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EXHIBIT 2
STOCK PURCHASE AGREEMENT
This Agreement is entered into as of the 24th day of June, 1994 by and
between Xxxxxx & Xxxxxxx Capital Group, Inc., a Delaware corporation (the
"Company"), and Abaco Casa de Bolsa, S.A. de C.V., Abaco Grupo Financiero, a
corporation incorporated under the laws of the United Mexican States ("Abaco").
RECITALS
WHEREAS, Abaco owns a majority of the outstanding shares of capital
stock of the Company; and
WHEREAS, Abaco desires to invest additional funds in the Company in
consideration of additional shares of capital stock of the Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties agree as follows:
1. PURCHASE AND SALE OF SHARES. At the Closing (as hereinafter
defined), the Company shall issue and sell to Abaco, and Abaco shall purchase
from the Company 150 shares of Series A, non-voting preferred, $0.01 par value,
of the Company as further described in Exhibit A hereto (the "Shares"). The
terms, conditions, and agreements relating to the Shares as set forth in
Exhibit A form a part of this Agreement and are binding upon the parties.
2. CONSIDERATION AND PAYMENT. In consideration for the Shares,
Abaco shall pay the Company by bank check or wire transfers the aggregate
amount of U.S.$15,000,000.
3. CLOSING. The purchase and sale of the Shares shall take place
at the offices of the Company, on June 24, 1994, at a mutually agreeable time
(the "Closing"). At the Closing, the Company shall deliver or cause to be
delivered to Abaco, certificates evidencing the Shares, duly issued to Abaco,
and any and all other documents necessary to issue the Shares, and Abaco shall
deliver or cause to deliver to the Company, the purchase price as provided in
Section 2.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Abaco as follows:
A. Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware.
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B. Capitalization. The aggregate number of shares of
capital stock which the Company is authorized to issue is 20,000,000 shares of
common stock, $0.09 par value, __________ of which are presently issued and
outstanding and 5,000,000 shares of preferred stock, $0.01 par value, none of
which are issued or outstanding. The Shares have been duly authorized and when
issued and paid for in accordance with this Agreement will be validly issued,
fully-paid, and non-assessable. The shares of common stock of the Company into
which the Shares are convertible have been duly reserved for such conversion,
and when issued pursuant to such conversion such shares of common stock will be
validly issued, fully paid, and non-assessable.
C. Authority, Execution and Delivery. The Company has
all requisite power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all requisite corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms.
D. Financial Statements. The Company has furnished to
Purchaser the financial statements for the Company as of March 31, 1994, which
statements have been prepared in accordance with generally accepted accounting
principles consistently applied and present fairly the financial position of
the Company as of the date thereof and the results of operations for the
periods covered thereby. The Company further represents and warrants that
there has been no material change in the financial position of the Company
since such date.
E. No Conflict. Except for the authorization of the
listing of the shares of common stock into which the Shares are convertible
prior to such conversion, by the New York Stock Exchange and the filing of a
Certificate of Designations in respect of the Shares with the Secretary of
State of Delaware, no authorization or consent is required in connection with
the execution, delivery, or performance of this Agreement by the Company and
such execution, delivery or performance will not conflict with or result in a
breach of the Company's charter documents or any material instrument or
agreement.
5. REPRESENTATIONS AND WARRANTIES OF ABACO. Abaco hereby
represents and warrants to the Company as follows:
A. Corporate Organization. Abaco is a Mexican
corporation, duly organized, validly existing and in good standing under the
laws of the United Mexican States.
B. No Conflict. Except for approval by Mexican
regulatory authorities, no authorization or consent is required in connection
with the execution, delivery, or performance of this Agreement by the Company
and such execution, delivery or performance
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will not conflict with or result in a breach of the Company's charter documents
or any material instrument or agreement.
C. Authority, Execution and Delivery. Abaco has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all requisite corporate action on the part of Abaco.
This Agreement has been duly executed and delivered by Abaco and constitutes
the legal, valid and binding obligation of Abaco enforceable in accordance with
its terms.
D. Investment Intent. The Shares acquired by Abaco
pursuant to this Agreement, and the shares of common stock which may be
acquired upon conversion of the Shares, will be acquired by Abaco for its own
account and not with a view to, or for resale in connection with, any
distribution of any of the Shares. Abaco acknowledges that it is aware of the
applicable limitations under the Securities Act of 1933, as amended, upon the
subsequent sale of the Shares, or such common shares, as the case may be, and
that accordingly, certificates representing the Shares, or such common shares,
as the case may be, may bear an appropriate legend.
6. CONDITIONS TO CLOSING. The obligations of each of the parties
to consummate the transactions contemplated by this Agreement shall be subject
to the following conditions:
A. Representations and Warranties True. The
representations and warranties of the other party shall be true and accurate in
all material respects as of the Closing Date, as if made on such date.
B. No Litigation. There shall be no order, and no
proceeding or investigation, pending or threatened, restricting or prohibiting
the transactions contemplated by this Agreement.
C. Certificate of Designations. The Company shall file
a Certificate of Designations in respect of the Shares with the Secretary of
State of Delaware.
D. Mexican Regulatory Approvals. All requisite
approvals by Mexican regulatory approvals shall have been obtained.
7. STOCKHOLDER APPROVAL. The Company agrees to call a special
meeting of its stockholders as soon as practicable after the availability of
the annual report for the Company's fiscal year ended June 24, 1994 to approve
the conversion of the Shares into shares of common stock of the Company in
accordance with the terms of the Shares and further agrees to promptly
thereafter cause such common shares to be listed on the New
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York Stock Exchange. Abaco agrees to vote all of the common shares of the
Company held by it for such approval.
8. MISCELLANEOUS PROVISIONS.
A. Amendment, Modification and Waiver. This Agreement
may be amended, modified and supplemented, in writing only, by mutual consent
of the parties hereto. No failure on the part of any party to exercise any
right, power or privilege hereunder shall operate as a waiver.
B. Assignment. The respective rights and obligations of
the Company and Abaco under this Agreement shall not be assignable by either
the Company or Abaco without the prior written consent of the other.
C. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but both of
which together shall constitute one and the same instrument.
D. Entire Agreement. This Agreement including the
exhibit hereto contains the entire understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties, covenants, or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
E. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: XXXXXX & XXXXXXX CAPITAL GROUP, INC.
By:/s/ Xxxxx X. Van De Graaff By:/s/ Xxxxxxx X. Xxxxx
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Title:General Counsel Title:Chief Executive Officer
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ATTEST: ABACO CASA DE BOLSA, S.A. DE C.V.,
ABACO GRUPO FINANCIERO
By:/s/ Xxxx Xxxxx Xxxxxx By:/s/ Xxxxxxx Xxxxxxxxxx
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Title: Title:
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