STOCK PURCHASE AGREEMENT
Exhibit
10.4
STOCK PURCHASE AGREEMENT (the
“Agreement”) dated as of May 22, 2009, among Solidus Company, L.P., a Tennessee
limited partnership (“Solidus”), and E. Xxxxxx Xxxxxx (“Xxxxxx”)
(collectively, the “Sellers” and each a “Seller”) on the one hand, and
X. Xxxxxxxxx’x Corporation, a Tennessee corporation (the “Company”), on the
other hand.
The Sellers wish to sell to the
Company, and the Company wishes to purchase from each Seller, subject to the
terms and conditions hereof, the number of authorized and issued shares of
Common Stock, $.05 par value, of the Company (the “Common Stock”) set forth
opposite such Seller’s name on Schedule 1 hereto
(the “Shares”), which is a total of 808,000 shares.
In consideration of the foregoing and
the agreements made herein, the parties hereto agree as follows:
ARTICLE
I
STOCK
PURCHASE
1.1. Purchase and
Sale. Upon the terms herein set forth, the Sellers hereby
sell, free and clear of all liens, claims, restrictions, security interests or
encumbrances, the Shares to the Company, and the Company hereby acquires the
Shares for a purchase price of $ 3.60 per share equaling an aggregate purchase
price of $2,908,800 (the “Purchase Price”), payable to the Sellers in
immediately available funds (the “Stock Purchase”).
ARTICLE
II
DELIVERIES
2.1. Sellers’
Deliveries. The Sellers shall deliver contemporaneously
herewith:
(A) Certificates
representing the Shares, duly endorsed (or accompanied by duly executed stock
powers), for transfer to the Company.
(B) Evidence
reasonably satisfactory to the Company that all liens, claims, restrictions,
security interests or encumbrances of any kind on the Shares have been released
(or are being released upon the delivery of the Purchase Price) and any
financing statements relating thereto are authorized to be
terminated.
(C) Evidence
reasonably satisfactory to the Company that all requisite resolutions or
approvals of or on behalf of the Sellers (or the partners of Solidus)
authorizing and approving the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been made or
given.
2.2. Company
Delivery. At the Closing, the Company will deliver to Sellers
the Purchase Price by wire transfer to the account designated by the
Sellers.
1
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLERS
The Sellers, jointly and severally, to
induce the Company to enter into and consummate the transactions contemplated
hereby, hereby represent and warrant as follows:
3.1. Ownership. The
Sellers are the sole record owners of the Shares and such Shares are free and
clear of all liens, security interests, pledges, proxy restrictions,
encumbrances or other interests of any kind whatsoever (other than a pledge to
Pinnacle Financial Partners, N.A. (“Pinnacle”) which is being released and
terminated simultaneously herewith). Except as noted in the preceding
sentence, the Sellers have not granted any interests or rights to any third
party with respect to the Shares, and there are no agreements or arrangements
obligating them to grant any such interest or rights to any third
party. Upon the delivery of the certificates for the Shares or the
delivery of the shares by DWAC transfer to Computershare as the transfer agent
for the Company’s common stock, the Company will obtain good, valid and
marketable title to the Shares free and clear of all liens, claims and
encumbrances whatsoever.
3.2. Binding
Agreement. The Sellers have all requisite power and authority
to enter into this Agreement and perform their obligations
hereunder. The execution, delivery and performance of this Agreement
by Solidus has been duly and validly authorized by all necessary partnership
action on the part of Solidus, including, without limitation, any required
approval of limited partners. This Agreement constitutes a valid and
binding agreement of the Sellers enforceable against each of them in accordance
with its terms, and no consent of any federal, state or other local authority or
any other person or entity that has not been obtained is required to be obtained
by the Sellers in connection with the consummation of the transactions
contemplated by this Agreement.
3.3. No
Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of and
compliance with the terms and conditions hereof do not and will not with the
passing of time or giving of notice of conflict with, result in a breach of, or
right to cancel or constitute a default under, any agreement or instrument to
which either of the Sellers is a party, by which they are bound or to which the
Sellers or the Shares are subject.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
4.1. Existence and
Qualification. The Company is a corporation validly existing
and in good standing under the laws of the State of Tennessee.
