EXHIBIT 10.28
AGREEMENT FOR PURCHASE OF STOCK
THIS AGREEMENT is made and entered into by and between
MIDCOAST HOLDINGS NO ONE, INC., a Delaware corporation ("Midcoast")
and RAINBOW INVESTMENTS COMPANY, a Texas corporation ("Rainbow").
W I T N E S S E T H:
WHEREAS, Midcoast and Rainbow have agreed to join together for
the purpose of acquiring, owning and operating FIVE FLAGS PIPELINE
COMPANY, A Florida corporation ("Five Flags") which owns certain
pipeline facilities located in Florida; and
WHEREAS, the Parties desire to set forth the terms and
conditions upon which the capital stock of Five Flags is to be
acquired;
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties hereto hereby agree as follows:
ARTICLE I
ACQUISITION OF FIVE FLAGS
Section 1.01. Five Flags Acquisition.
Midcoast and Rainbow shall collectively acquire and own all
the issued and outstanding capital stock of Five Flags which is now
owned by Five Flags Holding Company, a Florida corporation. Said
acquisition shall be in accordance with the terms and conditions of
the Agreement for Purchase and Sale of Stock attached hereto as
Exhibit "A".
Section 1.02. Ownership.
Midcoast shall purchase and own 91.25% of the Five Flags stock
and shall contribute $1,872,450 to acquire said interest. Rainbow
shall purchase and own 8.75% of the Five Flags stock and shall
contribute $179,550 for said interest.
Section 1.03. Issuance of Stock
Midcoast shall hold all issued and outstanding shares of Five
Flags in its name, including the 8.75% owned by Rainbow which shall
be held by Midcoast for the beneficial interest of Rainbow.
Rainbow may upon ten (10) days notice request that all shares
beneficially owned by Rainbow be issued directly into its name.
ARTICLE II
OWNERSHIP AND FINANCING
Section 2.01. Initial Ownership.
The capital stock of Five Flags to be acquired, shall be owned
91.25% by Midcoast and 8.75% by Rainbow. Each Party is responsible
for their proportionate share of the purchase price of the Five
Flags stock.
Section 2.02. Distributions.
Except as provided in Section 2.03 hereof, all Revenue
received from ownership of the stock, including but not limited to
dividends or liquidation of the stock, shall be paid to the Parties
in accordance with their respective ownership interest of Five
Flags stock at the time of distribution.
Section 2.03. Rainbow Priority.
Notwithstanding any provision to the contrary, Rainbow shall
be entitled to receive the first $179,550 which shall be collec-
tively received by the Parties. This provision shall cover all
revenue derived from the ownership of the Five Flags stock,
including but not limited to dividends, liquidation payments, stock
repurchases or sale of the stock. Prior to Rainbow's receipt of
$179,550, Midcoast shall remit to Rainbow, within three days of
receipt, any and all amounts it may receive in connection the
ownership of Five Flags stock. Once Rainbow has received the sum
of $179,550, all future revenues shall be paid to the parties in
accordance with their respective ownership interest of the Five
Flags stock.
ARTICLE III
TRANSFER OR PLEDGE OF FIVE FLAGS STOCK
Section 3.01. Restriction on Transfer.
Except as expressly permitted by this Agreement, no Party
shall have the right to sell, assign, transfer or dispose of all or
any portion of the Five Flags stock owned by the Party without the
written consent of the other Party, such consent not to be
unreasonably withheld.
Section 3.02. Permitted Transfers.
Nothing contained in this Agreement shall prevent:
(a) The transfer by any Party of all of its right, title and
interest in the Five Flags Stock (including indebtedness
thereof) if all of such right, title and interest is
transferred to another corporation, which is an affiliate
of the transferor pursuant to:
(i) a statutory merger or consolidation, or
(ii) a sale of all or substantially all of the assets of
the transferrer provided that such affiliate as-
sumes by operation of law or express agreement with
the other Party all of the obligations of the
transferrer under this Agreement and that no trans-
fer (other than pursuant to a statutory merger or
consolidation wherein all obligations and liabili-
ties of the Party are assumed by the successor
corporation by operation of law) shall relieve the
transferrer of its obligations under the Agreement
without the approval of all Parties to this agree-
ment. Upon such transfer such affiliate shall be
admitted in substitution of the transferrer.
(b) An assignment, pledge or other transfer creating a
security interest (and any transfer made in foreclosure
or other enforcement of such security interest) in all or
any portion of a Party's right, title or interest in the
profits of Five Flags.
Section 3.03. Sale of Five Flags Stock.
a) If any Party receives from an unaffiliated and
unrelated third party (the "Offeror") a bona
fide offer (the "Offer") to purchase all or a
part of their Five Flags stock which they are
willing to accept (the "Selling Party"), the
Selling Party shall submit a copy thereof to
the other party. The other Party shall have
the right of first refusal to purchase the
Five Flags stock on the same terms and condi-
tions by furnishing the Selling Party with
written notice to that effect within fifteen
(15) days of the receipt of the Offer. If
this right is not exercised, the Selling Party
may transfer its Five Flags stock to the
Offeror on the terms and conditions of the
Offer, provided however, the Offeror agrees to
be bound by the terms and conditions hereof.
