Exhibit 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of April 18, 2002, by and between
First Reserve, Inc. (the "Company") and Xxxxx X. Xxxxxxxx (the "Seller").
WHEREAS, the Company wishes to purchase, and the Seller is willing to sell,
39,700 shares of the outstanding common stock of the Company (the "Shares") from
the Seller in exchange for the Purchase Price (as herein defined), subject to
the terms and conditions contained in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the foregoing recitals are true
and correct and further agree as follows:
1. Purchase and Sale. On or before April 19, 2002 (the "Closing"), the
Seller shall sell, assign, transfer, convey and deliver the Shares to the
Company, free and clear of any and all liens, claims and encumbrances, and the
Seller shall evidence such transaction by delivering to the Company certificates
for the Shares along with stock power(s) duly endorsed in blank, in the name of
the Company, with all applicable documentary stamp and/or transfer taxes paid by
the Seller.
2. Consideration. In consideration of the conveyance of the Shares to
Company, at the Closing the Company shall deliver to the Seller $53,595 (the
"Purchase Price") in cash by bank or Company check or wire transfer of funds.
3. Seller's Representations and Warranties. In order to induce Company to
enter into this Agreement and purchase the Shares, the Seller makes the
following representations and warranties to Company, which representations and
warranties shall be true and correct as of the Closing as well as on the date
hereof:
3.1 All action on the part of the Seller necessary for the
authorization, execution, and delivery of this Agreement, the performance of all
obligations of the Seller hereunder, and the sale and delivery of the Shares has
been taken or will be taken prior to the Closing, and this Agreement constitutes
the legal, valid and binding obligation of the Seller, enforceable in accordance
with its terms. Neither the Seller's execution and delivery of this Agreement
nor its consummation of the transactions contemplated hereby requires the
approval or consent of any third party.
3.2 The Seller is the sole legal, record and beneficial owner of the
Shares and has the right now and until the Closing to sell the Shares. The
Shares are duly and validly issued and authorized, fully paid and
non-assessable. Upon the conveyance of the Shares as
contemplated hereby, the Company will be vested with legal and valid title to
the Shares, free and clear of all liens, pledges, security interests,
irrevocable proxies, encumbrances or restrictions of any kind.
4. Company's Representations and Warranties. In order to induce the
Seller to enter into this Agreement and sell the Shares, Company makes the
following representations and warranties to the Seller, which representations
and warranties shall be true and correct as of the Closing as well as the date
hereof:
4.1 All corporate action on the part of the Company necessary for the
authorization, execution, and delivery of this Agreement and the performance of
all obligations of the Company hereunder has been taken or will be taken prior
to the Closing, and this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms. Neither the
Company's execution and delivery of this Agreement nor its consummation of the
transactions contemplated hereby requires the approval or consent of any third
party.
4.2 Neither the Company's execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby requires the
approval or consent of any third party.
5. Survival and Indemnification.
5.1 The representations, warranties, covenants and agreements
contained herein to be performed or complied with after the Closing shall
survive without limitation as to time, unless the covenant or agreement
specifies a term, in which case such covenant or agreement shall survive until
the expiration of such specified term.
5.2 The party against whom indemnification is sought (the
"Indemnifying Party") in writing of any claim for indemnification, specifying in
detail the basis of such claim, the facts pertaining thereto and, if known, the
amount, or an estimate of the amount, of the liability arising therefrom. The
Indemnified Party shall provide to the Indemnifying Party as promptly as
practicable thereafter all information and documentation necessary to support
and verify the claim asserted and the Indemnifying Party shall be given
reasonable access to all books and records in the possession or control of the
Indemnified Party or any of its affiliates which the Indemnifying Party
reasonably determines to be related to such claim.
6. Expenses. Except as otherwise provided herein, each of the parties
will bear their own costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby.
7. Notices. Any notices, requests, demands and other communications
required or permitted to be given hereunder must be in writing and will be
deemed to have been duly given when personally delivered or facsimile
transmitted, or three days after deposit in the United
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States mail, by certified mail, postage prepaid, return receipt requested, at
the addresses set forth on the signature page hereto.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersede all prior agreements, understandings,
negotiations and discussions, both written and oral, between the parties hereto
with respect to the sale of the Shares to the Company.
9. Benefits; Binding Effect; Assignment. This Agreement is for the
benefit of and binding upon the parties hereto, their respective successors and,
where applicable, assigns. Neither party may assign this Agreement or any of its
rights, interests or obligations hereunder without the prior approval of the
other party.
10. Waiver. No waiver of any of the provisions of this Agreement will be
deemed to constitute or will constitute a waiver of any other provision hereof
(whether or not similar), nor shall any such waiver constitute a continuing
waiver unless otherwise expressly so provided.
11. No Third Party Beneficiary. Unless otherwise expressed in this
Agreement, nothing expressed or implied in this Agreement is intended, or will
be construed, to confer upon or give any person or entity other than the parties
hereto and their respective successors and assigns any rights or remedies under
or by reason of this Agreement.
12. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which will be deemed to be one and the same
instrument.
13. Disputes. All claims, disputes and other matters in question between
the parties to this Agreement, arising out of or relating to this Agreement or
the breach thereof, shall be filed and heard only in the state and federal
courts of Florida sitting in Miami-Dade County. In the event of such litigation,
the prevailing party shall be entitled to an award of attorneys' fees and costs
(including pre-trial, trial or appellate level costs).
14. Remedies Cumulative. No remedy made available by any of the provisions
of this Agreement is intended to be exclusive of any other remedy, and each and
every remedy is cumulative and is in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity.
15. Equitable Remedies. The Seller acknowledges and agrees that Company
will not have an adequate remedy at law in the event of any breach by the Seller
of this Agreement and that, therefore, Company shall be entitled, in addition to
any other remedies which may be available to it, to injunctive and/or other
equitable relief to prevent or remedy a breach.
16. Further Documentation. The parties shall execute and deliver any other
instruments or documents and take any further actions after the execution of
this Agreement,
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which may be reasonably required for the implementation of this Agreement and
the transactions contemplated hereby.
17. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
FIRST RESERVE, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Chief Executive Officer
SELLER:
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
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