STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is between XXXXXXX XXXXXXXX
("Buyer") and XXXXXXXXXX INDUSTRIES, INC., an Oregon corporation ("Seller").
Seller is prepared to issue 100,000 shares of its common stock (the
"Shares"). Buyer desires to purchase from Seller and Seller desires to sell to
Buyer the Shares on the terms and subject to the conditions set forth herein.
The transactions contemplated in this Agreement are herein referred to as the
"Purchase."
SECTION 1. PURCHASE OF SHARES AND RELATED MATTERS
1.1 Purchase of Shares. Effective December 22, 1998, and subject to the
terms and conditions set forth herein, at the Closing (as defined below) Seller
will sell all of the Shares to Buyer and Buyer will purchase all of the Shares
from Seller.
1.2 Purchase Price. Buyer will pay to Seller the fair market value for the
Shares. Because of the restrictions on transfer of the shares, the parties have
determined that a 25% discount from the public trading price is the fair market
value. The closing price on December 22, 1998 was $6.9375 per share.
Accordingly, the Purchase Price is $520,312.50.
1.3 Payment of Purchase Price. The entire Purchase Price, without interest,
shall be paid to Seller on or before January 1, 2006.
1.4 Indemnity. As long as Buyer is employed by Seller, Seller shall pay
Buyer an amount equal any federal or state income tax liability for which Buyer
is liable on account of interest imputed because of the deferral of payment of
the Purchase Price. Such sum shall be paid within 30 days of written request to
Seller by Buyer, furnishing such evidence of liability as may reasonably be
required by Seller.
1.5 Repurchase of Shares. During January 2006 Buyer may demand of Seller
that it repurchase the Shares from Buyer for $420,312.50. Upon receipt of such
written demand, within 30 days Seller shall tender the repurchase price to Buyer
who shall simultaneously deliver such certificates and other instruments as may
reasonably be required by Seller to effectuate the transfer of the Shares, free
and clear of any lien or encumbrance to Seller.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this Agreement and purchase
the Shares, Seller represents and warrants that:
2.1 Organization and Corporate Power. Seller is a corporation duly
incorporated, validly existing, and in good standing under the laws of the state
of Oregon.
2.2 Authorization; No Breach. The execution, delivery, and performance of
this Agreement and all other agreements contemplated hereby to which Seller is a
party have been duly authorized by Seller. This Agreement and each other
agreement contemplated hereby, when executed and delivered by the parties
thereto, will constitute the legal, valid, and binding obligation of Seller,
enforceable against Seller, in accordance with its terms except as the
enforceability thereof may be limited by the application of bankruptcy,
insolvency, moratorium, or similar laws affecting the rights of creditors
generally or judicial limits on the right of specific performance.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Seller to enter into this Agreement and sell
the Shares, Buyer hereby represents and warrants to Seller as follows:
3.1 Investment Representations
3.1.1 Buyer is acquiring the Shares for his own account with the
present intention of holding such securities for purposes of investment, and
Buyer has no intention of selling such securities in a public distribution in
violation of the United States securities laws or any applicable state
securities laws. During the course of the negotiation of this Agreement, Buyer
has reviewed all information provided to it by Seller and has had the
opportunity to ask questions of and receive answers from representatives of
Seller concerning Seller, the securities offered and sold hereby, and the
Purchase, and to obtain certain additional information requested by Buyer.
3.1.2 Buyer understands that the Shares cannot be resold in a
transaction to which the Securities Act applies unless subsequently registered
under the Securities Act or an exemption from such registration is available.
Buyer is aware of the provisions of Rule 144 promulgated under the Securities
Act which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions.
3.1.3 Buyer understands that the certificates for the Shares will bear
the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISPOSITION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE SELLER THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
3.2 Brokerage. There are no claims for brokerage commissions, finders'
fees, or similar compensation in connection with the Purchase based on any
arrangement or agreement entered into by Buyer and binding upon Seller.
SECTION 4. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
Each and every obligation of Seller under this Agreement is subject to the
satisfaction, at or before the Closing, of each of the following conditions:
4.1 Representations and Warranties; Performance. Each of the
representations and warranties made by Buyer herein will be true and correct in
all material respects as of the Closing with the same effect as though made at
that time except for changes contemplated, permitted, or required by this
Agreement; Buyer will have performed and complied with all agreements,
covenants, and conditions required by this Agreement to be performed and
complied with by it prior to the Closing.
4.2 No Proceeding or Litigation. No action, suit, or proceeding before any
court or any governmental or regulatory authority will have been commenced and
be continuing, and no investigation by any governmental or regulatory authority
will have been commenced and be continuing, and no action, investigation, suit,
or proceeding will be threatened at the time of Closing, against Seller or Buyer
or any of their affiliates, associates, officers, or directors, seeking to
restrain, prevent, or change the Purchase, questioning the validity or legality
of the Purchase, or seeking damages in connection with the Purchase.