If for any reason the Selling Party does not
sell its stock in accordance with the terms
and conditions of the Offer, the Selling
Party's stock shall again be subject to the
terms hereof.
b) In the event of a dispute any party may submit
to the others a buy-sell proposal setting
forth the basis on which the initiating Party
would acquire the interest of the non-initiat-
ing Party. If within thirty (30) days after
receipt of notice, the non-initiating Party
elects not to sell its Five Flags Stock to the
initiating Party on the exact terms and condi-
tions offered, then the non-initiating Party
shall be obligated to purchase the initiating
Party's Five Flags Stock on identical terms
and conditions.
ARTICLE IV
GENERAL
Section 4.01. Notices.
(a) Except as provided otherwise herein, all notices,
demands, requests, consents or approvals provided for or
permitted to be given pursuant to this Agreement must be
in writing. Meetings by telephone, shall be with the
Designated Representative listed below. All notices
authorized or required between the parties, and required
by any of the provisions of this Agreement, unless
otherwise specifically provided, shall be given in
writing by personal delivery or by United States mail,
postage or charges prepaid or by telecopier, and ad-
dressed to the party to whom directed at the address set
forth herein; provided, however, in the event the notice
period for any act is ten (10) days or less, such notice
may be given by telephone (confirmed by letter, telex, or
telegram). The originating notice given under any
provision hereof shall be deemed given only when received
by the party to whom such notice is directed, and the
time for such party to give any notice in response
thereto shall run from the date the originating notice is
received. The second or any responsive notice shall be
deemed given when deposited in the United States mail or
with the Western Union Telegraph Company, with postage or
charges prepaid, or when sent by telecopier or by
personal delivery or by telephone (if the act called for
is less than ten (10) days). Each party shall have the
right to change its address at any time, and from time to
time, by giving written notice hereof to all other
parties. The address and designated representative for
each of the parties is as follows:
Venturers Designated Representative
Midcoast Holdings No. One, Inc. Xxx X. Xxxxxxx
1100 Louisiana, Suite 3030 (713) 650-8900
Xxxxxxx, Xxxxx 00000
Rainbow Investments Company Xxxxx X. Xxxxxx
P.O. Box 1050 (000) 000-0000
Xxxxxx Xxxxxxx, XX 00000
Except as provided elsewhere here, all notices, demands,
requests, consents and approvals to be sent to Midcoast
and/or Rainbow pursuant hereto shall be deemed to have
been properly given or served by depositing same in the
United States mail, addressed, postage prepaid, and
registered or certified with return receipt requested at
the above designated addresses or at such other address
as any party may hereinafter designate.
(b) No transferee of any interest shall be entitled to
receive a notice independent of the notice sent to the
Party making such transfer. A notice sent or made to a
Party shall be deemed to have been sent and made to all
transferrees, if any, of such Party.
(c) All payments to be made pursuant hereto to any Party
shall be made at the address set forth above for such
Party or at such other address as may be designated by a
Party upon written notice.
Section 4.02. Governing Laws.
This Agreement and the obligations hereunder shall be
interpreted, construed and enforced in accordance with the laws of
the State of Texas.
Section 4.03. Entire Agreement.
This Agreement contains the entire agreement between the
parties hereto relative to the acquisition of the Five Flags Stock.
No variations, modifications, or changes herein or hereof shall be
binding upon any party hereto unless set forth in a document duly
executed by or on behalf of all parties.
Section 4.04. Waiver.
No consent or waiver, expressed or implied, by a Party to any
breach or default by the other in the performance of its obliga-
tions hereunder, shall be deemed or construed to be a consent or
waiver to any other breach or default in the performance by such
other party. Failure on the part of any Party to complain of any
act of the other Party in default, irrespective of how long such
failure continues, shall not constitute a waiver of such Party of
its rights hereunder.
Section 4.05. Headings.
The headings used in this Agreement are for convenience only
and do not constitute substantive matter to be considered in
construing the terms of this Agreement.
Section 4.06. Counterparts.
This Agreement may be executed in multiple counterparts, each
of which shall be an original, but all of which shall be deemed to
constitute one instrument.
Section 4.07. Binding Agreement.
Subject to the restrictions on transfer and encumbrances set
forth herein, this Agreement shall inure to the benefit of and be
binding upon the undersigned Parties and their respective heirs,
executors, legal representatives, successors and assigns.
Whenever, in this instrument, a reference to any party is made,
such reference shall be deemed to include a reference to the heirs,
executors, legal representatives, successors and assigns of such
party.
Section 4.08. Amendment.
This Agreement may be amended or modified from time to time
but only by a written instrument executed by those Parties then
collectively owning all the issued and outstanding Five Flags
Stock.
IN WITNESS WHEREOF, this Agreement is executed as of, and
shall be deemed effective as of, _______________________1995.
ATTEST: MIDCOAST HOLDINGS NO. ONE, INC.
___________________ By:______________________
Xxx X. Xxxxxxx
President
RAINBOW INVESTMENTS COMPANY
___________________ By:_______________________
Xxxxx X. Xxxxxx,
Vice President
AGR-STK
