EXHIBIT 7.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated November 29,
2004, is made by and among Energy Spectrum Partners LP, a Delaware limited
partnership ("Seller") and the purchasers (the "Purchasers") listed on Schedule
1.1 hereto with respect to the Common Stock of Xxxxx-Xxxxxxxx Corporation, a
Delaware corporation (the "Company").
RECITALS
WHEREAS, Seller proposes to sell to Purchasers, and Purchasers desire
to purchase from the Seller, shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), on the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. PURCHASE.
1.1 PURCHASE AND SALE OF STOCK. Subject to the terms and conditions of
this Agreement, Seller will sell to each Purchaser, and each Purchaser severally
agrees to purchase from Seller, the number of shares of the Company's Common
Stock (the "Shares") set forth with respect to such Purchaser on Schedule 1.1
hereto, at a price per share equal to $3.00 per share. The closing (the
"Closing") of the sale of the Shares shall be effected via facsimile currently
with the execution and delivery of this Agreement. At the Closing, each
Purchaser shall deliver the full amount of such Purchaser's aggregate purchase
price by wire transfer of immediately available funds to Seller's bank account,
and Seller shall promptly send to the Company's transfer agent certificates,
assignments and instructions sufficient to transfer the Shares into the names of
the Purchasers. Funds shall be wired to Seller's bank account at:
Bank One, Texas NA
ABA #000000000
For Credit to Energy Spectrum Partners, LP
Account #1823413297
1.2 LEGENDS. All certificates representing the Shares shall bear the
following legend (in addition to any legend required by the blue sky or
securities laws of any state or jurisdiction to the extent such laws are
applicable to the shares represented by the certificate so legended):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
1.3 STOP TRANSFER ORDERS. All certificates representing the Shares will
be subject to a stop transfer order with the Company's transfer agent that
restricts the transfer of such shares except in compliance with this Agreement
and applicable law.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby makes the
following representations and warranties to the Purchasers:
2.1 ORGANIZATION, ETC. The Seller is duly organized and validly
existing and in good standing under the laws of the State of Delaware.
2.2 AUTHORITY; TITLE. The Seller has the partnership power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The sale of the Shares has been duly authorized and if, as and when
delivered to the Purchasers, the Shares will be free of any Encumbrance (as
defined below), other than those imposed pursuant to or contemplated by this
Agreement and securities laws of general application. As used in this Agreement,
"Encumbrance" shall mean any claim, lien, pledge, option, charge, easement,
security interest, deed of trust, mortgage, conditional sales agreement,
encumbrance or other right of third parties, whether voluntarily incurred or
arising by operation of law, and includes, without limitation, any agreement to
give any of the foregoing in the future, and any contingent sale or other title.
1
2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by the Seller and constitutes a legal, valid and binding agreement and
obligation of the Seller enforceable against it in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect generally relating to or affecting creditors'
rights.
2.4 NO VIOLATION. The execution and the delivery by the Seller of this
Agreement and the performance by the Seller of its obligations hereunder,
including the sale of the Shares, does not and will not (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii) constitute a
default under, (iii) result in a violation of, or (iv) require any
authorization, consent or approval not heretofore obtained pursuant to, any
binding written or oral agreement or instrument including, without limitation,
any charter, bylaw, trust instrument, indenture or evidence of indebtedness,
lease, contract or other obligation or commitment (each, a "Contractual
Obligation") binding upon the Seller or any of its subsidiaries or any of their
respective properties or assets, or any law, rule, regulation, restriction,
order, writ, judgment, award, determination, injunction or decree of any court
or government, or any decision or ruling of any arbitrator (each, a "Requirement
of Law") binding upon or applicable to the Seller or any subsidiary or any of
their respective properties or assets.
2.5 BROKERS. Seller has not agreed to pay or incurred any obligation in
respect of any finder's fee, brokerage fee or other commission in connection
with the sale of Shares contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each Purchaser, severally and
not jointly, hereby makes the following representations and warranties as to
such Purchaser:
3.1 ORGANIZATION. Purchaser, if not a natural person, is duly organized
and validly existing and in good standing under the laws of the state of its
organization.
3.2 AUTHORITY. Purchaser has the corporate or other authority to
execute and deliver this Agreement and to perform Purchaser's obligations
hereunder.
3.3 ENFORCEABILITY. This Agreement constitutes the legal, valid and
binding obligation of Purchaser and is enforceable against Purchaser in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect generally relating
to or affecting creditors' rights.
3.4 NO VIOLATION. The execution and the delivery by Purchaser of this
Agreement, the purchase of the Shares and the consummation of the transactions
contemplated hereby or to be effected concurrently herewith do not and will not
(a) conflict with or result in a breach of the terms, conditions or provisions
of, (b) constitute a default under, (c) result in a violation of, or (d) require
any authorization, consent or approval not heretofore obtained pursuant to, any
Contractual Obligation or Requirement of Law to which Purchaser is a party or is
otherwise subject.
3.5 BROKERS. Purchaser has not agreed to pay or incurred any obligation
in respect of any finder's fee, brokerage fee or other commission in connection
with the sale of Shares contemplated by this Agreement.