SECTION 5. CLOSING
5.1 Time, Place, and Manner of Closing. Unless this Agreement has been
terminated and the Purchase has been abandoned pursuant to the provisions of
this Agreement, the closing (the "Closing") will be held at the offices of
Xxxxxx & Xxxxxxx, P.C. in Portland, Oregon, or such other place as the parties
may agree, on February 18, 1999, or as soon as practicable after the
satisfaction of the various conditions precedent to the Closing set forth
herein. At the Closing the parties to this Agreement will exchange certificates
and other instruments and documents in order to determine whether the terms and
conditions of this
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Agreement have been satisfied. Upon the determination of each party that its
conditions to consummate the Purchase have been satisfied or waived, Seller
shall deliver to Buyer the certificates evidencing the Shares or a memorandum
thereof, in a manner to be agreed upon by the parties. From time to time after
the Closing, Seller will execute, deliver, and acknowledge all such further
instruments of transfer and conveyance and will perform all such other acts as
Buyer may reasonably request to more effectively transfer the Shares.
5.2 Consummation of Closing. All acts, deliveries, and confirmations
comprising the Closing regardless of chronological sequence shall be deemed to
occur contemporaneously and simultaneously upon the occurrence of the last act,
delivery, or confirmation of the Closing and none of such acts, deliveries, or
confirmations shall be effective unless and until the last of the same shall
have occurred.
SECTION 6. TERMINATION
6.1 Termination for Cause. If, pursuant to the provisions of this
Agreement, Seller or Buyer is not obligated at the Closing to consummate this
Agreement, then the party who is not so obligated may terminate this Agreement.
6.2 Termination Without Cause. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
without further obligation or liability on the part of any party in favor of any
other by mutual consent of Buyer and Seller.
6.3 Termination Procedure. Any party having the right to terminate this
Agreement may terminate this Agreement by delivering to the other party written
notice of termination, and thereupon, this Agreement will be terminated without
obligation or liability of any party in favor of any other party.
SECTION 7. MISCELLANEOUS PROVISIONS
7.1 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified, or supplemented only by a written agreement signed by
Buyer and Seller.
7.2 Waiver of Compliance; Consents
7.2.1 Any failure of any party to comply with any obligation,
covenant, agreement, or condition herein may be waived by the party entitled to
the performance of such obligation, covenant, or agreement or who has the
benefit of such condition, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement, or
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condition will not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
7.2.2 Whenever this Agreement requires or permits consent by or on
behalf of any party hereto, such consent will be given in a manner consistent
with the requirements for a waiver of compliance as set forth above.
7.3 Assignment. This Agreement will not be assigned by a party hereto
without the prior written consent of the other parties hereto. No permitted
assignment will release the assignor from its obligations hereunder. Subject to
the foregoing, this Agreement and all of the provisions hereof will be binding
upon and inure to the benefit of the parties hereto and their respective
successors, assigns, heirs, executors, and personal representatives. Nothing in
the Agreement, express or implied, is intended to confer on any person other
than the parties hereto, or their respective successors, any rights, remedies,
obligations, or liabilities under or by reason of this Agreement.
7.4 Governing Law. All matters with respect to this Agreement, including
but not limited to matters of validity, construction, effect, and performance,
will be governed by the laws of the State of Oregon applicable to contracts made
and to be performed therein between residents thereof, regardless of the laws
that might be applicable under principles of conflicts of law.
7.5 Counterparts. This Agreement may be executed in two or more fully or
partially executed counterparts, each of which will be deemed an original
binding the signer thereof against the other signing parties, but all
counterparts together will constitute one and the same instrument.
7.6 Certain Rules of Construction. The provisions of this Agreement have
been examined, negotiated, and revised by counsel for each party, and no
implication will be drawn against any party hereto by virtue of the drafting of
this Agreement.
7.7 Entire Agreement. This Agreement and any other document to be furnished
pursuant to the provisions hereof embody the entire agreement and understanding
of the parties hereto as to the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to in such documents. This
Agreement and such documents supersede all prior agreements and understandings
among the parties with respect to the subject matter hereof.
7.8 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction will, as to
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such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement, or affecting the validity or enforceability of
any of the terms or provisions of this Agreement.
7.9 Attorney Fees. If any action is brought by any party to this Agreement
to enforce or interpret its terms or provisions, the prevailing party will be
entitled to reasonable attorney fees and costs incurred in connection with such
action prior to and at trial and on any appeal therefrom.
7.10 Payment of Fees and Expenses. Each party to this Agreement will be
responsible for, and will pay, all of its own fees and expenses, including those
of its counsel and accountants, incurred in the negotiation, preparation, and
consummation of the Agreement and the Purchase.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXXXXXXX INDUSTRIES, INC.
By XXXXXX XXXXXXXXX DATE:
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XXXXXX XXXXXXXXX
SENIOR VICE PRESIDENT
XXXXXXX XXXXXXXX DATE:
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XXXXXXX XXXXXXXX
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