4.2. Authority. The
Company has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder.
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ARTICLE
V
COVENANTS
AND AGREEMENTS
5.1. Orderly
Market. Sellers hereby covenant and agree as
follows:
(A) For
a period beginning on the date of this Agreement and ending on the second
anniversary date hereof, the Sellers will not, without the prior consent of the
Company’s Board of Directors specifically expressed in a resolution adopted by a
majority of the directors of the Company who are not agents, affiliates,
employees, directors or designees of a Seller, sell, transfer, or otherwise
dispose of Remaining Voting Securities in excess of the following number of
shares of Common Stock (adjusted for any stock splits) in the aggregate during
the time periods set forth below, except to any affiliate, subsidiary or entity
under the direct or indirect control of, or under common control with, the
Seller:
|
Dates
|
Number
of shares of Common Stock
|
|
date
of this Agreement through December 31, 2009
|
100,000
|
|
calendar
2010
|
200,000
|
|
January
1, 2011 to second anniversary hereof
|
100,000
|
(B) For
purposes of this subsection: “Seller” means E. Xxxxxx Xxxxxx and
Solidus Company, L.P., its or his successors, affiliates, subsidiaries, and
other corporations, entities and persons under its or his direct or indirect
control or under common control or acting on its or his behalf or in concert
with it or him, and, as to an individual, his executors, heirs and
beneficiaries; and “Remaining Voting Securities” means common stock and any
other securities owned by Seller entitled to vote generally for the election of
the Company’s directors and not otherwise purchased by the Company pursuant to
the Stock Purchase.
5.2. Further
Action. Each of the parties hereto shall execute such
documents and take such action as may be reasonably requested by another party,
as may be required by the terms and provisions of the Agreement to carry out the
provisions and purposes of this Agreement.
ARTICLE
VI
GENERAL
PROVISIONS
6.1. Assignment. This
Agreement may not be assigned by any party hereto, except this Agreement will
inure to the benefit of any successor-in-interest of the Company or purchaser of
all or substantially all the Company’s assets and will bind any persons that may
be a “Seller” under Section 5.1.
6.2. Counterparts. This
Agreement may be executed in counterparts and each such counterpart shall be
deemed to be an original instrument.
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6.3. Entire
Agreement. This Agreement, including the exhibits and other
documents referred to herein or delivered pursuant hereto, contains the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
6.4. Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
6.5. No Third Party
Beneficiaries. The parties do not intend to confer any benefit
hereunder on any person or entity other than the parties hereto.
6.6. Injunctions. It
is agreed that each party shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to specifically enforce the terms and
provisions thereof in any action instituted in any court of the United States or
any state thereof having subject mailer jurisdiction, in addition to any other
remedy to which such party may be entitled, at law or in equity.
6.7. Survival. All
provisions of this Agreement shall survive the Closing hereunder and shall
remain applicable for five years; provided that the representations and
warranties in Section
3.1 shall survive indefinitely.
[Signature
Page Follows]
4
IN WITNESS WHEREOF, the
parties have executed this Agreement and caused the same to be duly delivered on
their behalf as of the day and year first written above.
SOLIDUS
COMPANY, L.P.
By: Its
General Partner, Solidus General Partner, LLC
By: /s/ E. Xxxxxx
Xxxxxx
Name: E.
Xxxxxx Xxxxxx
Its:
Chief Executive Officer
E.
XXXXXX XXXXXX
/s/ X. Xxxxxx
Xxxxxx
X. Xxxxxx
Xxxxxx
X.
XXXXXXXXX’X CORPORATION
By: /s/ R. Xxxxxxx
Xxxxx
Name: R.
Xxxxxxx Xxxxx
Its: Vice
President and Chief Financial Officer
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Schedule
1
|
Seller
|
Number of Shares
|
Represented by Cert.
No(s).
|
|
Solidus
Company, L.P.
|
800,000
|
61406
|
|
|
|
|
|
E.
Xxxxxx Xxxxxx
|
8,000
|
Street
name at Xxxxxxx
Xxxxxx
|
X-
0
