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EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated July 9,
1999, by and among Xxxx Company, a Wisconsin corporation ("Company"), and Rock
Creek Partners, Ltd., a Florida limited partnership, Xxxxxxx X. Xxxx, SVCC TTEE,
The Xxxx Children's Trust, FBO Xxxxx X. Xxxx U/A/D 12-31-84, Xxxxxxx X. Xxxx,
SVCC TTEE, The Xxxx Children's Trust, FBO Xxxxxxx X. Xxxx U/A/D 12-31-84,
Xxxxxxx X. Xxxx, Trustee, the Xxxxx X. Xxxx Grantor Retained Annuity Trust dated
May 29, 1998 and the Xxxxx X. Xxxx Individual Retirement Account (each
individually a "Shareholder" and together the "Shareholders"), and Xxxxx X. Xxxx
("Xx. Xxxx," and together with the Shareholders, the "Sellers").
RECITALS
A. The Shareholders own an aggregate of 725,900 shares (the
"Shares") of the Company's common stock, $0.10 par value (the "Common Stock"),
as set forth on Exhibit A hereto.
B. The Shareholders are affiliates of Xx. Xxxx and Xx. Xxxx
may be deemed to beneficially own all of the shares pursuant to Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
C. The Company desires to purchase the Shares from the
Shareholders, and the Shareholders and Xx. Xxxx desire to sell the Shares to
Company, upon the terms and conditions herein set forth.
NOW THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree as follows.
1. PURCHASE AND SALE OF SHARES
Pursuant to the terms of this Agreement, each Shareholder
hereby agrees to sell to the Company and the Company hereby agrees to purchase
from each Shareholder the Shares set forth opposite such Shareholder's name on
Exhibit A hereto.
2. PURCHASE PRICE - PAYMENT
2.1. Purchase Price. The purchase price (the "Purchase Price")
payable for the Shares shall be an aggregate of $14,880,950 or $20.50 per Share.
2.2. Payment of Purchase Price; Delivery of Shares. The Purchase Price
will be paid by the Company on July 9, 1999 by wire transfer of immediately
available funds to an account designated by each Shareholder in the amount set
forth opposite such Shareholder's name on Exhibit A hereto. On such date, the
Shareholders shall either cause the appropriate depository to record the Company
as the beneficial owner of the Shares or deliver to the
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Company or its agent stock certificates representing the Shares, duly endorsed
for transfer or with duly executed stock powers attached.
3. SEVERAL REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS AND XX. XXXX
Each Shareholder and, where indicated, Xx. Xxxx makes the
following representations and warranties to the Company but only with respect to
such Shareholder and the Shares owned by such Shareholder or Xx. Xxxx, as the
case may be. Each of these representations and warranties is true and correct on
the date hereof, shall remain true and correct hereafter, shall be unaffected by
any investigation heretofore or hereafter made by the Company and shall survive
the transactions provided for herein.
3.1. Power. Each Shareholder or Xx. Xxxx, as the case may be, has full
power, legal right and authority to enter into, execute and deliver this
Agreement and to carry out the transactions contemplated hereby.
3.2. Authorization. The execution and delivery of this Agreement by Xx.
Xxxx on his own behalf and on behalf of each Shareholder, and each Shareholder's
and Xx. Xxxx'x full performance hereunder, has been duly authorized, and no
other or further act on the part of such Shareholder or Xx. Xxxx is necessary
therefor.
3.3. Validity. This Agreement has been duly and validly executed and
delivered by each Shareholder and Xx. Xxxx and is a legal, valid and binding
agreement of such Shareholder or Xx. Xxxx, as the case may be, enforceable in
accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally,
and by general equitable principles.
3.4. Title and Number of Shares. Each Shareholder is transferring to
the Company good and marketable title to the Shares sold by such Shareholder to
the Company hereunder, free and clear of all mortgages, liens (statutory or
otherwise), security interests, claims, pledges, licenses, equities, options,
conditional sales contracts, assessments, reservations, limitations, or other
charges or encumbrances of any nature whatsoever (collectively, "Liens")
including, without limitation, voting trusts or agreements, proxies, and marital
or community property interests. The Shares are the only securities of the
Company beneficially owned (as such term is defined in Rule 13d-3 under the
Exchange Act) by the Shareholders, Xx. Xxxx and their affiliates.
3.5. No Violation. Neither the execution and delivery of this Agreement
nor the consummation by each Shareholder or Xx. Xxxx, as the case may be, of the
transactions provided for herein will violate or conflict with, or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or will result in the termination of, or accelerate
the performance required by, or result in the creation of any Lien upon the
Shares under, any term or provision of any contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character to which such
Shareholder or
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Xx. Xxxx is a party or by which such Shareholder, Xx. Xxxx or any of the Shares
may be bound or affected.
3.6. Receipt of Information; Reliance. Each Shareholder or Xx. Xxxx, as
the case may be, has had access to, read carefully and considered the various
filings made by the Company with the Securities and Exchange Commission. Each
Shareholder or Xx. Xxxx, as the case may be, has had an opportunity to ask
questions and receive answers from the officers of the Company regarding the
terms and conditions of this transaction and the Company's business and
financial condition. Except as expressly set forth herein, no representations or
warranties, oral or otherwise, have been made to the Shareholders or Xx. Xxxx
including, without limitation, any representations concerning the future
prospects of the Company.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes the following representations and warranties
to the Shareholders and Xx. Xxxx, each of which is true and correct on the date
hereof, shall remain true and correct hereafter, shall be unaffected by any
investigation heretofore or hereafter made by the Shareholders and Xx. Xxxx and
shall survive the transactions provided for herein.
4.1. Organization. The Company is a corporation validly existing under
the laws of the State of Wisconsin.