3.6 INVESTMENT INTENT. Purchaser is acquiring the Shares for
Purchaser's own account for investment and not with a view to, or for resale in
connection with, any "distribution" thereof for purposes of the Securities Act
of 1993, as amended (the "Securities Act"). Purchaser is an "accredited
investor" as such term is defined in Regulation D under the Securities Act.
Purchaser acknowledges that the Shares shall be "restricted securities" within
the meaning of Rule 144 ("Rule 144") under the Securities Act, will contain a
transfer restriction legend and may only be resold pursuant to an effective
registration statement filed with the SEC under the Securities Act, or pursuant
to Rule 144 or another valid exemption from the registration requirements of the
Act as established by an opinion of counsel reasonably acceptable to the
Company.
2
3.7 INVESTIGATION. Purchaser represents and warrants that such
Purchaser is familiar with the business of the Company, has conducted such
investigation of the Company's business and affairs as such Purchaser deems
appropriate, and is not relying upon the Seller to provide any information
regarding the Company. Purchaser acknowledges that the Company files reports
with the Securities and Exchange Commission that are publicly available,
including an Annual Report on Form 10-K for the year ended December 31, 2003,
and a Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.
4. REGISTRATION; LOCK UP. Concurrently with the execution and delivery of this
Agreement, each Purchaser who is not a party to that certain Lock Up Agreement
dated August 10, 2004, between the Company and certain stockholders of the
Company, has entered into a Lock Up Agreement with the Company pursuant to which
the Company will agree to use commercially reasonable efforts to register the
Shares under the Securities Act, and the Purchaser thereby agrees to certain
restrictions on the sale of the Shares.
5. MISCELLANEOUS PROVISIONS.
5.1 DELIVERIES. The Seller and Purchasers hereby covenant and agree to
use their respective best efforts to perform each of their obligations
hereunder, to deliver all certificates and to satisfy all other conditions set
forth in this Agreement.
5.2 SUCCESSORS AND ASSIGNS. This Agreement is executed by, and shall be
binding upon and inure to the benefit of, the parties hereto and each of their
respective successors and assigns.
5.3 NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
if to the Purchasers at the address set forth on the signature page
hereof:
if to the Seller at the following address:
Energy Spectrum Partners LP
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx XxXxxxxxx, Esq.
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial overnight courier service; five business days after
being deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged, if telecopied.
5.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart will for all purposes be deemed an
original, and all such counterparts shall constitute one and the same
instrument.
5.5 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware applicable to
contracts entered into and to be wholly performed therein.
5.6 ATTORNEYS' FEES. If any party should institute any action to
enforce or interpret any term or provision of this Agreement, the party
prevailing in such action, after all appeals have been exhausted, shall be
entitled to its attorneys' fees, out-of-pocket disbursements and all other
expenses from the non-prevailing party in such action.
3
5.7 ENTIRE AGREEMENT. This Agreement (together with all Exhibits and
Schedules hereto) constitutes the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous written and oral negotiations, discussions, agreements
and understandings with respect to such subject matter.
5.8 SECTION HEADINGS. The section and subsection headings contained in
this Agreement are included for convenience only and form no part of the
agreement between the parties.
[remainder of page intentionally left blank]
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective representatives hereunto duly authorized as of
the date first above written.
ENERGY SPECTRUM PARTNERS LP,
a Delaware limited partnership
By: Energy Spectrum Capital LP
General Partner
By: Energy Spectrum LLC
General Partner
/s/ Xxxxx X. Xxxxx
----------------------------------
Name
Chief Investment Officer
----------------------------------
Title
PURCHASER PURCHASER - Xxxxxxx Xxxxxxxx P.C.
Profit Sharing Trust dated 10/24/92
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxxx
---------------------------------- -----------------------------------
Signature Signature
Xxxxxx X. Xxxxxxxxxxx Xxxxxxx Xxxxxxxx
---------------------------------- -----------------------------------
Name Name
Trustee
---------------------------------- -----------------------------------
Title Title
Address: Address:
c/o Nederlander Company L.L.C. 00 X. Xxxxx Xxxxxx, Xxx. 0X
0000 Xxxxxxxx, 00xx Xxx. Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
(000) 000-0000 (000) 000-0000
---------------------------------- -----------------------------------
Facsimile Facsimile
5
SCHEDULE 1.1
INVESTORS
NAME NUMBER OF SHARES PURCHASE PRICE
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxxxx Xxxxxxxx P.C. Profit Sharing Trust dated 10/24/92, 30,000 $90,000
Xxxxxxx Xxxxxxxx, Trustee
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxxx X. Xxxxxxxxxxx 100,000 $300,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxx X. XxXxxxxxxxx, Xx. 300,000 $900,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxxx X. Xxxxxxxx 25,000 $75,000
------------------------------------------------------------------- --------------------------- ---------------------
Bestin Worldwide Limited 100,000 $300,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxxxxx X. Pound III 5,000 $15,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxx Xxxxx 5,000 $15,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxx Xxxxxxx 5,000 $15,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxx Xxxxx 12,000 $36,000
------------------------------------------------------------------- --------------------------- ---------------------
Xxxxx Xxxxx 3,000 $9,000
=================================================================== =========================== =====================
TOTAL 585,000 $1,755,000.00
------------------------------------------------------------------- --------------------------- ---------------------
