of Parent and Merger Sub. Parent
and Merger Sub represent and warrant to the Stockholder as follows:
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Merger Sub is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
(b) Parent and Merger Sub have the requisite corporate power and
authority to enter into this Agreement and to carry out their obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by Parent's Board of Directors and by Merger Sub's Board of
Directors and no other corporate proceedings on the part of Parent or
Merger Sub are necessary to authorize this Agreement and the consummation
of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Parent and Merger Sub and (assuming the valid
authorization, execution and delivery of this Agreement by the Stockholder)
is a valid and binding obligation of Parent and Merger Sub, enforceable in
accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Parent and Merger
Sub does not, and the performance of this Agreement by Parent and Merger
Sub will not, (i) conflict with or violate the Certificate of Incorporation
or By-Laws of Parent, Merger Sub or any of Parent's subsidiaries, (ii)
conflict with or violate any federal, state, local or foreign law, statute,
ordinance, rule, regulation, permit, order, judgment or decree
(collectively, "Laws") applicable to Parent, Merger Sub or any of Parent's
subsidiaries or by which any of their respective properties is bound, or
(iii) conflict with, result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or require payment under, or result in the creation of
any Lien on any of the properties or assets of Parent, Merger Sub or any of
Parent's subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
or obligation to which Parent, Merger Sub or any of Parent's subsidiaries
or any of their respective properties is bound, except for any thereof that
could not reasonably be expected to materially impair the ability of Parent
and Merger Sub to perform their obligations hereunder or to consummate the
transactions contemplated hereby.
(d) The execution and delivery of this Agreement by Parent and Merger
Sub does not require Parent or Merger Sub to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to,
any governmental or regulatory authority, domestic or foreign
("Governmental Entity"), based on the Laws of any Governmental Entity,
except where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, could not reasonably
be expected to materially impair the ability of Parent and Merger Sub to
perform their obligations hereunder or to consummate the transactions
contemplated hereby.
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(e) There is no suit, action, investigation or proceeding pending or,
to the knowledge of the executive officers of Parent, threatened against
Parent, Merger Sub or any of Parent's subsidiaries at law or in equity
before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, or before any arbitrator of any kind, that could reasonably be
expected to materially impair the ability of Parent and Merger Sub to
perform their obligations hereunder or to consummate the transactions
contemplated hereby, and there is no judgment, decree, injunction, rule or
order of any court, governmental department, commission, board, bureau,
agency, instrumentality or arbitrator to which Parent, Merger Sub or any of
Parent's subsidiaries is subject that could reasonably be expected to
materially impair the ability of Parent and Merger Sub to perform their
obligations hereunder or to consummate the transactions contemplated
hereby.
3. Representation and Warranties of the Stockholder. The
Stockholder represents and warrants to Parent and Merger Sub as follows:
(a) If the Stockholder is a corporation, partnership or trust, the
Stockholder has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization and, if the
Stockholder is a trust, then (i) such Stockholder is a qualified subchapter
S trust within the meaning of Section 1361(d)(3) of the Internal Revenue
Code of 1986, as amended (the "Code") and (ii) a beneficiary of such
Stockholder, or the legal representative of a beneficiary of such
Stockholder, has made a valid election pursuant to Section 1361(d)(2) of
the Code to have Section 1361(d) of the Code apply to such Stockholder.
(b) If the Stockholder is a corporation, partnership or trust, the
Stockholder has all necessary corporate, partnership or trust power and
authority (including, if necessary, authority of the beneficial owner of
the Shares) to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. If the
Stockholder is a corporation, partnership or trust, the execution, delivery
and performance of this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary corporate, partnership or trust action on the
part of the Stockholder and, if necessary, the beneficial owner of the
Shares.
(c) This Agreement has been duly executed and delivered by the
Stockholder and (assuming the valid authorization, execution and delivery
of this Agreement by Parent and Merger Sub) is a valid and binding
obligation of the Stockholder and, if necessary, the beneficial owner of
the Shares, enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights generally
and general equitable principles (whether considered in a proceeding in
equity or at law).