4.2. Power. The Company has all requisite corporate power to enter
into this Agreement and to carry out the transactions contemplated hereby.
4.3. Authority. The execution and delivery of this Agreement and the
consummation of the transactions provided for herein have been duly authorized
by the Board of Directors of the Company. No other corporate act or proceeding
on the part of the Company or its shareholders is necessary to authorize this
Agreement or the consummation of the transactions provided for herein. This
Agreement constitutes a valid and binding agreement of the Company, enforceable
in accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally,
and by general equitable principles.
5. COVENANTS OF SELLERS
In consideration of the repurchase of the Shares contemplated
hereunder, each Seller agrees that, for a period of ten (10) years from the date
of this Agreement, it or he will not, nor will it or he permit any of its or his
affiliates, directly or indirectly, without the prior written consent of the
Company duly authorized by a majority of its Board of Directors, to:
(a) beneficially own (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, any Common Stock or
other securities of the Company entitled to vote generally for the election of
directors or securities convertible into such securities ("Voting Securities");
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(b) "solicit" proxies with respect to Voting Securities under
any circumstances or become a "participant" in any "election contest" relating
to the election of directors of the Company, as such terms are defined in
Regulation 14A promulgated under the Exchange Act, or seek to advise or
influence any person or entity with respect to the voting of any Voting
Securities;
(c) initiate, propose or otherwise solicit the Company's
shareholders for the approval of one or more shareholder proposals with respect
to the Company at any time, or induce or attempt to induce any other person to
initiate any shareholder proposal with respect to the Company;
(d) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving the Company or any of its securities or assets, except for
any filings required under the Exchange Act, or the rules promulgated
thereunder, with respect to the transactions contemplated by this Agreement;
(e) take any action with the purpose of requiring the Company
to make a public announcement regarding the possibility of an extraordinary
transaction involving the Company or any of its securities or assets, except for
any filings required under the Exchange Act, or the rules promulgated
thereunder, with respect to the transactions contemplated by this Agreement;
(f) take any action, alone or in concert with others, to
acquire or affect control of the Company or to influence the management, Board
of Directors or policies of the Company;
(g) request the Company, its Board of Directors or any
representative of the Company, directly or indirectly, to waive or amend any
provision of this Article 5; or
(h) encourage or assist any other person or entity to do any
of the foregoing or disclose any intention, plan or arrangement relating to the
foregoing, except for any filings required under the Exchange Act, or the rules
promulgated thereunder, with respect to the transactions contemplated by this
Agreement.
6. MISCELLANEOUS
6.1. Further Assurance. From time to time, at the Company's request and
without further consideration, the Shareholders and Xx. Xxxx will execute and
deliver to the Company such documents and take such other action as the Company
may reasonably request in order to consummate more effectively the transactions
provided for herein.
6.2. Disclosures and Announcements. Announcements concerning the
transactions provided for in this Agreement by the Company on the one hand, and
Sellers on the other hand, shall be subject to the approval of the other party
in all essential respects, except that approval of the Sellers or the Company,
as the case may be, shall not be required as to any statements and other
disclosures of information which the other party may be required to make
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pursuant to any rule or regulation of the Securities and Exchange Commission,
the Nasdaq Stock Market or any applicable law.
6.3. Equitable Relief. Without prejudice to the rights and remedies
otherwise available to the Company, the Sellers agree that money damages would
not be a sufficient remedy for any breach of this Agreement by the Sellers and
that the Company shall be entitled to specific performance and to injunctive or
other equitable relief as remedies if the Sellers breach or threaten to breach
any of the covenants contained in this Agreement.
6.4. Law Governing Agreement. This Agreement may not be modified or
terminated orally, and shall be construed and interpreted according to the
internal laws of the State of Wisconsin excluding any choice of law rules that
may direct the application of the laws of another jurisdiction.
6.5. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to the transactions contemplated herein,
and there have been and are no agreements, representations or warranties between
the parties other than those set forth or provided for herein.
6.6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.7. Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
XXXX COMPANY ROCK CREEK PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
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Xxxxxxx X. Xxxx Xxxxx X. Xxxx
Chairman, President and Managing General Partner
Chief Executive Officer
XXXXXXX X. XXXX, SVCC TTEE
THE XXXX CHILDREN'S TRUST
FBO XXXXX X. XXXX U/A/D 12-31-84
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Trustee
XXXXXXX X. XXXX, SVCC TTEE
THE XXXX CHILDREN'S TRUST
FBO XXXXXXX X. XXXX U/A/D 12-31-84
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Trustee
XXXXXXX X. XXXX, TRUSTEE
THE XXXXX X. XXXX GRANTOR RETAINED
ANNUITY TRUST, DATED MAY 29, 1998
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Trustee
XXXXX X. XXXX INDIVIDUAL
RETIREMENT ACCOUNT
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, individually
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EXHIBIT A
SHAREHOLDER NUMBER OF SHARES AMOUNT
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Rock Creek Partners, Ltd. 350,600 $ 7,187,300
Xxxxxxx X. Xxxx, SVCC TTEE 166,950 3,422,475
The Xxxx Children's Trust
FBO Xxxxx X. Xxxx U/A/D 12-31-84
Xxxxxxx X. Xxxx, SVCC TTEE 163,850 3,358,925
The Xxxx Children's Trust FBO Xxxxxxx X.
Xxxx U/A/D 12-31-84
Xxxxxxx X. Xxxx, Trustee 34,500 707,250
the Xxxxx X. Xxxx Grantor Retained
Annuity Trust, dated May 29, 1998
Xxxxx X. Xxxx Individual Retirement
Account 10,000 205,000
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725,900 $14,880,950
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