(d) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will
not, if the Stockholder is a corporation, partnership or trust, conflict
with or violate the Certificate of Incorporation or By-Laws, or other
organizational documents, of the Stockholder.
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(e) There is no suit, action, investigation or proceeding pending or,
to the knowledge of the Stockholder, threatened against the Stockholder at
law or in equity before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind,
that could reasonably be expected to materially impair the ability of the
Stockholder to perform its obligations hereunder or to consummate the
transactions contemplated hereby, and there is no judgment, decree,
injunction, rule or order of any court, governmental department,
commission, board, bureau, agency, instrumentality or arbitrator to which
the Stockholder is subject that could reasonably be expected to materially
impair the ability of the Stockholder to perform its obligations hereunder
or to consummate the transactions contemplated hereby.
(f) The Shares set forth opposite the Stockholder's name on Schedule 1
are owned of record and beneficially by the Stockholder. Except for shares
of Company Common Stock owned by the Company's Employee Stock Ownership
Plan, the Stockholder does not own, of record or beneficially, any
warrants, options or other rights to acquire any shares of Company Common
Stock. The Stockholder has good and valid title to the Shares set forth
opposite the Stockholder's name on Schedule 1, free and clear of all Liens.
(g) The Stockholder has duly completed and executed a Form W-9, a copy
of which is attached hereto as Schedule 2, and has delivered such completed
and executed Form W-9 to Merger Sub.
4. Further Assurances; Expenses. Parent and Merger Sub agree,
simultaneously with the execution of this Agreement, to execute and enter
into that certain Amended and Restated Agreement and Plan of Merger, dated
as of the date hereof, among Parent, Merger Sub and the Company. From time
to time, at the other party's reasonable request and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary
or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement. The
Stockholder agrees, upon the request of Parent, to reimburse Parent for the
Stockholder's proportionate share (based upon the percentage of the total
outstanding shares of Company Common Stock owned by the Stockholder) of the
expenses incurred by the Company for all services rendered, and expenses
advanced by the accountants, attorneys and financial advisors for the
Company, the Company's Employee Stock Ownership Plan and the Company's
Management Stock Ownership Plan, in connection with the Merger prior to the
Closing Date to the extent that such expenses shall exceed $800,000.
5. Survival. The covenants of the parties hereto, and the
representations and warranties of the parties hereto, shall survive the
purchase and sale of the Shares pursuant to this Agreement.
6. Miscellaneous. (a) This Agreement (i) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof
(including, if applicable, the Amended and Restated Voting Agreement dated
as of August 6, 1998 to which the Stockholder is a party) and (ii) shall
not be assigned by operation of law or otherwise.
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(b) This Agreement may not be amended or supplemented, except upon the
execution and delivery of a written agreement executed by the parties
hereto. Parent, Merger Sub or the Stockholder may, from time to time,
waive, on such terms and conditions as Parent, Merger Sub or the
Stockholder, as the case may be, may specify in such instrument, any of the
requirements of this Agreement. Any such amendment shall be binding upon
the parties thereto and any such waiver shall be binding upon Parent,
Merger Sub or the Stockholder, as the case may be, executing the same. No
such waiver shall extend to any subsequent or other event or circumstance
or impair any right consequent thereon.
(c) All notices and other communications hereunder shall be in writing
and shall be deemed given (i) on the date delivered, if delivered
personally, (ii) on the first business day following the deposit thereof
with Federal Express, if sent by Federal Express, and (iii) on the fourth
business day following the mailing thereof with postage prepaid, if mailed
by registered or certified mail (return receipt requested), in each case to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to the Stockholder, to it at its address set forth on
Schedule 1; and
(ii) if to Parent or Merger Sub, to Parent at:
Xxxxxxx Industries, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Vice President, General Counsel and
Secretary
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxx, Esq.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(e) This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original, but both of which shall constitute
one and the same Agreement.
(f) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
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(g) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy,
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have caused
this Agreement to be duly executed as of the day and year first above
written.
XXXXXXX INDUSTRIES, INC.
By:
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Name:
Title:
XXXXXXX ACQUISITION CORP.
By:
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Name:
Title:
STOCKHOLDER:
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